AS A MATTER OF FACT: COPYRIGHTING FICTITIOUS ENTRIES WITHIN REFERENCE WORKS.

• Author: Kett, Jacqueline

CONTENTS INTRODUCTION I. TRULY FICTITIOUS ENTRIES A. Insignificant Fictitious Entries B. Fake Facts Treated as Facts C. Fake Facts Treated as Fiction II. PARTIALLY FICTITIOUS ENTRIES III. FICTITIOUS ENTRIES THAT BECOME FACT CONCLUSION "As far as I'm concerned, the only difference between fact and what most people call fiction is about fifteen pages in the dictionary." (1)

--Charles de Lint

INTRODUCTION

In May 2005, New Oxford American Dictionary published its second edition, which "added nearly 3,000 new words, senses, and phrases" to its pages. (2) Within months, there were rumors that a made-up word beginning with the letter "e" had been added. (3) After scrutinizing through all 3,128 "e" entries, an independent investigator determined that there were six possible made-up terms:

Earth loop: n. Electrical British term for ground loop.

EGD: n. a technology or system that integrates a computer display with a pair of eyeglasses ... abbreviation of eyeglass display.

Electrofish: v. [trans.] fish (a stretch of water) using electrocution or a weak electric field.

ELSS: abbr. extravehicular life support system.

Esquivalience: n. the willful avoidance of one's official responsibilities ... late 19th cent: perhaps from French esquiver, "dodge, slink away."

Eurocreep: n. [informal] the gradual acceptance of the euro in European Union countries that have not yet officially adopted it as their national currency. (4)

These entries were sent to nine lexicographers to determine which was the dupe. Seven authorities reached the same conclusion: esquivalience wasn't a word. (5) When confronted, the editor-in-chief of the New Oxford, Erin McKean, admitted that esquivalience was the fictitious entry. Comparing their trick to "tagging and releasing giant turtles," she claimed the team had added the word to track when competitors copied their work. (6) Like clockwork, "esquivalience" was later spotted in other reference works. (7) As noted by one scholar, "certainly those turtles' migration to Dictionary.com successfully dented its reliability and editorial probity." (8)

Fake entries have been found in numerous industries, ranging from cartography (9) to computer science. (10) There are a variety of reasons that fictitious entries could ultimately be included in a reference work, such as by mistake, (11) as utter nonsense, (12) to prove a point, (13) or to entertain. (14) Though the means for inclusion of these fictitious entries can vary, many are used as copyright traps. For several industries, it was an open secret and long-held tradition to include them. (15)

Falsities can be passed down from one work to the next. (16) Many creators of reference works assume that if their phony facts appear in a competitor's work, they have a surefire case of copyright infringement. Courts hesitate to agree. (17) While some have come out in favor of the creators, (18) many others have not. (19) This inconsistency is largely because copyright protection does not extend to factual information. (20) Somewhere between fake and fact, fictitious entries are false information presented in an otherwise factual body of work. As a result, courts waffle on their treatment of these irregularities. Maybe a false biography is based off of a historical person's life. (21) Or a fake word makes its way into the common lexicon. (22) What about works like The Blair Witch Project (23)--entirely fictitious but "presenting itself as a real investigative project"? (24) These scenarios pose complex legal questions and suggest that there ought to be multiple approaches to dealing with fake facts and fictitious entries.

This Comment seeks to explore the different degrees of falsity and how they impact the legal analysis of fake facts. This Comment uses the terms "fictitious entry" and "fake fact" synonymously. Part I analyzes entirely fictitious entries and discusses three different approaches to addressing them. Part II examines the nuances of partially fictitious entries. Part III investigates fictitious entries that take on a life of their own. Finally, because the opportunity is ripe, I have included a fake fact of my own in this very paper. (25)

1. TRULY FICTITIOUS ENTRIES

   Courts differ in their approaches to purely false facts within reference works. This section analyzes three of these approaches: (1) largely ignoring the fake facts; (2) treating the fiction as fact; and (3) treating the falsities as fiction.

