‘Star Trek,’ ‘Narcos,’ ‘Jersey Boys’ Lawsuits Show Facts Belong To Everyone

Recent lawsuits against “Star Trek: Discovery,” “Narcos” and “Jersey Boys” highlight an intellectual property reality that the public often overlooks – you cannot copyright a fact.

These court rulings show that when copyright cases rely solely on factual similarities, they are destined for failure.

The issue cuts to the heart of copyright law, which focuses on protecting original works of authorship (keyword: original) that contain at least a minimal level of creativity. Facts simply are not copyrightable, though protections can extend to the arrangement and presentation of facts for journalism and other nonfiction works.

For a copyright lawsuit to be successful, it should focus on proving that a work’s original content was stolen. Basing a case on overlapping historical and scientific facts contained in two separate works will not hold up in court.

Indestructible Tardigrades

A recent lawsuit against the web series “Star Trek: Discovery” hinged on scientific knowledge about tardigrades, the microscopic eight-legged animals colloquially known as “water bears” or “moss piglets” that can survive in almost any conditions, including outer space.

When the developer of a video game called “Tardigrades,” which featured a giant version of a space-traveling water bear, saw overlap between his unreleased game and a three-episode story arc about a similar character in “Star Trek: Discovery” in 2017, he sued for copyright infringement.

He claimed the show ripped off his unreleased game and appealed the case after it was dismissed in district court. Last month, an appellate court upheld the ruling, finding the lawsuit was based on known scientific facts about tardigrades – their indestructibility is likely their most popular feature and the focus of countless news articles and scientific papers.

The game’s “space-traveling tardigrade is an unprotectable idea because it is a generalized expression of a scientific fact – namely, the known ability of a tardigrade to survive in space,” the appeals court wrote. “By permitting [the game’s developer] to exclusively own the idea of a space-traveling tardigrade, this Court would improperly withdraw that idea from the public domain and stifle creativity naturally flowing from the scientific fact that tardigrades can survive the vacuum of space.”

$240,000 in Attorneys’ Fees

Similarly, Colombian journalist Virginia Vallejo’s copyright lawsuit against “Narcos” backfired after claiming the Netflix show ripped off her 2007 memoir “Loving Pablo, Hating Escobar” about her relationship with the drug kingpin.

But the case fell short. The lawsuit claimed the show copied three scenes from her memoir, but the court found those claims baseless because the show copied only factual information, such as meetings that took place, and Vallejo lost before ever going to trial.

To make matters worse, in August, a magistrate judge recommended awarding Netflix more than $240,000 in attorneys’ fees to be paid by Vallejo. The judge found that the journalist’s lawsuit was objectively unreasonable because the court had previously dismissed the case and made clear in its ruling that facts were not protected by copyright.

The judge noted that Vallejo should have realized the unreasonableness of her claims based on the case’s earlier dismissal, but instead she chose to refile an almost identical claim involving “primarily factual information.”

Four Seasons Facts

Perhaps even more devastating, though, is the failed copyright lawsuit against “Jersey Boys,” where an appellate court last week effectively ended a 13-year-long lawsuit against the Broadway musical.

The lawsuit claimed the show copied a ghostwritten, unpublished autobiography of The Four Seasons’ founding member Tommy DeVito. The late ghostwriter’s wife brought the case, which argued the musical ripped off several scenes from the book – including a fake murder in Frankie Valli’s car and details about the band’s induction into the Rock and Roll Hall of Fame.

But there was a big problem with the lawsuit – the book billed itself as a nonfiction, historical account of the musical group, so any factual information copied in the musical would not be copyright protected. However, to get around that, the lawsuit tried to rewrite history to claim that some parts of the book were made up and thus deserved full copyright protection.

The appellate court was not buying it. The court ruled that a book cannot claim initially to be an accurate, historical account and then later argue parts were embellished or made up to file a copyright lawsuit.

“It would hinder, not ‘promote the progress of science and useful arts’ to allow a copyright owner to spring an infringement suit on subsequent authors who ‘built freely’ on a work held out as factual, contending after the completion of the copyrighted work, and against the work's own averments, that the purported truths were actually fictions,” the appellate court wrote. “Copyright protects the creative labor of authors; it does not protect authors’ post-completion representations about the lack of veracity of their own avowedly truthful work.”

Common Sense

Generally, copyright cases settle long before going this far in the litigation process. TV shows and musicals, often owned by big corporations, prefer to handle these cases quickly and quietly rather than spending years fighting in court and going through a long appeals process. These recent rulings represent exceptions, rather than the norm.

But these rulings demonstrate that large companies will fight if a lawsuit has a weak foundation built on copyright claims that more closely resemble facts than original creative content.

Unfortunately, there is no perfect hard-and-fast rule for when a copyrighted work has been infringed. Prior case law is pretty threadbare in the fact-versus-originality debate, so proceeding with a case that is not clear cut brings uncertainty. Oftentimes, determining whether a work’s original components have been ripped off or just the (uncopyrightable) facts were reused boils down to basic common sense. 

To ensure creativity is not stifled, it is critical that we use litigation to address instances when authors’ works were definitively stolen, while avoiding bogging down the courts with unnecessary suits grasping at factual minutia.