Is Fake News Protected by Copyright?

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“Fake news” is a term that’s used a little loosely these days. So, to be specific, this post addresses false information that is presented as fact.

A 1990 case out of the Seventh Circuit, Nash v. CBS, Inc., addressed the question head-on. In that case, Jay Robert Nash wrote two books about John Dillinger, alleging despite evidence and general consensus to the contrary that Dillinger had not been killed by the FBI as everyone believed. Instead, he claimed that Dillinger was actually alive and that he had escaped the FBI’s sting operation by sending a look-alike in his place. After CBS aired a show based on these assertions about Dillinger, Nash sued for copyright infringement.

The court highlighted the fact that works of fiction are protected by copyright “[t]he inventor of Sherlock Holmes controls that character’s fate while the copyright lasts.” However, as the court noted, “Nash does not portray [his books] as fiction- which makes all the difference.” Because the authors of fake news portray their fictitious narratives as fact, the law views and treats fake news stories not as fiction, but as the accounts of fact which they claim to be.

When it comes to assertions of fact, whether it’s a true account or fake news disguised as fact, there’s an underlying assumption and understanding that neither the narrative nor the characters are the original creations of the author, but instead, facts about the world. And as the court in Nash explained, the first person to report a given fact “does not get dibs on history.” The author of a fake news story has rights that “lie in his expression: in his words, in his arrangement of facts – but not in the naked truth’.” In Arica Institute Inc. v. Palmer, a 1992 case from the Second Circuit, the court explains that by holding a story out as factual, the author is estopped from exercising exclusive rights over those assertions. So, fake news is protected from wholesale and verbatim copying, but an author of fake news has no claim over the underlying story, despite the story being made up.

This presents an interesting hurdle in a recent lawsuit filed by a journalist against the creators of All Eyez on Me, a biopic about the life of rapper Tupac Shakur. In the suit, Kevin Powell alleges that the film infringes “several articles and cover stories” that he wrote for Vibe magazine “based on the life and struggles of Tupac Shakur.” The complaint further alleges that “[w]hile some of the content in these articles was factual, some portions of the article were changed or embellished by Plaintiff,” including a character by the name of Nigel, which “was the embellishment of a real life character that was central to the narrative in Plaintiff’s articles.” The film also features this fictitious character along with other fictional characters and “re-worked narratives.” Although Powell has no claim to the facts recited in his articles, he may be able to prevail if he can show that the arrangement or sequencing of the facts was sufficiently original and that the film copied those original elements.

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