Jay Robert Nash v. Cbs, Inc.
899 F.2d 1537, 17 Media L. Rep. (BNA) 1798, 14 U.S.P.Q. 2d (BNA) 1755 (1990)
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Rule of Law:
Copyright protection for a nonfiction work extends only to the author's original expression and not to the historical facts, theories, or discoveries presented, which are considered ideas in the public domain and are free for all to use.
Facts:
- Author Jay Robert Nash published several books, including 'The Dillinger Dossier,' promoting a theory that notorious bank robber John Dillinger was not killed by the FBI at the Biograph Theater in 1934.
- Nash's theory claimed that Dillinger, having been warned of a trap, sent a look-alike named Jimmy Lawrence in his place.
- To support this theory, Nash's books cited specific physical discrepancies between Dillinger and the corpse, such as differences in eye color, teeth, scars, and eyebrows.
- Nash's work also asserted that the FBI covered up the mistake by planting Dillinger's fingerprints and that the real Dillinger lived out his life on the west coast.
- CBS broadcast an episode of its television series 'Simon and Simon' titled 'The Dillinger Print.'
- The television episode's plot was centered on the premise that Dillinger might still be alive and incorporated factual claims from Nash's books, such as the physical discrepancies.
- The 'Simon and Simon' episode featured its own original characters, dialogue, and plot, and did not use any of the verbatim text or narrative structure from Nash's books.
Procedural Posture:
- Jay Robert Nash filed a copyright infringement lawsuit against CBS in the U.S. District Court for the Northern District of Illinois (a federal trial court).
- The district court first ruled that the copyrightable material in Nash's books was limited to his presentation and did not include the historical facts or theories.
- CBS then filed a motion for summary judgment, conceding for the sake of the motion that it had accessed Nash's books and copied factual material.
- The district court granted summary judgment for CBS, holding that its television episode did not appropriate any of Nash's legally protected expression.
- Nash, the plaintiff, appealed the district court's judgment to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a television show infringe on the copyright of nonfiction books when it uses the books' historical theory and factual claims but does not copy the author's specific language, arrangement, or presentation?
Opinions:
Majority - Easterbrook, Circuit Judge.
No. A television show that uses the historical theory and facts from a nonfiction book does not infringe on the author's copyright so long as it does not copy the author's protected expression. Copyright law, under 17 U.S.C. § 102(b), explicitly separates unprotectable ideas from protectable expression. Historical facts, and even an author's speculative theory about those facts, are treated as 'ideas' or 'discoveries' that belong to the public domain. While Nash's copyright protects his specific words, arrangement of evidence, and narrative style, it does not grant him a monopoly over the historical theory that Dillinger survived. CBS was free to use Nash's theory and the underlying factual assertions as building blocks for its own original, expressive work. The court likened this case to Hoehling v. Universal City Studios, Inc., where using a book's theory about the Hindenburg disaster to create a movie was not an infringement because facts and historical interpretations are not copyrightable.
Analysis:
This decision strongly reaffirms the idea/expression dichotomy, a cornerstone of copyright law, particularly as it applies to historical works. It establishes that even a highly developed, speculative historical theory is treated as an unprotectable 'idea' rather than a protectable 'expression.' This provides significant latitude to authors, filmmakers, and other creators to build upon the factual research and historical interpretations of their predecessors without fear of infringement, as long as they create their own original expression. The ruling prioritizes the public's interest in the free flow of information and historical debate over an individual author's interest in controlling their research and theories.
