Re: Article on Protection of History

John J. Shaeffer <shaeffer[_at_]oslaw.com> wrote:
>
> 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).

Perhaps we simply disagree on your characterization of the Hoehling case. I do not agree that Hoehling holds that only verbatim copying would infringe. Admittedly, I have not read Hoehling's book, so I can't express an independent opinion as to whether the subsequent book and movie were infringing. But, accepting the court's characterization of the facts, it sounds like Universal's movie fictionalized the saboteur hypothesis to a great degree.

> 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.

There are a myriad of ways to express a historical event. Historical novels that place newly-created characters in historical settings, or that dramatize specific events or attribute specific dialogue to historical characters, are entitled to commensurate protection. Examples include recent movies such as "The Madness of King George" and "Titanic." [Lots of movies have been made about the Titanic, and each is distinctly different.]

By contrast, works that purport to be a dispassionate, factual investigation of evidence and that reach a conclusion purporting to be the "true" facts are necessarily entitled to less protection because they are primarily documentary and factual in nature (the evidence that remains is always the same, but is subject to different interpretations). Such works have very little expression outside of the specific words chosen. Hoehling's book appears to have been of the latter type. Hoehling simply wanted a piece of the action based on his claim that he was the first to come up with a specific sabotage theory. But because he didn't elaborate his theory beyond a bare bones explanation of how he reached his conclusion, there was no "expression" for the movie makers to draw upon. They had to create a character to fill the role of H's saboteur, and they lightly fictionalized the story in doing so.

[A counter example would be Jon Krakauer's "Into Thin Air." The TV movie that was made from the book was distinctly based on his point of view, rather than any of the competing accounts of the Everest disaster. I have no doubt that the TV movie would have been found infringing if it had been made without authorization, despite the lack of verbatim copying.]

Just as Cameron was able to make yet another movie about the Titanic, there is no reason why another movie could not be made about the Hindenburg. It could even be "based upon" Hoehling's book, if there were anything in the book to base it upon beyond the bare-bones factual account that the opinion describes. There is still room for many retellings of the Hindenburg tale with various levels of literary expression in each. The level of protection to which each is entitled depends on the work, not upon a far-too-generalized notion that all works of history should be treated as "literature rather than science."

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Fri Apr 24 1998 - 23:26:30 GMT