Before RONEY, HILL and KRAVITCH, Circuit Judges.
Judge Roney delivered the opinion of the court.
[*1367] A sensational kidnapping, committed over a decade ago, furnishes the factual backdrop for this copyright infringement suit. The issue is whether a made-for-television movie dramatizing the crime infringes upon a copyrighted book depicting the unsuccessful ransom attempt. After careful and lengthy study and consideration, we conclude that the verdict for plaintiff must be reversed and the cause remanded for a new trial because at the request of plaintiff and over defendants' objection, the case was presented and argued to the jury on a false premise: that the labor of research by an author is protected by copyright.
The decision to reverse is made more difficult because the record and the arguments to this Court reveal sufficient evidence to support a finding of infringement and a verdict for plaintiff under correct theories of copyright law. Plaintiff's presentation and argument to the jury, however, make it improper to conclude that the short erroneous instruction, imbedded in a field of proper instructions, was harmless error.
The facts are fully developed in the district court's opinion, Miller v. Universal City Studios, Inc., 460 F. Supp. 984 (S.D.Fla.1978). A synopsis will suffice for purposes of this appeal.
In December 1968 the college-aged daughter of a wealthy Florida land developer was abducted from an Atlanta motel room and buried alive in a plywood and fiberglass capsule. A crude life-support system kept her alive for the five days she was underground before her rescue. Gene Miller, a reporter for the Miami Herald, covered the story and subsequently collaborated with the victim to write a book about the crime. Published in 1971 under the title 83 Hours Till Dawn, the book was copyrighted along with a condensed version in Reader's Digest and a serialization in the Ladies Home Journal. The co-author has assigned her interest in this litigation to Miller.
In January 1972 a Universal City Studios (Universal) producer read the condensed version of the book and thought the story would make a good television movie. He gave a copy of the book to a scriptwriter, who immediately began work on a screenplay. Although negotiations for purchase of the movie rights to 83 Hours Till Dawn were undertaken by Universal, no agreement with Miller was ever reached. The scriptwriter was eventually advised that use of the book in completing the script was "verboten." The movie was completed, however, and aired as an ABC Movie of the Week, The Longest Night.
The evidence at trial was conflicting on whether the scriptwriter relied almost entirely on the book in writing the screenplay or whether he arrived at his version of the kidnapping story independently. Both plaintiff and his expert witness testified to numerous similarities between the works. The jury, which had copies of the book and viewed the movie twice during the trial, found the movie infringed Miller's copyright and awarded him over $ 200,000 in damages and profits.
The most substantial question presented on appeal is whether the district court erred [*1368] in instructing the jury that "research is copyrightable." Because the Court finds reversible error in this regard, other issues raised on this appeal will be discussed only as necessary to avoid further confusion on retrial.
The district court instructed the jury that if an author engages in research on factual matters, "his research is copyrightable." This instruction, at best confusing, at worst wrong, was given with some reluctance by the trial court over the strenuous objection of defendants on the urging by plaintiff, "That's the heart of the case."
As it develops on appeal, plaintiff may have won without the instruction, but later explanation by the trial court and the brief on appeal convinces this Court that the idea conveyed to the jury by the court and trial counsel contained an erroneous view of the law. In context, the instruction is found in this portion of the extended jury charge:
" Copyrightability is best defined in terms of what can and cannot be copyrighted. Ideas can never be copyrighted. Only the particular expression of an idea can be copyrighted. A general theme cannot be copyrighted but its expression throughout the pattern of the work, the sequence of its events, the development of the interplay of its characters, and its choice of detail and dialogue can be copyrighted. If, however, the expression of the idea necessarily follows from the idea to such an extent that the idea is capable of expression only in a more or less stereotyped form, it is not copyrightable.
Similarly, in a case like the instant one, which deals with factual matters such as news events, the facts themselves are not copyrightable but the form of expression of the facts and their arrangement and selection are copyrightable. Moreover, if an author, in writing a book concerning factual matters, engages in research on those matters, his research is copyrightable. As was the case with ideas, if the expression arrangement and selection of the facts must necessarily, by the nature of the facts, be formulated in given ways then they are not copyrightable. (Challenged instruction underlined)."