   1. Insignificant Fictitious Entries

      To prove a prima facie case of copyright infringement, the plaintiff must show evidence that they own a copyright in their work, as well as evidence that the defendant copied that work. (26) Further, proof of copying typically consists of showing both defendant's access to plaintiffs work and a substantial similarity between the two. (27) As fake facts often serve as a minor portion of an entire body of a reference work, they are frequently treated only as evidence of copying and are not examined for copyright protection. (28)

      In Alexandria Drafting Co. v. Amsterdam, (29) the plaintiff was a well-established corporation that published maps. To protect its work, the company added copyright traps such as "fictitious streets, little dead-end additions to the roadways of the region that ... had their genesis solely in the creative minds of [the plaintiff's] cartographers who seeded these fictional geographic tidbits ... to capture the unwary cartographic plagiarist." (30) When eighty-one of these traps were discovered on several maps published by a competitor, plaintiff brought suit. (31) The court utilized these inaccuracies as showing evidence of copying. (32)

      The other element needed to prove actual copying is a substantial similarity between the two works. (33) Fake facts are less useful in this analysis as "common errors are often so minimal as to be insubstantial [or] common errors may consist solely of unprotectible facts." (34) For example, Feist Publications, Inc. v. Rural Telephone Service Co. (35) was a seminal copyright infringement case regarding similar phone directories. The plaintiff's directory contained thousands of entries, four of which were fabricated. During trial, the plaintiff offered the inclusion of these phony numbers in the defendant's directory as evidence of copying. (36) While the Supreme Court accepted the four entries as evidence of the plaintiff's claim, it did not use the numbers in its substantial similarity analysis, nor any other analysis. Ultimately, the Court deemed the overall work to be largely factual and, therefore, not eligible for copyright protection. (37) This attitude is common in these types of cases. (38)

      Notably, some compilations of reference works (including those with factual inaccuracies) can achieve copyright protection provided that "the materials are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes a new work." (39) While this is outside the scope of this Comment, many scholars have argued for the protection of reference compilations. (40)

   2. Fake Facts Treated as Facts

      It is well-accepted that copyright protection is limited to that which is owned. (41) Since "[fjacts are discovered rather than authored," (42) facts are not entitled to copyright protection. (43) Everyday language echoes this sentiment. Percival Lowell discovered Pluto's existence, he didn't possess the idea of Pluto. (44) Children sitting at the dinner table tell their parents facts that they learned in school that day, not facts that they now own. Archimedes shouted "Eureka!"--Greek for "I found it!"--when he came upon his theories of water displacement. (45) No one owns knowledge and, as a result, the law does not grant rights to it. Courts haven't been shy in applying this rule. (46) The Supreme Court noted that "[t]he distinction [between what is entitled to copyright protection] is one between creation and discovery. The first person to find and report a particular fact has not created the fact, he or she has merely discovered its existence." (47)

      Fake entries are the opposite: they are authored rather than discovered. As a result, it would be logical to assume that all courts would treat them as works of authorship entitled to protection, yet only some do. (48) Instead, others believe that how the fictitious entries are presented matters. (49) These fictitious entries are assumed to be truths by the mere fact that they exist within a reference work. Because of this, many courts will "hold you to your original representation." (50)

      This theory, known as the Factual Estoppel Doctrine, (51) was first applied over 100 years ago. (52) From a policy perspective, the courts utilize the Factual Estoppel Doctrine to maintain public trust in the validity of reference works. In Nester Map & Guide Corp. v. Hagstrom Map Co., (53) District Judge Nickerson reasoned that

      [t]o treat 'false' facts interspersed among actual facts and represented as actual facts as fiction would mean that no one could ever reproduce or copy actual facts without risk of reproducing a false fact and thereby violating a copyright. If such were the law, information could never be reproduced or widely disseminated. (54) The Factual Estoppel Doctrine, however, has had an uneven application. Some courts appear to add a prerequisite of a defendant's reasonable reliance in order to apply the doctrine. (55) In Mosley v. Follett, (56) the Southern District of New York ruled that the defendant had reasonably relied on the plaintiff's book being factual to produce his own novel. (57) The court cited representations that the plaintiff had made within his work such as the book jacket reading that the book was '"a true, unbelievably exciting spy story ...' '[A] fascinating story that is fact, but that reads with the pace and suspense of the best fiction."' (58) Finding that this and other representations made the defendant's reliance reasonable, the court applied the Factual Estoppel...