Can You Copyright the Past?

Authors and screenwriters working in historical fiction have the opportunity to transform real events into powerful creative works. While historical facts themselves cannot be copyrighted, the way those facts are creatively expressed—through plot, character development, and narrative choices—can be. This article delves into the complexities of copyright law through a landmark case study: a lawsuit involving Steven Spielberg's historical drama Amistad and Barbara Chase-Riboud's novel Echo of Lions. By examining this case, writers can better understand how courts distinguish between protected creative elements and unprotected historical facts, empowering them to draw inspiration from the historical record while respecting legal boundaries when adapting true stories for page or screen.

Historical Fiction and Copyright: Who Owns the Past?

The headline in The Washington Post read: "Judge Refuses to Block Release of Spielberg's Amistad. Plagiarism Suit Against Filmmaker to Proceed." Echoing Dorothy Parker's bon mot that "The only ism Hollywood believes in is plagiarism," bestselling African American novelist, poet, and sculptor Barbara Chase-Riboud claimed that Spielberg's film Amistad infringed the copyright to her novel about a real-life mutiny aboard a slave ship off the coast of Cuba in 1839. Specifically, Chase-Riboud alleged that the DreamWorks' script impermissibly copied "themes, dialogue, characters, relationships, plots, scenes and fictional inventions" from her 1989 historical novel, Echo of Lions.

Although Spielberg's production company had flown Chase-Riboud to Los Angeles in 1988 to discuss optioning rights to her novel, and there existed ample evidence of overlap between ideas and characters in the novel and the film, the court recognized that historical facts and basic character types are not protectable. Since the only common elements between the book and movie related to historical facts and broadly drawn characters, the court determined it was unlikely Ms. Chase-Riboud's claim would succeed at trial. Consequently, her motion for summary judgment -- which would have assured a quick resolution of her claim -- was denied.

Because copyright does not protect ideas and facts or material traceable to timeless themes, copying alone is not enough to prove copyright infringement. To prove copyright infringement, a copyright owner must prove that the infringer copied protected material. When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas and historical facts) and compare the copyrightable elements in the works. Unfortunately, as this case illustrates, there is no simple test to distinguish unprotected ideas from protected expression.

"Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement."

Understanding Substantial Similarity in Copyright Law

Under copyright law, only an author's particular expression of an idea, not the idea itself, is protectable. Prior copyright infringement lawsuits against writers have held that basic plots, stock settings, and stereotypical characters (e.g., prostitutes with hearts of gold, sympathetic mob bosses, corrupt cops, Nazi zombies) are not protected by copyright. These literary devices -- which are part of every novelist's and screenwriter's toolkit -- belong to a common pool of literary techniques analogous to unprotected ideas.

In a copyright infringement case, the plaintiff must prove that the defendant actually copied its work and that the copying was "substantial" enough to constitute an unlawful taking of the plaintiff's work. Unlawful copying exists when there is not only substantial similarity between two works but also substantial similarity between protectable elements.

In the Amistad case, since DreamWorks did not dispute having access to Chase-Riboud's book, the only issue for the court to decide was whether substantial similarity of expression between the two works existed.

While copyright is important, a work may be protected under other legal theories. For example, under the law of idea misappropriation—which varies from state to state—if you submit a story idea to someone and the idea is used, provided there was a prior understanding you would be paid for your idea, an enforceable contract may exist. 

Walking the Line Between Inspiration and Infringement

In finding DreamWorks did not violate Chase-Riboud's copyright, the court looked at the "total concept and feel" of the two works -- the standard test for assessing the substantial similarity of expressive elements between a film and a book. The "total concept and feel" analysis looks at similarities of plot, mood, text, setting, sequence of events, and characterizations from the vantage point of the average lay observer.

Because the plot, setting, and general sequence of events of the two works were -- in the court's opinion -- dictated by the historical record, the court determined that the plaintiff could not sustain her burden of proof on these factors alone. As a general rule, historical works, including historical novels that track real events closely, receive less protection than fictional works or works loosely based on real events. Moreover, the court noted that the mood and pace of Echo of Lions, which contains a poignant love story, was much different from Amistad, whose mood and flow were dictated solely by historical events.

Since Chase-Riboud also relied on certain specific examples of substantial similarity to support her claim, those examples, too, were analyzed by the court. But none of those basic resemblance, or common themes, were enough. Interestingly, neither the court nor Chase-Riboud cited specific instances of dialogue appropriation.

