Let's Talk Donnellys

by Ray Fazakas

The many books, plays and television documentaries on the Donnelly story have spawned at least three copyright lawsuits. I write this little essay not as a lawyer but as one who was involved in two of those lawsuits. The latest author to run afoul of copyright law was Peter Edwards, author of "Night Justice: The True Story of the Black Donnellys" which came out in 2004. Unfortunately, it was filled with plagiarisms, much of them copied from my own works: "The Donnelly Album", "In Search of the Donnellys" and "Legend of the Roman Line: The Donnellys of Biddulph". I brought legal action and in the result obtained a judgment in Canada’s Federal Court against Edwards and his publisher Key Porter Books Limited for (1) payment of a sum of money by way of damages and costs (2) an injunction prohibiting further sales of Night Justice and other dealings with it such as the sale of subsidiary rights and (3) an order for destruction of all copies of the offending book in the warehouse of the publisher’s distributor.

It should be noted that Edwards attributed some of the material he copied. The Copyright Act of Canada, however, makes no mention of attribution. What this Act (which is a complete code of copyright in our country) deals with is PERMISSION. Failure to obtain permission to copy is infringement of copyright. Such copying can be (1) word for word or (2) "by colourable imitation" or (3) by way of appropriating sentence structures, points of view, expressions and concepts. "Colourable imitation" may be paraphrased as "disguised copying". Copying by way of appropriating sentence structures, points of view, expressions and concepts is dealt with by the Federal Court in the case of HAGER V. ECW PRESS LTD. ET AL., popularly known as the Shania Twain case. In my case, Edwards used all three of the above ways of copying.

To constitute infringement, there must be a SUBSTANTIAL copying without permission. It is often stated, for example, that one cannot claim copyright to the TITLE of a book. Whether such a statement can be baldly accepted as a true statement of the law can be argued but I believe that the case law indicates that the rationale for such a statement is that in most cases the title of a book is not a substantial enough part of it to make the copying of it an infringement. In this context I notice that in the year 2004 one Nate Hendley authored a new book on the Donnelly story which was published as "The Black Donnellys"! I wonder what Thomas P. Kelley would have said about this.

Another lawsuit concerning the Donnelly story was an action in 2002 for payment of royalties based on ownership of the copyright to Thomas P. Kelley’s two books, "The Black Donnellys" and "Vengeance of the Black Donnellys". It was brought by Theresia Winkler against Sam Roy and certain corporations owned or controlled by him. Theresia Winkler was the last landlady of Thomas P. Kelley, who died in 1982, and she claimed to be the owner of the copyright in the Kelley books as beneficiary under his last will. She registered her claim under the Copyright Act. Sam Roy’s corporations, on the other hand, claimed to own the copyright in Kelley’s works by virtue of having obtained an assignment of those rights from Kelley before he died in consideration of "a one-time payment" to him. The Sam Roy corporations had also registered their claim. The Court summarized the publication history of Kelley’s books and referred to Kelley’s later years as "impecunious" which conclusion appears to be confirmed by the facts which I have gleaned about him.

In the result the Federal Court held that the assignment by Kelley was valid and therefore Sam Roy’s corporations did indeed own the copyright and therefore the royalty rights to Kelley’s two books on the Donnellys. Mrs. Winkler, however, did not suffer a total defeat. The Copyright Act contains a provision that any assignment of royalty rights by a creator in his or her lifetime is only effective for a period of twenty-five years following the death of the author. After that the rights revert to the author’s estate. Mrs. Winkler, as the sole beneficiary of Thomas P. Kelley’s estate under his last will, was entitled to the copyright and therefore the royalties when they revert back to her in the year 2007.

It is here useful to address the requirement of registration. In the Winkler case both the Sam Roy corporations and Mrs. Winkler registered their claims and thereby on the face of things kept them alive. It is worth noting, however, that one who CREATES a literary work does NOT have to register. He or she MAY but does not HAVE TO register anything in order to acquire copyright. Copyright arises by virtue of the author creating the work. This is such a simple concept that it is often difficult to grasp. In addition, the concept is sometimes blurred in the minds of artists such as songwriters who register their works under an association such as The Society of Composers, Authors and Music Publishers of Canada (SOCAN) which collects and distributes performing and other credits. This kind of registration is different from copyright registration.