It is well settled that copyright protection extends only to an author's expression of facts and not to the facts themselves.* See, e. g., Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S. Ct. 714, 17 L. Ed. 2d 546 (1967); Chicago Record-Herald Co. v. Tribune Association, 275 F. 797, 798-99 (7th Cir. 1921); Alexander v. Haley, 460 F. Supp. 40, 45 (S.D.N.Y.1978); Lake v. Columbia Broadcasting System, 140 F. Supp. 707, 708-09 (S.D.Cal.1956). This dichotomy between facts and their expression derives from the concept of originality which is the premise of copyright law. Under the Constitution, copyright protection may secure for a limited time to "Authors ... the exclusive Right to their respective Writings." U.S.Const. Art. I, @ 8, cl. 8. An "author" is one "to whom anything owes its origin; originator; maker; one who completes a work of science or literature." Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S. Ct. 279, 281, 28 L. Ed. 349 (1884). Obviously, a fact does not originate with the author of a book describing the fact. Neither does it originate with one who "discovers" the fact. "The discoverer merely finds and records. He may not claim that the facts are "original' with him although there may be originality and hence authorship in the manner of reporting, i. e., the "expression,' of the [*1369] facts." 1 M. Nimmer, Nimmer on Copyright @ 2.03(E), at 2-34 (1980). Thus, since facts do not owe their origin to any individual, they may not be copyrighted and are part of the public domain available to every person.
The district court's charge to the jury correctly stated that facts cannot be copyrighted. Nevertheless, in its order denying defendants' motion for a new trial the court said it viewed "the labor and expense of the research involved in the obtaining of those uncopyrightable facts to be intellectually distinct from those facts and more similar to the expression of the facts than to the facts themselves." Miller v. Universal City Studios, Inc., 460 F. Supp. at 987. The court interpreted the copyright law to reward not only the effort and ingenuity involved in giving expression to facts, but also the efforts involved in discovering and exposing facts. In its view, an author could not be expected to expend his time and money in gathering facts if he knew those facts, and the profits to be derived therefrom, could be pirated by one who could then avoid the expense of obtaining the facts himself. Applying this reasoning to the case at bar, the court concluded "(i)n the age of television "docudrama' to hold other than research is copyrightable is to violate the spirit of the copyright law and to provide to those persons and corporations lacking in requisite diligence and ingenuity a license to steal." Id. at 988. Thus the trial court's explanation of its understanding of its charge undercuts the argument to this Court that the word "research" was intended to mean the original expression by the author of the results of the research, rather than the labor of research.
Apart from the directory cases, the only decision cited to this Court which lends support for the challenged instruction is Toksvig v. Bruce Publishing Co., 181 F.2d 664 (7th Cir. 1950). In Toksvig, plaintiff had written a biography of Hans Christian Anderson after extensive research of primary Danish sources. Defendant, who could not read Danish, copied twenty-four specific passages from plaintiff's book in writing her own biography. The Seventh Circuit held the copying of these passages, original translations from Danish separately copyrightable under 17 U.S.C. @ 6 (1970), constituted copyright infringement. The court went on to reject defendant's fair use defense, primarily because defendant's use of the translations from Danish had allowed her to write her biography in one-third the time it took plaintiff. The court said the question was not whether defendant could have obtained the same information by going to the sources plaintiff had used, but whether she in fact had done her own independent research. Id. at 667. Although most circuits apparently have not addressed the question, the idea that historical research is copyrightable was expressly [*1371] rejected by the Second Circuit in the more soundly reasoned case of Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S. Ct. 714, 17 L. Ed. 2d 546 (1967). In Rosemont, it was alleged that defendant's biography of Howard Hughes infringed the copyright on a series of Look articles about Hughes. The district court had asserted in sweeping language that an author is not entitled to utilize the fruits of another's labor in lieu of independent research, relying on Toksvig. The Second Circuit reversed. While not challenging the holding of Toksvig that substantial copying of specific passages amounted to copyright infringement, it rejected the language regarding independent research:
The line drawn between uncopyrightable facts and copyrightable expression of facts serves an important purpose in copyright law. It provides a means of balancing the public's interest in stimulating creative activity, as embodied in the Copyright Clause, against the public's need for unrestrained access to information. It allows a subsequent [*1372] author to build upon and add to prior accomplishments without unnecessary duplication of effort. As expressed by the Second Circuit in Hoehling :
618 F.2d at 974.
The valuable distinction in copyright law between facts and the expression of facts cannot be maintained if research is held to be copyrightable. There is no rational basis for distinguishing between facts and the research involved in obtaining facts. To hold that research is copyrightable is no more or no less than to hold that the facts discovered as a result of research are entitled to copyright protection. Plaintiff argues that extending copyright protection to research would not upset the balance because it would not give the researcher/author a monopoly over the facts but would only ensure that later writers obtain the facts independently or follow the guidelines of fair use if the facts are no longer discoverable. But this is precisely the scope of protection given any copyrighted matter, and the law is clear that facts are not entitled to such protection. We conclude that the district court erred in instructing the jury that research is copyrightable.
REVERSED AND REMANDED.