Conjuring Copyright Protection and Adjudicating Apparitions: Should the Law Consider Ghost Stories Historical Facts?

Picture1By Daniel Hagen

If Warner Bros. fails to prove the existence of ghosts and demons in court, it may have to pay out nearly one billion dollars. Or, at least that’s how the entertainment media has positioned a lawsuit that is currently pending in Federal Court in the Eastern District of Virginia. Brittle v. Time Warner involves a copyright dispute over the popular 2013 film The Conjuring, as well as its sequels and spin-offs. The film series follows the adventures of two alleged paranormal investigators, Ed and Lorraine Warren, who investigate hauntings, demon possessions, witchcraft, and satanic rituals. During their adventures, they confront evil spirits and demons using a variety of methods, including séances and exorcisms. The outcome of the case may depend to some degree on whether the events portrayed in the film are properly characterized as “historical facts.”

Ed and Lorraine Warren are real people who have made a career as “demonologists.” The marketing for The Conjuring states that the films are “based on the case files of the Warrens” and “based on real life events.”  However, author Gerald Brittle, the plaintiff in this case, claims to own the exclusive copyrights to the Warren case files as well as the subject matter of their careers as paranormal investigators. Brittle authored a book originally published in 1980 titled The Demonologist: The Extraordinary Career of Ed and Lorraine Warren, some portion of which arguably served as the basis for The Conjuring franchise. While Warner Bros. got the blessing of the Warrens to make movies based on their files and career, Brittle claims that those rights were no longer theirs to sell or give away.

So far this sounds like a fairly straightforward copyright case. But what makes this case interesting is that Warner Bros. appears to be relying in part on a defense that the films are not based on copyright protected creative work, but rather, on factual historical events. According to the complaint, Warner Bros. has claimed that the Warren case files and narratives about their career are just reports of factual occurrences and are therefore not entitled to the full ambit of copyright protection normally afforded to creative works. In response, Brittle argues that supernatural yarns cannot be historical facts because there is no evidence that supports the existence of the supernatural. Furthermore, many of the Warrens’ files, including specific details incorporated into the films, contain claims that are demonstrably false and fabricated. Fabrication of historical events, the argument goes, is necessarily creative.

Copyright law protects creative expression, including the organization of factual material, but not the underlying facts upon which those expressions are based. Furthermore, there is case law in some federal circuits supporting the notion that interpretations of factual events are also uncopyrightable as a matter of law. Other circuits have found the opposite. But are the details surrounding the events portrayed in The Conjuring and in the case files of the Warrens mere “interpretations” of historical events or are they outright fabrications? Can such a thing even be proven either way?

There is no question that Brittle’s book The Demonologist, as well as the Warren case files have been held out as though they were non-fiction reports of historical events. Even the Amazon listing for The Demonologist makes no effort to imply that the book is a work of fiction, dubbing Brittle a “non-fiction author” and dubiously boasting that the book is used as “a text in seminaries and classrooms.” In addition, the Amazon description explicitly links itself to the Conjuring films stating, “Don’t miss the Warrens in the hit film, ‘The Conjuring’ and the upcoming film ‘The Conjuring 2: The Enfield Poltergeist.”

Since Brittle has arguably relied on descriptions of his book and the Warren files as being reports of historical facts, he may have an estoppel problem. Estoppel is a legal principle that in some situations, precludes parties to a proceeding from making claims contrary to positions they’ve previously asserted or relied upon. The complaint attempts to get ahead of this problem, saying that Brittle initially believed the Warren files and narratives were based on historical facts, but that over time he became convinced that the Warrens’ claims completely lacked any credibility. Whether resolution of this claim would be sufficient to overcome an estoppel defense is not yet obvious.

If this case goes to trial, it will raise some rather novel issues to the court regarding the limits of the historical fact vs. creative output spectrum. Just how far does the legal “historical fact” concept stretch? We’ve already seen that it may encompass “interpretations” of historical facts. What about interpretations so fantastical that they defy credulity? Surely such “interpretations” do rely on significant creative output whether such narratives purport to relate historical facts or not. While it seems ridiculous to think that a court could define historical facts to include supernatural entities, it wouldn’t be the first time a court reached that kind of conclusion on technical grounds. In Stambovsky v. Ackley for example, the New York District Court held that a house was haunted as a matter of law.  Since Warner Bros. doesn’t have a ghost of a chance of showing the existence of supernatural entities, they’ll be banking on legal concepts flexible enough to include obvious falsehoods as historical facts.

Picture Source: Warner Bros.

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