Connecticut Court Sinks Claim That History Of American Submarine Infringes Copyright
A recent decision from Judge Jeffrey Alker Meyer in the District of Connecticut may make waves in the world of nonfiction copyright. The decision throws out a copyright case that, among other things, emphasized two similarities between the copyrighted work and the accused work: both engaged in the use of “flash-back” and “flash-forward” storytelling techniques, and both discussed a unique historical theory developed by Mr. Leary. To Judge Mayer, neither argument held water.
The case grew out of Mr. Leary’s and Mr. Frese’s shared fascination with the story of the “Turtle,” a Revolutionary War-era, one-man wooden submarine built by a Connecticut farmer known as David Bushnell. According to Judge Meyer, the Turtle never succeeded in destroying a British warship, but was still a significant success: it was the first submarine used in a war, it had a breakthrough propeller design that is still used today, and it marked the first time anyone discovered how to make gunpowder ignite underwater. Mr. Leary, who had long been fascinated by the story of the Turtle, built a working replica of the submarine with Mr. Frese. While they built the replica, Mr. Leary also began work on a manuscript – which he shared with Mr. Frese – that combined biographical information on Bushnell, historical information regarding the Turtle, and an account of Mr. Leary’s efforts to build the replica Turtle.
Later, Mr. Frese, in partnership with the National Maritime Historical Society, built a second replica Turtle. Mr. Frese then wrote and published his own book about the Turtle, focusing on the technical challenges he had overcome in building his replica Turtle. Believing he saw similarities between Mr. Frese’s work and his own, Mr. Leary sued, claiming that the book violated his copyright in his manuscript.
On summary judgment, Judge Meyer found that no reasonable jury could view the works as substantially similar, as required to find copyright infringement. Nonfiction works, Judge Meyer noted, are entitled to a much narrower range of copyright protection than more traditional works of fiction. Copyright holders of nonfiction works are only entitled to protection of the author’s original expression – the author’s particular manner of selecting, coordinating, excerpting, modifying, and arranging various components. The use of “flash-back” and “flash-forward” transitions were not a protectable expression: Judge Meyer viewed these to be “nothing more than a standard storytelling device.” And Mr. Leary’s claim to copyright protection in his original historical theory – that Isaac Doolittle, a New Haven clockmaker who built America’s first printing press, may have helped make the Turtle’s hatch – was also not protectable under the Copyright Act.
This case is a significant guidepost for any creators of nonfiction content. Judge Mayer’s opinion makes clear that copyright law for nonfiction works will only provide authors with a narrow range of protection. Neither original historical theories nor use of typical storytelling techniques will keep a claim afloat.
The case is Joseph Leary v. Roy Manstan, Frederic Frese, Westholme Publishing, LLC; Civ. No. 3:13-cv-00639 (JAM), in the District of Connecticut. A copy of the order can be found here.