Reagan Biographer Claims 'Copyright Infringement' Because Another Biographer Used The Same Facts

from the facts-in-evidence dept

Fri, Aug 8th 2014 9:02am — Timothy Geigner

It's kind of crazy how often it seems biographies, theoretically personal tales made of facts, breed copyright disputes. In most cases, the aggressors in these cases somehow think that a factual representation of what the subject of a book said in the past can somehow be owned and/or controlled. Facts, of course, cannot be copyrighted, nor can history itself, which is essentially all a quotation is. That very simple distinction seems to be lost on a great many people, unfortunately.

Joining their unfortunate ranks is Craig Shirely, an author who has produced books in the past on Ronald Reagan and is presently threatening to sue Rick Perlstein for copyright infringement in his new Reagan book, The Invisible Bridge. Shirley's demands are, um, heavy.

Shirley's attorney is demanding that the publisher pulp Perlstein's book, pay $25 million in damages, and take out ads apologizing to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon.

A book burning, twenty-five mil-do, and paid apologetic ads in seven different publications? Well, okay then. You're probably thinking that Shirley has some kind of open and shut case with those kinds of demands. He doesn't. What he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley's previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that's about it, and most of those sections are recounting a setting or happening in history.

In the first item on the latter list, the two books do sound alike: Describing the red-light district in Kansas City, Perlstein echoes not just the info in Shirley's text but Shirley's words "festooned" and "smut peddlers." After that, though, we essentially get a list of places where the two writers cited the same facts. Facts are not copyrightable, and one pair of similar sentences does not an infringement make. I don't see a dollar's worth of damages here, let alone 25 million.

And it's not as though Perlstein is attempting to hide his use of Shirley's books as source material. The book-in-print directs those interested in the source material to Perlstein's website where he lists them out, including several of Shirley's books. He further credits Shirley's work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier.

Shirley and his lawyers try to twist nearly all of this. They also show a fairly weak understanding of copyright law, often confusing plagiarism and copyright infringement. The two may be related, but are not the same thing. Again, copyright covers the specific expression, but not the idea or the facts. And yet, Shirley's lawyers argue that Perlstein's use of the same facts where he expresses them differently is merely evidence of Perlstein trying to "hide" his actions. Yes, that's right. The act of rewriting the same factual information is being used as evidence of infringement because it's different. But that's not how copyright law works.

Perlstein's publisher, Simon and Schuster hit back strongly, explaining the basics of copyright to Shirley's lawyers:

Your claim ignores the most basic principal of copyright law: copyright only protects an author's original expression. It is therefore important in any copyright analysis to distinguish between original expression and the unprotected elements of a work. Certain well-settled principles govern that analysis and nothing you have drawn to our attention supports a I conclusion that Mr. Perlstein has appropriated Mr. Shirley's protected expression.

First, copyright does not protect facts, ideas or theories.... This is true even if the author is the first to have discovered the facts or formulated the ideas. Contrary to your assertion in your letter, copyright does not protect "facts and ideas Mr. Shirley first discovered an developed."....

[....]

All of the examples you cite consist of historical facts from the life of Ronald Reagan, which are unprotected by copyright. Thus, for example, you cite to page 770 of Invisible Bridge, but the historical fact that the manager threatened to cancel the delegation's reservation derives from Time magazine, where Mr. Shirley obtained this information. Mr. Perlstein read the same Time article, but nonetheless chose to credit your client's secondary use of the work. Similarly, Mr. Shirley cannot possibly own a copyright in the fact that the major presidential candidates released their medical records and the information those records contained or that CBS News reported on the number of delegates Ford had accrued. These historical facts were widely reported in contemporaneous news reports. To the extent there can be said to be any similarity of phrasing in the way the two books convey these facts, the similarities consist of commonly-used expressions that cannot be the basis for a claim.

There's a lot more in those letters which you can read below. This includes an attempt by Shirley to twist an email from Perlstein into saying something it did not. Apparently in angrily discussing the citations (which Perlstein put online, rather than directly in the book), Perlstein trotted out the (overly abused) line "information wants to be free." Shirley's lawyers attempt to portray that as evidence of copyright infringement by Perlstein. However, as Perlstein's lawyers point out, this is not even remotely accurate. The point Perlstein was making was about "open sourcing" his sources by putting them online, making them much easier to use for research purposes, rather than having them locked up in a book. These are the very same sources in which Perlstein regularly cites Shirley.

