from the facts-in-evidence dept
It's kind of crazy how often it seems biographies, theoretically personal tales made of facts, breed copyright disputes. In most cases, the aggressors in these cases somehow think that a factual representation of what the subject of a book said in the past can somehow be owned and/or controlled. Facts, of course, cannot be copyrighted, nor can history itself, which is essentially all a quotation is. That very simple distinction seems to be lost on a great many people, unfortunately.
Joining their unfortunate ranks is Craig Shirely, an author who has produced books in the past on Ronald Reagan and is presently threatening to sue Rick Perlstein for copyright infringement in his new Reagan book, The Invisible Bridge. Shirley's demands are, um, heavy.
Shirley's attorney is demanding that the publisher pulp Perlstein's book, pay $25 million in damages, and take out ads apologizing to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon.A book burning, twenty-five mil-do, and paid apologetic ads in seven different publications? Well, okay then. You're probably thinking that Shirley has some kind of open and shut case with those kinds of demands. He doesn't. What he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley's previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that's about it, and most of those sections are recounting a setting or happening in history.
In the first item on the latter list, the two books do sound alike: Describing the red-light district in Kansas City, Perlstein echoes not just the info in Shirley's text but Shirley's words "festooned" and "smut peddlers." After that, though, we essentially get a list of places where the two writers cited the same facts. Facts are not copyrightable, and one pair of similar sentences does not an infringement make. I don't see a dollar's worth of damages here, let alone 25 million.And it's not as though Perlstein is attempting to hide his use of Shirley's books as source material. The book-in-print directs those interested in the source material to Perlstein's website where he lists them out, including several of Shirley's books. He further credits Shirley's work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier.
Shirley and his lawyers try to twist nearly all of this. They also show a fairly weak understanding of copyright law, often confusing plagiarism and copyright infringement. The two may be related, but are not the same thing. Again, copyright covers the specific expression, but not the idea or the facts. And yet, Shirley's lawyers argue that Perlstein's use of the same facts where he expresses them differently is merely evidence of Perlstein trying to "hide" his actions. Yes, that's right. The act of rewriting the same factual information is being used as evidence of infringement because it's different. But that's not how copyright law works.
Perlstein's publisher, Simon and Schuster hit back strongly, explaining the basics of copyright to Shirley's lawyers:
Your claim ignores the most basic principal of copyright law: copyright only protects an author's original expression. It is therefore important in any copyright analysis to distinguish between original expression and the unprotected elements of a work. Certain well-settled principles govern that analysis and nothing you have drawn to our attention supports a I conclusion that Mr. Perlstein has appropriated Mr. Shirley's protected expression.There's a lot more in those letters which you can read below. This includes an attempt by Shirley to twist an email from Perlstein into saying something it did not. Apparently in angrily discussing the citations (which Perlstein put online, rather than directly in the book), Perlstein trotted out the (overly abused) line "information wants to be free." Shirley's lawyers attempt to portray that as evidence of copyright infringement by Perlstein. However, as Perlstein's lawyers point out, this is not even remotely accurate. The point Perlstein was making was about "open sourcing" his sources by putting them online, making them much easier to use for research purposes, rather than having them locked up in a book. These are the very same sources in which Perlstein regularly cites Shirley.
First, copyright does not protect facts, ideas or theories.... This is true even if the author is the first to have discovered the facts or formulated the ideas. Contrary to your assertion in your letter, copyright does not protect "facts and ideas Mr. Shirley first discovered an developed."....
All of the examples you cite consist of historical facts from the life of Ronald Reagan, which are unprotected by copyright. Thus, for example, you cite to page 770 of Invisible Bridge, but the historical fact that the manager threatened to cancel the delegation's reservation derives from Time magazine, where Mr. Shirley obtained this information. Mr. Perlstein read the same Time article, but nonetheless chose to credit your client's secondary use of the work. Similarly, Mr. Shirley cannot possibly own a copyright in the fact that the major presidential candidates released their medical records and the information those records contained or that CBS News reported on the number of delegates Ford had accrued. These historical facts were widely reported in contemporaneous news reports. To the extent there can be said to be any similarity of phrasing in the way the two books convey these facts, the similarities consist of commonly-used expressions that cannot be the basis for a claim.
Mr. Perlstein's use of electronic source notes, with links to the actual source materials, is an innovative and dramatic means of full disclosure. As the "Note on Sources" explains, Mr. Perlstein made the sources available electronically, rather than in hard copy form, to make it easier for readers to access the sources directly and engage with them. In the Internet age, readers are far more likely to actually view the source material when it is presented this way then they ever would be to seek it out in paper form at a library. Indeed, Mr. Perlstein's comments about "open sourcing" in his correspondence with your client cannot be twisted as your letter suggests; but instead serve to underscore his ultimate purpose to provide ready access to and openness concerning his sources. To that end, when your client contacted him with a question about how his book was sourced, Mr. Perlstein provided him with a link to his source notes and his Note on Sources, all before publication.Completely destroying the entire book, handing over $25 million and issuing a public apology for no actual infringement? That's not going to happen. And, perhaps Shirley's lawyers are recognizing this. While the letters promise a pre-publication lawsuit would be filed on July 30th, the book was published on August 5th and as far as we can tell, no actual lawsuit has yet been filed.
It should also be noted that Mr. Perlstein's electronic notes serve another purpose that ultimately may well help your client's presumed goal to sell books. As can be seen on Mr. Perlstein's site, a reader who clicks on one of the citations to Reagan's Revolution is automatically linked to a Google Books page where he or she can not only read the cited page from Mr, Shirley's book but is also given the opportunity to purchase the book, This is hardly the design of an author's intent to "steal" another's work.