One historical copyright case that I was familiar with prior to this course was centered around the theft of trivia. After taking the course, I am now looking at this case with a different perspective and wonder how it would be decided under current Canadian Law.
Fred Worth from California published two books of trivia. He published The Complete Unabridged Super Trivia Encyclopedia in 1979, and The Complete Unabridged Super Trivia Encyclopedia, Volume II in 1981. [1]
[2]
In order to prevent others from taking his trivia and using it as their own, Worth included some incorrect trivia. Once incorrect bit of trivia was about Columbo. Columbo was the lead character in a detective show from the 1970s of the same name [3]. The trivia from Worth’s book stated Columbo’s first name was “Philip.” However, at no point in the show did Columbo reveal his first name (although astute viewers did not notice that his ID badge said Frank).
In 1981, the Canadians Chris Haney and Scott Abbott developed the game Trivial Pursuit. It is a trivia game where players try to answer enough trivia questions on different categories to win [4]. The game contains thousands of questions. The game has been popular since, with multiple versions existing in the present day.
[5]
However, on one of the questions cards, Worth discovered a question about Columbo’s first name. He turned the card over to discover that the answer was Philip. Trivial Pursuit had taken that question and answer directly from his book. After further digging, Worth discovered many more similarities. He argued that 1,675 questions (27.9%) in the Genus edition of Trivial Pursuit were taken from Super Trivia I, 1,293 questions (21.6%) in the Silver Screen edition were taken from Super Trivia I and/or II, and 828 questions (13.8%) in the Baby Boomer edition were taken from Super Trivia I and/or II. [6] Worth sued the makers of the game for $300 million for copyright infringement.
Worth lost his lawsuit and his subsequent appeal. The makers of Trivial Pursuit admitted to lifting trivia straight out of Worth’s Book, but the court sided with the defendants for two reasons. First, a person cannot copyright information. The 9th Circuit said “It is clear, then, that the use of the factual content in Worth’s books does not constitute infringement. The discovery of a fact, regardless of the quantum of labor and expense, is simply not the work of an author.” [5] This follows the general principle from Kenrick & Co. v. Lawerence & C0, over the issue of copyrighting a pictograph explaining how to vote. This also complies with the FC decision in Maltz v. Witterick. A paragraph 47, the FC says “there is no substantial taking or use by the Respondents of anything owned by the Applicants because the use of common historical facts is not copyright infringement [7].”
Another reason the claim failed was because the presentation of the of trivia was not copied. The 9th Circuit said that:
The arrangement of Worth’s book was not copied: His factual entries are arranged in alphabetical order; the Trivial Pursuit questions and answers are organized and color-coded by subject matter and are randomly arranged on each game card. As for the selection, although Worth’s books were the source for many questions, the entire selection of facts in the books and game cards is not substantially similar. [8]
This is again similar with Kenrick, where the Queen’s Bench said:
where the the degree and kind of protection given must vary greatly with the character of the drawing, and that with such a drawing as we are dealing with the copyright must be confined to that which is special to the individual drawing over and above the idea…there are scarcely more ways that one of drawing a pencil or the hand that holds it. [9]
So far, the issue seems fairly simple. A person cannot copyright knowledge or facts. That is clearly an overbreadth of copyright protection. It make doctorial sense because fact and history belong to the common heritage of people, and not the creation of any particular individual. However, when does the presentation of facts become an artistic creation that falls under the definitions of the Copyright Act. One case we studied examining this is Geophysical Service Incorporated v. Encana Corporation. There, raw seismic date is not copyrightable. That makes sense because it is the Earth with creates seismic phenomenon, not in person (would that mean Gaia has the copyright? Do the gods have copyright protection?) Instead, the presentation of the data in whatever medium is copyright [10]. The 9th Circuit did cover this by holding that the presentation between the trivia books and the game was different. However, I think one question that raises is whether or not a question maybe copyright. Answers are the facts, and are public domain, but questions are unique and creative ways to reach those facts. Many question from the game have some type creative spin on what would normally be a typical fact. Instead of asking a simple question like “what is the capital of France?” They ask, “what European capital has miles of explorable catacombs under the streets.” Both answer are Paris, and that of course not a copyrightable. However, the paths which take us to Paris are different. It is comparable to a different presentation of information. If you are not familiar with Trivial Pursuit, then perhaps you know Jeopardy! Those questions (yes, clues, not answers, you have to answer in the form of an answer, I know) are often elaborate, include double meaning, might have wordplay, etc. They represent common data in a unique way.
I don’t think Worth properly addresses this. This is an American case and their definition of copyright is similar, but not identical. From a Canadian lens, I wonder if a better argument could be made for copyright protection. Trivia questions are not as simple as providing raw common data. Questions are not the facts themselves, but rather a unique prompt to identify the fact. I don’t believe that questions found in such trivia game would likely get full legal protection. That could open the door a bit too wide. Also, user rights come into play and trivia questions seem like like fairly straight forward educational use (although amount of reproduction would be an issue, especially if people sell thousands of these games with protected questions). However, I do think it is a least a question worth asking.
[1] Worth, v. Selchow & Righter Company, 827 F.2d 569 (9th Cir. 1987)
[2] https://www.amazon.com/Complete-Unabridged-Super-Trivia-Encyclopedia/dp/0912588330
[3] https://en.wikipedia.org/wiki/Columbo
[4] https://en.wikipedia.org/wiki/Trivial_Pursuit
[5] https://cdn.britannica.com/99/246599-050-34651EE9/Trivial-Pursuit-board-game-1980s.jpg
[6] Worth, v. Selchow & Righter Company, 827 F.2d 569 (9th Cir. 1987)
[7] Maltz v. Witterick, 2016 FC 524.
[8] Worth, v. Selchow & Righter Company, 827 F.2d 569 (9th Cir. 1987)
[9] Kenrick & Co. v. Lawerence & C0. quoted by Jon Festinger, class slides, “Talk 2.”
[10] Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125
Communications Law
Great analysis. I think my argument would point to a question as the search to a determinative much like a fact is.
Perhaps though it is all moot. Even if they were to establish that a copyright existed, the defence of fair dealing should be strong especially using the category of education or potentially research.
As a follow up did you know the producers of Seinfeld sued a publishing company for using their sitcom as the basis for a Seinfeld trivia book. Castle Rock Entertainment Inc. v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998). The case was ultimately decided in favour of the Seinfeld producers. The judge determined that the questions were based on original author creative work. The Seinfeld ‘facts’ were not true facts but created ideas–hence the different ruling!
Cheer,
Doris
Hello Doris
I didn’t know about the Seinfeld case! It does make sense in that case because it’s not a “natural” fact but rather a created one, which would be copyright indeed.
That however does make me wonder about other forms of fictional facts (that’s a nice oxymoron). Take the Columbo question. Columbo is a fictional character created by whoever. So, asking a question and answer about his first name would be protected in the same way as the Seinfeld facts, no?
Yes, educational fair dealing certain comes to mind, but the amount of the dealing would be a bit much, no? As Prof. Festinger says, we would have to figure out the stew of fairness. Amount certainly that makes this less fair (thousand of games sold with hundreds of questions copied in each game), but perhaps the other ingredient can save the stew.
HI Max
Yes probably but if it is only one question out of hundreds then my guess is the substantiality question is too low to be considered infringement. (Cinar Corp. v. Robinson 2013, SCC, York University v. CCLA (Access Copyright) 2021 SCC32).
Have a nice night!
Doris