Looking at certain specific claims, Chase-Riboud claimed that a fictional Black abolitionist named Henry Braithwaite overlapped with Amistad's Theodore Joadson. While both fictional characters are depicted as wealthy, erudite  Black abolitionists residing in New Haven, according to the court, they share little else in common. For example, Amistad's Joadson was a runaway slave, whereas Braithwaite came from a land-owning family that arrived in America in the mid-1600s. Unlike Chase-Riboud's character, Joadson had a critical role in the African's defense, including interviewing attorneys and urging John Quincy Adams to represent them at trial.

While noting that well-developed characters—especially visually depicted ones—are eligible for copyright protection, the court held that since the idea of a Black abolitionist appearing in both works was predictable and only superficial similarities existed between Braithwaite and Joadson, no reasonable juror would find the characters substantially similar from a copyright point of view.

Similarly, Chase-Riboud claimed that DreamWorks stole certain ideas and plot devices -- not supported by the historical record -- relating to a historical character named Cinque, who was featured in both works. However, the court held that Chase-Riboud's portrait of the slave Cinque, which included a relationship with John Quincy Adams, was not the stuff that infringements are made of. While "both" Cinque's shared certain similarities, the court held that Chase-Riboud's character was not sufficiently distinctive to enjoy copyright protection. Moreover, since both works "expressed" Cinque differently, the court held that there was no substantial similarity. Moving beyond the characterizations, the court found that other specific claims of similarity, including common endings tied to the Civil War and the destruction of a slave colony with the rendering of the Supreme Court decision freeing the slaves, were sufficiently different to defeat Chase-Riboud's claims.

Case Settled

Hinting at a financial settlement, The Los Angeles Times reported on February 10, 1998, that Chase-Riboud had released the following statement: “After my lawyers had a chance to review DreamWorks’ files and other documents and evidence, my lawyers and I concluded that neither Steven Spielberg nor DreamWorks did anything improper, and I instructed my lawyers to conclude this matter in a timely and amicable fashion. I think Amistad is a splendid piece of work, and I applaud Mr. Spielberg for having the courage to make it.”

The Takeaway

Not all similarities amount to copyright infringement. Regarding copyright protection for historical works, an author's exclusive rights are confined to how their ideas and facts are selected, organized, and presented. In determining similar cases, courts will continue to evaluate plots, moods, scenes, sequences, events, and characterizations to determine whether the defendant has captured the "total look and feel" of the plaintiff's work. As seen in the Amistad case, courts will also review differences, as well as similarities, between the two works when making infringement decisions.

If you are a writer and have questions about copyright infringement, fair use, how to protect a book title or defamation law, contact me for a consultation. 

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DISCLAIMER: This article is protected by copyright and may only be reproduced in its entirety for personal or educational purposes. Any editing, alteration, or modification is strictly prohibited without the author's permission. The content of this article addresses general legal issues and is not intended to provide specific legal advice for any individual situation. It is recommended to seek professional legal counsel before relying on any information contained herein.

Lloyd J. Jassin is a book publishing attorney and a former publishing executive. He co-authored The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons). Throughout his career, he has been a vocal advocate for creators' rights, offering extensive writings and insights on contract negotiation, copyright, trademark, and defamation law. He is a sought-after speaker, regularly lecturing on legal matters that impact content creators and media professionals. His legal practice is committed to helping clients navigate the ever-evolving landscape of publishing and entertainment law, ensuring their intellectual property is protected and their creative visions are realized.

Contact: email: jassin@copylaw.com |  phone: (212) 354-4442 | address: Law Offices of Lloyd J. Jassin, 104 West 40th Street, FL 5, New York, NY 10018 & Madison, New Jersey.

(c) 1999 - 2025. Lloyd J. Jassin.  An earlier version of this article was first published in Creative Screenwriting Magazine.

AI, Copyright Law, and Publisher Trust: Balancing Incentives and Authenticity

In an article I wrote for Publishers Weekly late last year, I wrote that Generative Artificial Intelligence ("GAI") challenges accepted notions of creativity and authorship. 

I also wrote that to understand copyright law, you had to understand the policy behind copyright law. The premise is that without copyright, authors would have no incentive to create new works.  

