How A Key Story About The 1919 Black Sox Scandal Was Completely Made Up… Due To A Confused Understanding Of Copyright

from the say-what-now? dept

It’s baseball playoff season, and this week, as many have been highlighting, it’s actually the 100th anniversary of the infamous 1919 Black Sox scandal, in which a bunch of players from the Chicago White Sox were later accused of deliberately throwing games in a deal with some gamblers. I’ve seen a few stories covering “facts and myths” about the scandal (which only really came to light the following year), but the NY Times has really great debunking of some myths about the scandal by the historian of Major League Baseball, John Thorn.

So, what’s this got to do with Techdirt? Well, according to Thorn’s piece, a key fact that many have associated with the Black Sox was entirely made up, and the reason for it being made up was a confused (and incorrect) understanding of copyright law. To understand what happened, we need to take a few steps back. First, there’s a fairly long history of what’s known as “fictitious entries” that have been used in various reference works for ages — with it being especially common in map making, where the practice is sometimes referred to as “trap streets.” These are entirely fictitious streets (or sometimes towns) that are added to a map to try to catch a competitor who is just copying the work. In short, if your fake street (or dictionary entry, or whatnot) is showing up elsewhere, you know that it was copied from you. We even saw a very recent example of this kind of technique when the annotation site Genius altered apostrophe’s to try to “catch” Google allegedly copying Genius’s lyrics (which turned out not to be the case). Google itself has used this technique to catch Microsoft copying its search indexing for Bing.

And, it remains a valid technique for catching copying — which some might call a form of plagiarism. However, when it comes to copyright, it’s a bit of a different story, because the underlying reference facts often aren’t subject to copyright in the first place. The key court case on all of this is the famous Feist case in which one telephone directory company was accused of infringement for copying another phone book, with the “evidence” being some fake entries (kids: in the pre-internet days, to figure out how to contact someone, you went through a giant book of phone numbers). But as the Supreme Court eventually ruled, the directory listings weren’t subject to copyright in the first place and (in the US, at least) you don’t get a copyright for merely assembling a collection of facts if there was no creativity involved (which there shouldn’t be for a phone directory!).

That brings us back around to the Black Sox. The most well known book covering the Black Sox scandal was the book Eight Men Out by Eliot Asinof, which was published in 1963 (Asinof also co-wrote the movie by the same title that came out in 1988 and was quite popular). A key character in the book was a figure by the name of “Harry F.” As described on the “famous trials” website:

In his book, Asinof claimed that Rothstein told Sullivan in no uncertain terms that he did not want the Series to go to nine games–and to make sure it doesn’t. In the book’s account, Sullivan contacted a Chicago thug known as “Harry F” who then paid a visit to the starting Sox pitcher in game eight, Lefty Williams, and threatened harm to him or his family if the game were not thrown–in the first inning. Asinof described Williams being greeted by a cigar-smoking man in a bowler hat when he and his wife were returning home from dinner. The man asked to have a word with Williams in private. He did–and Williams got the message.

That same site notes that years later, in 2003 (40 years after publication), Asinof admitted that he’d made up the character entirely. And, back to Thorn’s piece, we learn why:

As to Harry F., who was said to have threatened Lefty Williams if he did not ?blow up? in the first inning of Game 8 (the 1919 World Series was a best-of-nine affair, and the White Sox were on the brink of elimination): He did not exist. Asinof created Harry F., he later admitted, ?to guard against copyright infringement.?

In other words, rather than a “trap street,” it appears that Asinof tried to create a “trap character.” This seems incredibly stupid for many, many reasons. While this happened decades before the Feist case, it’s hard to see how there would have been a legitimate copyright case in the first place. Copyright only protects the specific expression, and not the idea. And, yes, if others included the story of Harry F., then it would show that they used Asinof’s book for research, but that’s about it. And reports are that others did, indeed, copy and include the Harry F. story. That last link notes that Asinof admitted that one other character in his book is also fictional, but he never said who.