Several years ago an unscrupulous person who shall remain nameless got hold of a screenplay I wrote on the Donnelly story. He called me up and asked if I had registered it. "No," I replied, "I did not," for I knew full well that as its creator I owned the copyright without having to register and that my name as the copyright owner appeared on the cover page. The caller was astounded that I had not registered. I took it from our conversation that he was familiar with registration of songs by songwriters referred to above but he was confusing this with copyright. He quickly said goodbye and I never heard from him again. A little while later, however, I did hear by chance from a television producer in Toronto who claimed to have seen a screenplay on the Donnellys allegedly written by that same person. It turned out that he had simply torn off the cover page with my name on it and replaced it with one with his own name thinking he would thereby reap the rewards, such as they might be.

As for the third lawsuit, in 1984 Pagurian Press Limited wrote to me stating that Pagurian owned the rights to Thomas P. Kelley’s "The Black Donnellys" and was wanting to put out a new edition of that book with illustrations from my collection and more specifically some of the illustrations which appeared in my book, "The Donnelly Album". Would I be interested in providing those illustrations? I replied that I would and the only conditions I stipulated were that I receive a credit adjacent to each picture and that I be paid a small, almost nominal, fee for the images they proposed to use. If they agreed to those two simple conditions I would give my permission.

I did not hear from Pagurian again. They certainly heard from me, however, when I walked into a bookstore one day and picked up the new Pagurian edition of "The Black Donnellys", for there on the front cover were several of my illustrations. Throughout the book itself were about 27 illustrations, 26 of which were copied straight out of "The Donnelly Album". The Pagurian illustrations were drawings only but a glance could tell they were obviously copied from my book. Quite naturally then I instituted a lawsuit for infringement of copyright not only against Pagurian but against Christopher Ondaatje whose name appeared on the book as publisher. In due course the case was settled to my satisfaction.

Now some may question whether (a) the copying of photographs by way of drawings was an infringement of copyright and (b) could I claim copyright in the illustrations, mainly photographs, created by others many years before? My answer to (a) is, Yes: copying is copying, no matter what form it takes, and to (b) my claim to the illustrations was AS A COLLECTION OR COMPILATION.

This raises some basic issues in copyright law. First, many of the photographs were made by photographers who therefore owned the original copyright. That copyright had expired, however, fifty years after the death of the creator. I spent many years in collecting copies of those old photographs of the Donnellys and others involved in their story and my collection now runs to many hundreds. While there can be no copyright claim in facts, information or ideas, there can be in an EXPRESSION of those things and the case law indicates that a compilation can be an expression of a fact or an idea which therefore is subject to copyright. There can, for example, hardly be a more basic fact than a number and there can be no intellectual property or copyright claim in a number. A COMPILATION OR UNIQUE COLLECTION of numbers, however, is a different matter and there are several decided cases which confirm that copyright can be claimed in a compilation of numbers such as in lottery numbers or other contest involving numbers. In my case it is a compilation of photographs to which I claim copyright.

For readers who may be further interested in copyright law I suggest the best place to start would be a reading of the Copyright Act of Canada. While a Google search on the internet will provide many sites dealing with plagiarism, I caution the reader to distinguish between plagiarism in the academic field and commercial plagiarism. Failure to attribute in the academic field is intellectual dishonesty; it may be that in the in the artistic or business world also but in these arenas failure to obtain PERMISSION is infringement of copyright. And while copyright law is basic throughout the world it may vary slightly from country to country. In the United States, for example, registration gives the registrant added advantages in the field of damages. My works are registered in the U.S.

None of the above purports to be, nor should it be taken as, legal advice. For legal advice, a reader should consult a lawyer.

Ray Fazakas
ray.fazakas@hwcn.org