Mr. Perlstein's use of electronic source notes, with links to the actual source materials, is an innovative and dramatic means of full disclosure. As the "Note on Sources" explains, Mr. Perlstein made the sources available electronically, rather than in hard copy form, to make it easier for readers to access the sources directly and engage with them. In the Internet age, readers are far more likely to actually view the source material when it is presented this way then they ever would be to seek it out in paper form at a library. Indeed, Mr. Perlstein's comments about "open sourcing" in his correspondence with your client cannot be twisted as your letter suggests; but instead serve to underscore his ultimate purpose to provide ready access to and openness concerning his sources. To that end, when your client contacted him with a question about how his book was sourced, Mr. Perlstein provided him with a link to his source notes and his Note on Sources, all before publication.

It should also be noted that Mr. Perlstein's electronic notes serve another purpose that ultimately may well help your client's presumed goal to sell books. As can be seen on Mr. Perlstein's site, a reader who clicks on one of the citations to Reagan's Revolution is automatically linked to a Google Books page where he or she can not only read the cited page from Mr, Shirley's book but is also given the opportunity to purchase the book, This is hardly the design of an author's intent to "steal" another's work.

Completely destroying the entire book, handing over $25 million and issuing a public apology for no actual infringement? That's not going to happen. And, perhaps Shirley's lawyers are recognizing this. While the letters promise a pre-publication lawsuit would be filed on July 30th, the book was published on August 5th and as far as we can tell, no actual lawsuit has yet been filed.

235932468 CPS Letter to Simon Schuster 7 25 14 (PDF)235932468 CPS Letter to Simon Schuster 7 25 14 (Text)

235933018 CPS Letter to Simon Schuster 7 28 14 (PDF)235933018 CPS Letter to Simon Schuster 7 28 14 (Text)

235933020 Perlstein Response to CPS (PDF)235933020 Perlstein Response to CPS (Text)

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Filed Under: citations, copyright, craig shirley, facts, ideas, plagiarism, rick perlstein, ronald reagan
Companies: simon & schuster

29 Comments

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Ninja (profile), 8 Aug 2014 @ 8:04am

That's what you get when fair use is the exception that must be defended in court rather than the norm.
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jupiterkansas (profile), 8 Aug 2014 @ 9:20am

There's a red light district in Kansas City? Those two strip clubs next to each other?
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Anonymous Coward, 8 Aug 2014 @ 9:21am

"Your claim ignores the most basic principal of copyright law:"

The greatest offense in this sorry affair is that Simon & Schuster's lawyers can't keep "principal" and "principle" straight.
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John Fenderson (profile), 8 Aug 2014 @ 9:23am

Re:
Come on. It's not like the careful and precise use of language is a core skill of an attorney or anything! /sarc
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Violynne (profile), 8 Aug 2014 @ 9:29am

This is just another idiotic example of someone believing copyright covers the idea, not the works.
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Rich, 8 Aug 2014 @ 9:32am

Re:
If your greatest take-away from this was a minor grammatical error, I feel sorry for you.
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Gwiz (profile), 8 Aug 2014 @ 9:49am

Re:
This is just another idiotic example of someone believing copyright covers the idea, not the works.

Probably stemming from the misnomer "Intellectual Property".

Wouldn't "Reproducible Property" be closer to what copyright and patents protect?
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Trevor, 8 Aug 2014 @ 9:59am

Um...
And yet, Shirley's lawyers argue that Perlstein's use of the same facts where he expresses them differently is merely evidence of Perlstein trying to "hide" his actions. Yes, that's right. The act of rewriting the same factual information is being used as evidence of infringement because it's different. But that's not how copyright law works.

Didn't Aero try this? AVOIDING BREAKING THE LAW IS BREAKING THE LAW DERP.

/s
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Some Other AC (profile), 8 Aug 2014 @ 10:19am

This has been getting plenty of media attention lately, but more along the silence the other party side. I first caught this across my news feed middle of the week. It appears the authors sit on opposing sides of the political fence. Shirley is apparently a conservative, while Perlstein is liberal. This appears to be more of an Ideology war, with copyright and plagiarism as the weapons of choice in a smear campaign. I am including some sites, including at least one conservative site for a semblance of balance.

http://crooksandliars.com/2014/08/craig-shirley-launches-all-out-smear

http://www.slate.com/b logs/weigel/2014/08/05/read_the_letters_at_the_center_of_the_new_reagan_book_plagiarism_controversy. html

http://www.breitbart.com/Big-Government/2014/08/05/Reagan-Biographer-Accuses-Rick-Perlstein-of-P lagiarism
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wereisjessicahyde (profile), 8 Aug 2014 @ 10:23am

Judging by his history I would be more worried about his clearly unhealthy fixation with Ronald Reagan.
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Anonymous Coward, 8 Aug 2014 @ 10:33am

Re:
"Shirley you jest."

