On May 27, 2021, the Federal Court of Canada (Court) issued its decision in Winkler v. Hendley, 2021 FC 498, summarily dismissing an action for copyright infringement and reaffirming the long standing principle that there is no copyright in facts. This principle applies in cases where the author’s work is plausibly represented as nonfictional and historically factual, even if it may subsequently be shown as untrue.

This action involves two works by Thomas P. Kelley: the 1954 book ‘The Black Donnellys’ about the infamous Donnelly family of Lucan, Ontario and the 1962 sequel the ‘Vengeance of the Black Donnellys’ (collectively, Kelley’s Works). The plaintiffs, who are the owners of the copyright in Kelley’s Works, alleged that the 2004 book by Nate Hendley ‘The Black Donnellys: The Outrageous Tale of Canada’s Deadliest Feud’ infringed the copyright in Kelley’s Works under the Copyright Act

The plaintiffs asserted that despite the classification of ‘The Black Donnellys’ as nonfiction “true crime” story and Kelley’s own statements that the book presented historically accurate version of events, much of the book was either mistaken or fictional and therefore Hendley’s use of the fictional events constituted copyright infringement. The defendants, Hendley and his publisher, admitted that Hendley used Kelley’s Works and other sources in research for his book, but that Kelley’s account of the events surrounding the Donnellys was factual and historical nonfiction, such that copyright cannot be claimed in them.

The Court, in rejecting the plaintiff’s position, found that an “author who publishes what is said to be a nonfiction historical account cannot later claim the account is actually fictional to avoid the principle that there is no copyright in facts”. The Court, after engaging in a holistic assessment of the works, their originality and the asserted similarities, held that Hendley did not copy a substantial part of Kelley’s Works.

Summary By: Anna Troshchynsky


21 06 09

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