However, algorithms and artificial intelligence don't require incentives in the same way humans do. Unlike book publishers, who generate royalties for human authors, internet platforms prioritize data-driven and machine-learning engagement for advertising revenue. In doing so, they harness user interactions and behavior to sustain their financial models. As a result, these AI systems can generate vast amounts of content, from good enough to outright toxic, blending fact and fiction without any regard for copyright protections or permissions. This glut of AI-generated media poses complex questions about information quality and attribution as well as the boundaries of creativity and originality.

As the volume of AI-generated media increases, the provenance of information will become more important, creating market incentives and consumer demand for publishers and creators who can demonstrate authenticity and high quality.

While addressing the complexities of regulating AI-generated content remains an open question, the established community of publishers has an important advantage in addressing the comfort level of consumers as provenance plays a central role in fostering trust and reliability in information. Publishers (with a capital “P”), through selectivity in what they acquire, careful editing, collaboration amongst sales and marketing, publicity, and the payment of royalties, offer a baseline of trust in the data they publish. 

Amidst growing uncertainty in consumer trust towards AI, the presence of author brands, publisher imprints, and robust metadata becomes pivotal. These elements act as guiding beacons for consumers, helping them navigate the overwhelming volume of data and identify high-quality works amidst the vast sea of information.

Without trademarks, John Oathout, author of Trademarks, wrote, "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking."

Alfred A. Knopf

Alfred A. Knopf (the man, not the imprint) was keenly aware of that proposition when he wrote The Borzoi Credo, a publishing manifesto that appeared in the November 1957 issue of The Atlantic Monthly.  

It read, in part, "I believe that a publisher's imprint means something and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less." 

Unlike copyright law, trademark law can be used to stop the unauthorized use of a bestselling author's name, a series title, symbols, and markings that the public associates with a particular publisher or other source. In this respect, trademark law is an effective cudgel against those who pass off their wares as endorsed by or coming from an established creator, publisher, or producer.  

Trademark registration of an author’s name, a series title, or a publisher's imprint also opens doors to Amazon’s Brand Registry, empowering authors and publishers with takedown tools. The Brand Registry is a quick and cost-effective alternative to litigating unfair competition and right of publicity claims. The hitch, it the name or mark must be registered, which requires showing consumers perceive the name to be a badge for literary services.

While the publishing industry understandably has antagonism towards large language models, the industry will no doubt take an active part in shaping the future of AI, whether through legislation, licensing their books to train AI, creating bespoke AI models with their own curated datasets, and trumpeting the Good Housekeeping Seal of Approval value of their author and publisher brands.  

To return to the premise of this post, that GAI is undermining the incentives given to authors by copyright law while fulfilling the purpose of copyright, that tension will work itself out over time, but we need human editors and publishers for transparency, accountability, and quality control purposes. 

My Article in Publishers Weekly - "Generative AI vs Copyright"

Pleased to have Publishers Weekly publish my article on the impact Generative AI will have on the publishing industry. 

When it comes to text, Generative AI (GAI) is an artful plagiarist. It knows how to dance around copyright. The predictive model emulates, it doesn’t copy. The upshot is copyright, which is basically a nuanced law of reprinting bans, is ill-equipped to deal with GAI. The question is can it be modified to address the threat to human authors.  

Click here to read my article.  

                                                                       

 

 

 

 

How Authors Can Fight Fake AI-Generated Books on Amazon

In the rapidly evolving publishing landscape, authors and publishers face a growing challenge: the proliferation of counterfeit AI-generated books on platforms like Amazon. This guide aims to help you understand your intellectual property rights and utilize available tools to protect your brand.

The Importance of Brand Protection

Your author brand represents years of hard work and the quality of your literary output. Amid a deluge of inaccurately labeled and untrustworthy AI-generated content, safeguarding your trademark or brand--whether it's a series name or a pseudonym--has become essential to maintaining a successful career.

Copyright vs. Trademark: Using the Right Tool

Understanding the difference between copyright and brand protection is key.

• Trademarks protect brand recognition and reputation. They prevent others from copying source identifiers, such as words, slogans, illustrated characters, series titles, fonts, and logos, that allow consumers to distinguish the source of one product or business from another.
• Copyright law protects original works of authorship, including literary, dramatic, musical, artistic, and sculptural works.
  
  

Legal Protections for Authors and Publishers 

Trademark law serves two primary purposes: (a) protecting consumers from being misled about the source or sponsorship of products and services and (b) safeguarding the investments authors and publishers make in building their brands.

