Truth may be Stranger than Fiction, and it may also be Protected by Copyright: Hodgson v Isaac

The Facts

Paul Hodgson was disabled as a result of childhood meningitis. In 2000, he self-published his autobiography. He wrote the book to challenge the stereotype of the wheelchair-bound victim. It tells the story of his life as a fan of Darlington Football Club, his relationship with his family and his experiences in school, employment and Community Care.

Andrew Isaac wrote a script based on Hodgson’s story with oral permission from Hodgson, the product, Isaac claimed, of his own creative input and also based on conversations he had with Hodgson about his life. Isaac accepted that he had a copy of the book but maintained he had not read it until this dispute arose. Isaac had, however, read a script written by someone else which was based on the book but did not tell an identical story.

There were differences of opinion between Hodgson and Isaac about Isaac’s work. Hodgson withdrew any permission Isaac had to use an adaptation of the book.

Isaac believed that the script was not an adaptation of the book and that he did not require Hodgson’s permission to have his script made into a film.

The Law

If the script reproduces the whole or any substantial part of the book, then the script is an adaptation of the book and reproducing the script would be an act restricted by copyright.

Judge Birss in the Patents County Court followed the approach adopted by the court in Baigent & Leigh v Random House (the Da Vinci Code case) by raising and answering the following questions:

1     Were there similarities between the script and the book? Without similarities, there is no arguable case of copying. The judge observed that the two stories were not identical but they were plainly similar. If the book had been a work of fiction, there would be no doubt that the book had contributed significantly to the script, even though the text is entirely different and there are important scenes in the script which consist entirely of Isaac’s own creative work.

2     Did Isaac have access to the book? Could access be directly proved or properly inferred? Isaac acknowledged that he had received a copy of the book but he maintained that he did not read the book until after he had written the script and that any similarities derived from conversations he had with Hodgson about his life. Isaac had, however, received and read a copy of the other script, which had been derived from the book.

3     Did Isaac make some use in his script of material derived by him, directly or indirectly, from the book? There was much in the script which was wholly independent of the book but the judge found that the script was very closely related to the book in terms of its plot, characters and the striking incidents and events which take place. The text was almost entirely different but nine episodes in the script revolve around striking events present in the book and five more include notable events from the book as important parts of the episode: roughly half of the dramatic incidents in the script derived from the book. The similarities in terms of detail were too close to be explicable any other way. Overall it was more likely than not that the script was copied, in part, from the book (directly or from the other script).

4     If use was made of the book in producing the script, did such use amount, in all the circumstances, to a “substantial part” of the book? To be an adaptation of the book within the terms of copyright law, the material reproduced in the script would have to represent a substantial part of the book. The test for substantiality is a matter of quality and not quantity. A substantial part must be one in which the elements reproduced are the expression of Hodgson’s intellectual creation. An author has no copyright in his facts or in his ideas, but only in his original expression of such facts or ideas.

In quantitative terms what had been reproduced was not the majority of the dramatic events or incidents from the book. There was much more in the book than in the script. That was largely due to the different nature of the works – it is in the nature a film script that it will often depict fewer incidents than a book and part of the skill of the script writer lies in distilling the essence of a story presented in a book to make a suitable film. The judge did not doubt that the script was the product of considerable skill of that kind on Isaac’s part.

The idea of telling the story of a disabled person who followed a football team, on its own, would not be a substantial part of the book. But, in addition to using the main characters and many of the settings and contexts, the script used specific and striking incidents and details from the book. It also employed the same interpretation of those events as appeared in the book. Placing an interpretation of such events from one’s own life and using them to tell one’s own story is a key part of the intellectual effort of the author of an autobiography.

5    What are the circumstances or factors which justify evaluating the part copied in the script as “a substantial part” of the book? The details and incidents reproduced were not merely a generic story about a disabled football fan and their interpretation was a key part of what makes the book itself an original work. The judge held that all these elements together amounted to a substantial part of the book. Their presence in the book was the result of Hodgson’s intellectual effort in having set them down and told his story. The fact that they are presented as factual rather than fictional did not make a difference, at least in this case.

The court was not asked to consider any issues of confidentiality.

The Lessons

  • There may be no monopoly over facts or copyright in ideas, but this case illustrates the murky fringes where facts and ideas morph into the expression of ideas and are protected by copyright. Care must be taken when producing a film based on fact rather than fiction not to stick too closely to anyone’s account of what might be thought to be in the public domain or otherwise free for use.
  • Just as few people enjoy seeing photographs of themselves, few people are happy with the way in which they are portrayed on screen (unless it’s a hagiography). Get signed releases from potential subjects early on to avoid suffering from any change of heart on their part.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.