"I'm not jesting and don't call me Shirely."
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Mason Wheeler (profile), 8 Aug 2014 @ 10:45am

"25 million? Surely you can't be serious!"
"I am serious, and don't ca... argh!"
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Blue Sweater (profile), 8 Aug 2014 @ 11:29am

Re:
My god, that breitbart page...

"Historian Craig Shirley has accused liberal author Rick Perlstein of plagiarism"

And then the comments...
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Craig Shirely, 8 Aug 2014 @ 11:30am

Craig Shirely
Craig Shirely is an idiot
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Ninja (profile), 8 Aug 2014 @ 11:33am

Re: Re:
It's not property. I'd go for "Government license to restrict copy and reproduction".
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orbitalinsertion (profile), 8 Aug 2014 @ 11:47am

but, but...
Intellectual say something about me, and Property says something about what is mine! *

*(!!!!111eleventy! My IP, which belongs to me, is mine.)
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Androgynous Cowherd, 8 Aug 2014 @ 12:36pm

Crazy?
It's kind of crazy how often it seems biographies, theoretically personal tales made of facts, breed copyright disputes.

Actually, I'm not surprised at all. Since biographies of the same person invariably are telling the same story (albeit with different emphases and slants) there will be many points of resemblance between them. Add in a dose of permission culture and ownership culture and an author is quite likely to see those similarities and yell "thief!" ...

Again, copyright covers the specific expression, but not the idea or the facts. And yet, Shirley's lawyers argue that Perlstein's use of the same facts where he expresses them differently is merely evidence of Perlstein trying to "hide" his actions.

Shades of Aereo here? Carefully avoiding infringement is infringement? Hmm.
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Anonymous Coward, 8 Aug 2014 @ 12:46pm

Re: Re:
See, Shirley is a "biographer." Perlstein is a "liberal." Shirley being a conservative is left out because it's presented as normal, and Perlstein isn't described as a biographer even though he wrote a biography. The most important thing is that he's a "liberal" which is a difference that needs to be pointed out in the headlines to trigger the two minutes hate from the commenters. Thus undermining the entirety of the article because any facts depicted within it are suspect due to the obvious bias of the author and the intended audience.
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John Fenderson (profile), 8 Aug 2014 @ 12:49pm

Re: Re: Re:
Well, in all fairness, simply appearing on sites that exist to be partisan cheerleaders undermines the entirety of the article in the first place.
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Josh in CharlotteNC (profile), 8 Aug 2014 @ 1:55pm

Re: Re:
Or, you know, a publisher with many editors on staff.
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Anonymous Coward, 8 Aug 2014 @ 3:11pm

A win and precedent, please
Am I alone in hoping for a precedent-setting Shirely win? "Copyright kills off entire history profession" - this could be the so ridiculously Ott result leading to a wakeup call
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Mark Gisleson (profile), 8 Aug 2014 @ 5:18pm

Re: ideology war
That's exactly right. Perlstein's documentation attacks the right's myth building. Anything that detracts from Reagan as Buddy Jesus offends the right, and the right still believes that it should be illegal to offend them.

It is important to fight back when the media confuses the right with conservatism, a label the modern right and Republican party do not deserve. This is the party of Nixon's Southern Democrats. They are ideological pissants who would rather tear down than build, prefer libel to fact finding, and favor oppression over liberation.
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msmolly (profile), 8 Aug 2014 @ 6:50pm

Re: Re:
It is more likely a typo, since it is used correctly elsewhere in the document. That's as silly as blaming Geigner for "Craig Shirely" in the second paragraph when the name is spelled correctly all through the rest of the post.
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Whatever, 8 Aug 2014 @ 7:35pm

Mike Masnick just hates it when copyright law is enforced.
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Anonymous Coward, 8 Aug 2014 @ 8:18pm

Re:
From a normal POV, or that of someone who wanted to be approved by Falwell's lunatic puritans?
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JMT (profile), 8 Aug 2014 @ 11:21pm

Re: Re:
If you can't spot hyperbole used for humorous intent, I feel sorry for you.
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Coyne Tibbets (profile), 8 Aug 2014 @ 11:44pm

Bad ol' infringer me
Ronald Wilson Reagan was a President.
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Coyne Tibbets (profile), 8 Aug 2014 @ 11:47pm

Re:
"Richard" wrote that back on May 19th. Get your checkbook out, he's bringing his lawyers.
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nasch (profile), 11 Aug 2014 @ 12:14pm

Re: Crazy?
Add in a dose of permission culture and ownership culture

That's the crazy part. ;-)
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