He sued Trivial Pursuit and lost. Trivial pursuit claimed ‘facts are not copyrightable’ among other things. Following the thread linked above, @Saint_Cad asks this question:
First, are facts not copyrightable? Second, can a fiction resembling a fact be copyrightable? Does it matter if the fiction purports to be fact?
Where would the line be drawn for ‘facts’, the elevation of mountain as the answer to a trivia question is one thing, a dissertation on the geological evolution of the Rocky Mountain chain would be a bit different.
In Nester’s Map & Guide Corp. v. Hagstrom Map Co. ,[29] a New York Corporation which published and sold Official New York Taxi Driver’s Guide sued Hagstrom Map Corporation for publishing and selling New York City Taxi & Limousine Drivers Guide , alleging violation of the Copyright Act of 1976. A United States Federal Court found that Nester’s selection of addresses involved a sufficient level of creativity to be eligible for copyright and enjoined Hagstrom from copying that portion of the guide. However, the court also found that fictitious entries (in this case, a “trap street”) are not themselves protected by copyright.
So it appears that copyright traps don’t convey copyright violations by the fact that they are fiction without other considerations.
Ultimately, the result is that Super Trivia II is not a work of fiction (despite the presence of a handful of fictional “facts”) and non-fiction works don’t receive the same degree of copyright protection as fiction.
I think that ruling is incorrect but perhaps that is because of the strategy Worth’s attorneys took. The ruling discusses how the facts were not copyrightable but never addresses that there were non-facts in the book. Or it did not make it clear in the ruling that a lie presented as a fact is a “fact” from a legal perspective. If so the ruling should have addressed that.
Suppose I write a fact-of-the day that I intentionally made up like
“Oniur Way was the first named street in the United States.”
Is that a “fact” legally even though it is purposefully not true? Is it not a work of fiction that is entitled to copyright protection? I don’t think that ruling addressed those questions. Is there a level where the amount of copyright traps would make it copyrightable? Suppose someone does not realize that our thread of “Made up trivia” was in fact made up trivia and took those “facts” and published them. Is that copyright infringement?
Under U.S. law, copyright protection automatically attaches (that is, you don’t “copyright it”) as soon as an original and creative work of expression (of the categories listed in the Copyright Act) is fixed in a perceivable medium.
Look at the requirements: original, creative, expression, fixation. Truthful isn’t one of them. Indeed, arguably a very large proportion of protected works are non-truth because they’re fictional.
Indeed facts in and of themselves (whether true facts or false facts) are not protectable at all. Expression of facts is protectable but it’s protection tends to be thinner than expression on non factual material.
When you ask whether “a lie” might be protectable (again, note use of “protectable” rather than “copyrighted”), it depends on the specifics of “the lie.” The idea behind the lie is not protectable because copyright law doesn’t protect ideas.
If you’re talking about how the lie is expressed, that expression has to be extensive enough to be deemed creative. So an entire essay expressing a lie is probably protectable but a single sentence expressing the lie is less likely to be considered creative.
I’m fairly certain that a book like John Hodgman’s The Areas of My Expertise would be categorized as a work of fiction. But presumably the value of a purported reference book like Super Trivia II is in the fact that almost all of the trivia therein is factual, not fiction.
In the case of the trivia game, the individual false facts wouldn’t be what is protected but rather whether there was a creative and original work of expression deserving protection. Selection and arrangement of facts can sometimes qualify as creative and original.
For example, the names, addresses, and telephone numbers in a telephone book and its alphabetical ordering aren’t creative. But other aspects of a telephone book might be, such as layout and design, or if the individual elements re selected and arranged in some creative and original way. Just listing all the phone numbers in a geographic area would not be creative selection.
If lies would be ineligible for copyright, that would apply to all fiction, which is absurd.
Copyright has nothing to do with truth and falsehood, and everything to do with creativity, originality, and - to use the word that comes up most often - expression. In other words, how you express the idea.
Example: If I have a list of presidents of the USA, and Benjamin Franklin is listed as #1, the list is probably not copyrightable (unless that list was a significant part of a novel), but if I would write a sentence about the things Benjamin Franklin did as president, that would be copyrightable.
To follow-up on Ascenray, this statement is not true. A work of non-fiction, unlike a listing of facts, normally shows creative expression. That gives it complete copyright protection, exactly like creative fiction.
No, it’s classified in the LoC as PN6165 .H64 2006 in American Wit and Humor. It’s Dewey Decimal number is 818/.607. That puts it in the non-fiction section. That’s the way it’s shelved in my local libraries.
If you can’t copyright a lie, thousands of brand slogans might need to be changed. Whole industries are built on bullshit.
There’s a funny Ron White bit on slogans for diamond companies. “Diamonds are forever” becomes “Render her speechless” becomes “Diamonds. That should shut her up”.
This interjection, meant to be light hearted, is irrelevant. We now return to a more learned discussion of copyright law.
One of those ‘Get A Star Named After You!’ swindles advertises a lot on the radio news station I prefer. They always mention that their ‘registry’ will be registered at the copyright office. As that’s the one thing in their ad I believe, I’d say you can copyright a lie.
Re Slogans
Most slogans would fall into (I think. IANAL) the category of puffery. For example, if I claim my restaurant has ‘the best pizza in town’ I don’t have to back that claim up with evidence. If OTOH, I claim ‘my pizza was voted best in town’ I’m making a factual claim I have to prove.
The form of protection I had heard was that the act of curation of a set of facts is copyrightable. So the overall work is copyright. But within, an individual fact isn’t.
The point that an individual fact was actually deliberately false doesn’t suddenly make the whole entity a work of fiction and the individual entries subject to more close protection. Arguing a special case of creative work for an individual planted trap is probably a very large stretch, especially if the end user is intentionally not told it is false, and is operating under the reasonable assumption that the fact is indeed actually true. The purpose of the trap was to prevent plagiarism of the overall work. One might argue that the purpose of a fact book includes enabling further creative works. It isn’t the fault of the user if they don’t know you have deliberately added a falsehood. Building a game using facts from a curated factbook would seem to be a perfectly reasonable expected use of the work.
If I had written the factbook I would be miffed if I didn’t get credit somewhere in the game documentation, but that is about as much as I would expect to get.