Historical non-fiction works as basis for fiction material?

Where a novel or feature film is based on actual events that have already been published in a non-fiction work, the question arises as to what extent the adoption of one or more elements constitutes a copyright infringement. The Higher Regional Court (OLG) Munich reached a fundamental decision on this issue in response to a claim by a non-fiction author against the bestselling novel "Tannöd" by Andrea Maria Schenkel.

The non-fiction author had published two non-fiction works about an unsolved murder case on a remote farmstead in Hinterkaifeck in Bavaria. Drawing on, amongst other things, criminal records and newspaper reports, he had compiled the background history, the presumed sequence of events, and the discovery of the murder victims. In the later crime novel, he considered his copyright to be infringed.

Court decision

The Higher Regional Court (OLG) Munich (judgment of 12.11.2009, Az.: 6 U 3595/08 – Tannöd) dismissed the claim. The plaintiff had neither copyright nor unfair competition law claims.
While the course of action in a literary work, the characterisation and role distribution of the characters involved, the design of scenes, and the scenery of a novel may enjoy copyright protection, provided that these constitute elements or formal components of the work that bear the personal imprint of the author, historical or actual events, by contrast, are not subject to copyright protection in their essence.
According to the court's view, these principles could likewise be applied where a non-fiction work serves as the basis, if the plaintiff, as in the present case, has also incorporated personal elements into the course of the narrative.

It must first be examined whether the elements added to the historical events, considered individually or in their entirety, constitute an original creative performance and contain personal characteristics.
In a further step, it must then be examined whether a free use does not lie present, that is to say the extent to which the added elements were adopted by the new work and the extent to which the borrowed personal characteristics of the protected earlier work fade into the background in view of the distinctive character of the new work.
In the case at hand, an infringement of copyright through the adoption of the collection, selection, division and arrangement was to be found just as little as the adoption of protected scene designs.

Insofar as the borrowed features do not constitute demonstrable historical events which are not subject to copyright protection, the individual elements do not constitute personal characteristics of the plaintiff and therefore do not constitute works protected by copyright. Finally, in any event, a sufficient internal distance was maintained, since the original work pales in comparison to the particularly valuable artistic design of the crime novel.

Conclusion

The use of non-fiction works in research for historical novels does not in itself lead to a plagiarism risk. In the absence of the adoption of specific text passages bearing the personal imprint of the author, recourse to historically proven elements is neither relevant under copyright law nor is reliance on the collection, selection, division and arrangement of the material – provided that this selection, arrangement and division of historical events does not, in exceptional cases, exhibit creative personal characteristics, which is rarely the case with non-fiction works. Even if this were to be the case, there is the possibility of free use if the distinctive character of the new work causes the original creative features of the original work to fade into the background or if otherwise a sufficient internal distance has been maintained.