Of course, the end result of this is a mess. It certainly didn’t protect anyone’s copyright. It did lead to a lot of people believing false things about the Black Sox scandal that have only just recently started to be corrected. And, because of that, it has cast a pretty broad shadow across Asinof’s work, in that most modern retellings of the story focus on the lack of credibility that Asinof’s book is now considered to have, considering its “historically inaccurate detail” and exercising of “artistic license.”

And, thus, this all comes back to yet another story of someone so overly focused on over-protecting his “copyright” that he harms his own reputation and credibility… without doing a damn thing to protect his copyright.

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Comments on “How A Key Story About The 1919 Black Sox Scandal Was Completely Made Up… Due To A Confused Understanding Of Copyright”

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Rico R. (profile) says:

Re: Since NOT a fact, it's protected by copyright!

That’s not what the Supreme Court said in Feist (which you would have known if you clicked the link in the article). And just because something isn’t real doesn’t necessarily make it copyright protected. A talking time machine doesn’t exist, but if you were to create a story about one, that doesn’t mean you infringed on my copyright. It’s the idea/expression dichotomy, not the truth/myth dichotomy, sheesh! Maybe, after 20 years, you STILL don’t understand copyright, frequent troller!!

bhull242 (profile) says:

Re: Since NOT a fact, it's protected by copyright!

I think I see the problem here. It is true that all facts are not protected by copyright. However, the inverse of that statement, that all things that are not facts are protected by copyright, is not true. There are many non-facts that aren’t protected by copyright, even if we exclude the cases where the copyright expired, such as scénes á faire and pure ideas.

Additionally, you misunderstand what is meant by “facts”. It also includes statements presented as if they were true facts in such a way that reasonable people would presume them to be true. That is, erroneous or deceitful statements of fact in a non-fictional work are not protected by copyright, either.

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cpt kangarooski says:

Feist isn’t the right case to be looking at for this sort of thing at all. The correct case to use as precedent is Nash v. CBS, Inc., 691 F. Supp. 140 (N.D. Ill. 1988).

Nash wrote a book that alleged that John Dillinger faked his infamous death outside a movie theater in 1934 and that he continued to live anonymously for quite some time after. The books presented this as beijg True, and gave many supporting facts. Regardless of whatever the objective truth might be (since the Court didn’t know and didn’t care) the idea that Dillinger survived and faked his death is unprotectable under copyright, and the facts cited — because they are presented as fact — are unprotectable under copyright, regardless of their objective truth.

Essentially it is a form of estoppel; having claimed that this is a fact, you can’t go back on it later and say it wasn’t after people have relied on it being a fact. Likewise, the hypothesis based on the facts is just an idea and is not copyrightable.

CBS therefore did not infringe when they made and aired an episode of Simon & Simon that also suggested Dillinger survived and hid out and was still alive and well, citing some of the same facts as were in the book.

Anonymous Coward says:

under the new eu law,s you,ll need permission to use a snippet or a few sentence,s from a newspaper ,
whether its, a fact or opinion, true or speculation .
Of course copyright will reduced free speech and political discussion
and freedom of expression ,
most bloggers or forum users will not have the time or the money to seek permission to show
a quote from an article or an interview with a politician or a government
minister .
The web is a 2 way medium , alot of the content is made by ordinary users
or bloggers

Anonymous Coward says:

"These are entirely fictitious streets (or sometimes towns) that are added to a map to try to catch a competitor who is just copying the work"

Interesting, are these fake entries available to the unsuspecting motorist who will blindly obey the happy voice telling them to drive their vehicle into a large body of water?

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Anonymous Coward says:

Re: Re: Re: main point

"so the point is that Copyright rules are confusing?"

No, that is not the point but since you brought it up … enforcement of so called Intellectual Property law is not congruent with the written laws and prior judicial implementation. Selective enforcement of the law means that there is no law.

You like obvious observations? I guess it would be advantageous if one were lazy.

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