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This Is Boilerplate

Mike’s take on the flap between comedian-turned-novelist Chris Elliott and graphic novelist Paul Guinan confuses me a bit, and interests me a lot.

I agree that a novelist does not need to get an inventor’s permission to write about a publicly known machine. But is that what happened here? As I read the Times story, Elliott (or his aide) failed to see what I think is reasonably clear from the website about Boilerplate … namely, that it is fantasy creation, not a factual account of historical events. (It seems I disagree with Mike on this, so we would want to factor into the analysis that one risk of making a spoof is that some people take it to be true.)

Taken to an extreme, Mike’s analysis suggests tough sledding for a copyright claim in Woody Allen’s Zelig, and Christopher Guest’s This Is Spinal Tap, Waiting for Guffman, and Best in Show. And thereby hangs a tale …

First, I don’t think we want to reduce authors’ incentives to write spoofs (or produce brilliantly funny mockumentaries), relative to other types of expressive works, by subjecting the former to a unique form of forfeiture. (The forfeiture argument might run something like, “If it isn’t unmistakably clear from the face of the work itself that the work is fanciful rather than historical, the author can’t assert a copyright claim against another who mistakes the work for history and creates another expressive work incorporating expression from the first work.”) After all, spoofs and mockumentaries are precisely the sorts of fanciful works that the copyright incentive most strongly aims to create. (Helping to explain, for example, the favorable fair use treatment given to parody works in the Supreme Court’s Acuff-Rose case.) It strikes me as imprudent to force spoof-creators to make their works less powerful (and less funny) by demanding a disclaimer on the face of the work (e.g., “THIS IS JUST A SPOOF!”), on pain of obtaining a less clearly enforceable (and thus less valuable) form of copyright protection.

Second, I don’t think the Second Circuit’s decision in the Hoehling case is to the contrary. Indeed, it doesn’t even strike me as particularly relevant. In that case, plaintiff Hoehling had written an historical account of the Hindenburg disaster. He was trying to write an accurate history, not a spoof. He ended the book with a chapter in which he presented his own theory about what caused the Hindenburg’s fiery destruction. His theory, based on factual support he adduced in the book, was that a saboteur on board, Eric Spehl (who died in the disaster), had destroyed the zeppelin in an effort to show up the Nazi regime as weak. Hoehling sued Universal City Studios when it made a movie about the Hindenburg disaster that included a saboteur-on-board story line closely tracking Hoehling’s fact-based historical theory. The Second Circuit denied Hoehling’s claim to a copyright interest in the historical facts and the saboteur theory they supported, apart from Hoehling’s specific creative expression in his own book (which, the court concluded, had not been copied). According to the court in Hoehling, “To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots.”

Fast forward to Paul Guinan’s fanciful creation, the Boilerplate site. His site does, it’s true, trade on the visual and verbal tropes of somewhat sensationalized pop history. And that’s part of what makes it enjoyable. It also may fool some viewers. But once a viewer (like Chris Elliott) accepts that he made a mistake, and that Guinan’s work is fanciful, why shouldn’t he license the use of Guinan’s creative expression in his own, different work? Put another way, why should a lawyer tell Elliott not to license it?