The key benefits of a federally registered trademark are the right to sue in federal court and access to Amazon's Brand Registry. Registering a series title, pseudonym, or well-known author's name with the U.S. Patent and Trademark Office (USPTO) allows you access to Amazon's Brand Registry—a cost-effective alternative to litigation that enables a trademark registrant to remove unauthorized content from the Amazon platform.

If you have a federally registered trademark, you can list it with Amazon's Brand Registry. This gives you access to tools that allow you to monitor Amazon for any listings that infringe on your trademark rights, such as unauthorized use of series titles or products falsely claiming affiliation with your brand. If you detect an infringement, you can submit a takedown request directly through the Brand Registry. Amazon will then investigate and, if a violation is confirmed, remove the offending listings.

If your issue with Amazon involves someone using your individualized expression without permission, that's a copyright violation. In such cases, use Amazon's "report the infringement" takedown tool.   

Unfair Competition Law

Unfair competition law, governed by state and federal laws, protects businesses and consumers from deceptive or unethical commercial practices.  Broader in scope than trademark law, it applies to a wide range of business activities, not just the deceptive use of marks.  It can be used to combat various forms of misrepresentation, including false claims about the origin or endorsement of creative works, as well as other forms of deceptive business practices. 

Even without a registered trademark, authors and other creators can invoke trademark and unfair competition laws to pursue bad actors who deceive consumers into falsely believing their products (including books, blogs, podcasts, and businesses) or services have been approved or endorsed by the brand owners.  

Real-World Example: Jane Friedman's Case

Recently, publishing strategist Jane Friedman discovered multiple books published on Amazon under her own name that she did not write, constituting a clear case of free-riding on her reputation or false designation of origin under both state and federal law.

Jane's unregistered brand is associated in the public's mind with her in-depth knowledge of writing, book marketing, and navigating the changing landscape of the publishing industry. Fortunately, Jane could use her influence, rather than litigation, to get Amazon to take the books down.  However, not all authors have this option available to them.

Key Takeaways for Authors and Publishers

1. Regularly monitor for counterfeit books using your name or brand
2. Consider trademark registration for strong brand protection
3. Utilize Amazon's Brand Registry if eligible
4. Use the appropriate tool (copyright or trademark) when reporting infringement
5. Stay vigilant in protecting both your copyrights and your brand

By understanding and utilizing these tools and strategies, authors and publishers can better protect their work and reputation in the evolving digital publishing landscape.

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DISCLAIMER: The content of this article is intended to address general legal issues and does not constitute specific legal advice for any individual situation. It is strongly recommended to seek competant legal counsel before relying on any information contained herein.

Lloyd J. Jassin is a publishing attorney and former publishing executive. Throughout his career, he has been a vocal advocate for creators' rights, offering extensive writings and insights on contract negotiation, copyright, trademark, and defamation law. He is co-author of The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley). Before becoming an attorney, he was Director of Publicity for a division of Simon & Schuster. His legal practice is committed to helping clients navigate the ever-evolving landscape of publishing, ensuring that their intellectual property is protected and their creative visions are realized.

Contact: Jassin@copylaw.com or (212) 354-4442. His offices are located at 1501 Broadway, FL 12, New York, NY 10036, and in Madison, NJ. For more information, visit www.copylaw.org.

(c) 2024. Lloyd J. Jassin.

BookTok Star Signs Global Deal With Simon & Schuster

New York, June 20, 2023 -- Attorney/Agent Lloyd Jassin was featured in the Bookseller article, "S&S Children's pre-empts 'unmissable' YA romantasy from BookTok star Roberts." View the full article.

Mr. Jassin represented self-published author Lauren Roberts in a fast-moving three-book global co-publishing deal for Roberts’ POWERLESS, a young adult fantasy that "follows the forbidden romance between a powerful prince and an ordinary girl as they try to survive their kingdom’s grueling laws pitting them against each other."

The global pre-empt by Simon & Schuster was led by UK editor Amina Youssef, Simon & Schuster Children's Books. 

S&S will publish the first book in the UK on July 6, 2023, and in the US on November 7, 2023, with book two (RECKLESS) following in 2024 and book three (FEARLESS) in 2025.

In a series of heated auctions, foreign rights have already been sold to publishing partners in France (Editions Gallimard), Germany (Blanvalet), Spain (Salamandra), Italy (Newton Compton), Poland (Foksal), and Turkey (Beta).

Background

Based in New York City, Lloyd J. Jassin, a former publishing executive, provides business-oriented legal counsel to clients in the publishing and entertainment fields.  

Contact: (212) 354-4442