Two Truths And A Lie ' How Blurring The Lines Between Fact And Fiction Can Undermine Copyright Protection

• Published date: 17 June 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Smart & Biggar
• Author: Mr Daniel Anthony and Mimoza Gjelaj (Summer Law Student)

"In the early morning of August 24, 1875, eight members of the notorious Donnelly family of Lucan, Ontario, armed with nothing more than clubs, won a pitched street battle against eighteen townspeople intent on revenge. Or did they?"¹ These are the opening words of a recent Federal Court case, Winkler v Hendley, which involved the question of whether copyright should subsist in fictional elements of a work that was marketed, published and perceived to be historically factual.

In his 1954 book, The Black Donnellys, Thomas P. Kelley recounted the history of the notorious Donnelly family; from their migration to Lucan, Ontario from Tipperary, Ireland, to their long-running trouble with the law and their neighbours, and ultimately, to their unsolved murders. Over the years, the Donnelly family tale has been heralded as one of Canada's most infamous "true crime" stories. The Black Donnellys, in particular, presents itself as "The True Story of Canada's Most Barbaric Feud." In libraries across Canada, The Black Donnellys has been published, presented, and accepted as non-fiction for the last 67 years. The dramatic account of the Donnelly family feud has been trusted and relied upon by readers, researchers, and storytellers, alike.

Mr. Hendley, the defendant author, relied on the factual tellings in The Black Donnellys as a primary source for his original literary work, The Outrageous Tale. In doing so, he recounted many of the historical "facts" published in The Black Donnellys, which the plaintiffs, Mr. Kelley's descendants, alleged infringed the copyright. To overcome the principle that there is no copyright in facts the plaintiffs asserted that several of the historical accounts presented as true in The Black Donnellys were, instead, elaborations of the truth, or in some cases the pure product of Mr. Kelley's imagination.

The central question for the Court on the summary judgment motion was...