Two Truths and a Lie — How blurring the lines between fact and fiction can undermine copyright protection

“In the early morning of August 24, 1875, eight members of the notorious Donnelly family of Lucan, Ontario, armed with nothing more than clubs, won a pitched street battle against eighteen townspeople intent on revenge. Or did they?”¹ These are the opening words of a recent Federal Court case, Winkler v Hendley, which involved the question of whether copyright should subsist in fictional elements of a work that was marketed, published and perceived to be historically factual.  

In his 1954 book, The Black Donnellys, Thomas P. Kelley recounted the history of the notorious Donnelly family; from their migration to Lucan, Ontario from Tipperary, Ireland, to their long-running trouble with the law and their neighbours, and ultimately, to their unsolved murders. Over the years, the Donnelly family tale has been heralded as one of Canada’s most infamous “true crime” stories. The Black Donnellys, in particular, presents itself as “The True Story of Canada’s Most Barbaric Feud.” In libraries across Canada, The Black Donnellys has been published, presented, and accepted as non-fiction for the last 67 years. The dramatic account of the Donnelly family feud has been trusted and relied upon by readers, researchers, and storytellers, alike.

Mr. Hendley, the defendant author, relied on the factual tellings in The Black Donnellys as a primary source for his original literary work, The Outrageous Tale. In doing so, he recounted many of the historical “facts” published in The Black Donnellys, which the plaintiffs, Mr. Kelley’s descendants, alleged infringed the copyright. To overcome the principle that there is no copyright in facts the plaintiffs asserted that several of the historical accounts presented as true in The Black Donnellys were, instead, elaborations of the truth, or in some cases the pure product of Mr. Kelley’s imagination.  

The central question for the Court on the summary judgment motion was whether it is copyright infringement to copy details represented as facts in a prior work, but that were never really facts at all. In answer, the Court stated that where facts, even embellished or invented ones, are presented as historically accurate, the author presenting those facts cannot later claim copyright in them. 

The Court concluded that where an author credibly presents a work as historically factual, such facts then fall within the rule that there is no copyright in facts, regardless of whether their objective truth is later questioned or even disproved. Given this finding, once the facts were discounted the Court found that the remaining alleged copying did not amount to a substantial part and was not infringing.

Given today’s climate where fiction and half-truths are often presented as facts, authors should keep in mind the general rule that there is no copyright in facts, even if later discovered to be fiction.

For more information about eligibility for copyright, please contact a member of our Copyright & Digital Media team.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly. 

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