Re: Article on Protection of History

On Wed, April 22, 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 4/20/98, John J. Shaeffer <shaeffer[_at_]oslaw.com> wrote:
> >
> > I think we have reached some common ground here. I understand that
> > you agree that the literary expression encompassed in any work
> > founded on history should be entitled to broad copyright protection.
> > Unfortunately, the current state of the law does not share our
> > consensus.
>
> Everyone agrees that "the literary expression encompassed in any
> work founded on history should be entitled to [] copyright protection."
> The disagreement, which you characterize as "broad" versus "narrow," is
> really a disagreement over what constitutes "idea" versus "expression."
>
> To be "expression," a work must be original (it must possess a
> minimal degree of creativity). But not all original, creative
> contributions to history are "expression." A theory as to what "might"
> have happened in history is just that -- a theory. It might be an
> original, creative theory, but it is not protected by copyright.
>
> Copyright does not protect ideas. An author can keep an idea to
> him/herself, but once published, an idea becomes free for everyone to
> use. It contributes to the historical debate by which we determine
> "facts" and "history" -- what did or did not occur. That debate is the
> essence of the First Amendment, and the U.S. Supreme Court has held
> that the idea/ expression dichotomy is required by the Constitution.
>
> Unfortunately, the line between idea and expression is difficult if
> not impossible to draw predictably and consistently. What we call
> "expression" is really just a much more specific idea. So we have to
> decide what level of specificity is entitled to copyright protection,
> based on the competing policies of encouraging creation of new works
> (including the new theories contained within them), and of encouraging
> public debate about those theories. The inquiry is necessarily a
> fact-specific one. It is not true that current copyright law prohibits
> only verbatim copying. It is true that a work of history is currently
> given less copyright protection than a work of fiction.
>
> > We continue to differ on the extent to which there is any "objective
> > truth" in any exposition of history other than a simple recitation of
> > facts. The current state of Copyright law seems to align itself with
> > the scientific objectivity school of history, which fell out of favor
> > among the academic community more than 50 years ago. While historians
> > are retrenching from pure deconstructivism -- which taken to its extreme
> > rendered the study of history meaningless -- the overriding literary
> > ("creative") elements involved in any expression of history remain
> > critical in any evaluation. It is this broader notion of creativity
> > that is absent in the current discourse on the protection of works of
> > history under the copyright law.
>
> I disagree that currently copyright law aligns itself with the
> scientific objectivity school of history. Copyright law does state that
> "facts" are not protected by copyright, but it goes further: "ideas"
> (including theories) are not protected by copyright either, even if they
> are original. So it doesn't matter for copyright purposes whether
> history is objective or not; even original contributions to history are
> not protected except to the extent they constitute "expression."
>
> Your paragraph seeks to strike a different balance and draw a line
> between "a simple recitation of facts" and those elements which are
> "creative." Your argument is subject to the same criticism that you
> direct at existing law: pure deconstructivism would argue that there is
> no such thing as an objective fact, just as there is no such thing as
> objective history. Your line is just as difficult to draw as the line
> between "idea" and "expression."
>
> > Just so you know where my bias rests, I was counsel to Barbara
> > Chase-Riboud in her case against DreamWorks over the film "Amistad."
> > It was through that experience that I learned first hand the confusion
> > surrounding the protection of works founded on historical fact.
>
> I haven't read Ms. Chase-Riboud's book or the court's ruling, so I
> can't really comment on whether the case was correctly decided or not.
> But I would argue that any "confusion" that exists is not "confusion"
> concerning the state of the law, but merely the "confusion" that is
> inherent in the difficulty in drawing the line between idea and
> expression.

I wholly agree with your analysis. Works founded upon history should be subject to the same "idea"/"expression" dichotomy that applies to work of pure fancy. Moreover, I agree that a theory applied to facts should be treated no differently than an "idea." However, my contention rests with the protection of the expression of that theory -- whether in a historical novel or in a work of scholarship. Under the existing case law, the protection of such expression is entitled to only the "narrow" protection and courts have been unwilling to find infringement in the absence of verbatim copying. See Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980).

It is my contention that courts should view the expression of history more as literature rather than as science. By accepting that there are a myriad of ways to express a historical event, the concern that granting anything other than the narrowest of protections to works of history risked removing event from the public forum effaces.

John Shaeffer
Shaeffer[_at_]oslaw.com Received on Thu Apr 23 1998 - 15:08:24 GMT