Ken Jennings


June 21, 2006

Here we go: in the spirit of great Seinfeld two-parters like “The Boyfriend” and “The Pilot,” the continuation of yesterday’s post. Don’t worry, Castle Rock lawyers. I won’t ask any trivia questions.

The District Court ruling, which held up on appeal, went in favor of Castle Rock. The Carol Publishing Group was ordered to stop selling The Seinfeld Aptitude Test, and to pay Castle Rock over $400,000 in damages. And since 1998, I haven’t noticed too many of these “unofficial quiz books” in stores anymore.
Even if you’re not a lawyer (note: I am not a lawyer), the decision is pretty interesting reading if you enjoy trivia. Here’s a rundown of some of the highlights.

  1. The court giggles that, even though Seinfeld is ostensibly a “show about nothing,” their opinion here is not “about nothing” at all, but is in fact a “difficult and interesting” copyright decision! Oh, tell another, U.S. District Court for the Southern District of New York!
  2. One of the most-cited precedents in the decision is Twin Peaks Productions Inc. v. Publications Int’l, Ltd., in which the courts found that an unofficial Twin Peaks episode guide infringed on copyright, largely because the authors quoted 89 lines of dialogue (30 of which were probably, “That’s a damn fine cup of coffee!”) from the quirky ABC drama. My childhood bookshelves were also lined with dozens of unofficial episode guides like these, so I’m sort of shocked to see, in hindsight, that they were all in clear violation of copyright.
  3. One precedent which, the court finds, doesn’t hold here is Worth v. Selchow & Righter, which I discuss in Brainiac. In Worth, Trivial Pursuit was cleared of wrongdoing even though they admitted to lifting perhaps a third of the questions in the first Genus edition of the game from Fred Worth’s 1970s bestseller The Trivia Encyclopedia. But Trivial Pursuit had only borrowed facts, said the court, and turned them into trivia questions. The Trivia Encyclopedia couldn’t claim a copyright on facts. But in Castle Rock, Judge Sonia Sotomayor rules that the kind of facts that Beth B. Golub had lifted were protected by law. Here’s the money quote from the opinion: “The facts depicted in a Seinfeld episode, however, are quite unlike the facts depicted in a biography, historical text, or compilation. Seinfeld is fiction; both the ‘facts’ in the various Seinfeld episodes, and the expression of those facts, are plaintiffs creation.” In other words, Seinfeld doesn’t own a fact like “Jason Alexander portrays George Costanza on Seinfeld.” But it can claim to own a fact like “If George were a porn star, he would call himself ‘Buck Naked,'” which can more easily be called the “creative expression” of a writer. I have some qualms with the overall ruling here, but I’m sympathetic to this particular argument. Most of the appeal in a trivia question about George’s porn-star name is not in how artfully the trivia writer framed the question, invented the wrong multiple-choice options, etc. It’s the laugh the reader gets from remembering the episode in which the joke was first made. If the writer is still getting the laugh without getting a royalty, maybe there is an argument for infringement.
  4. With the prima facie case for infringement made, the court looks at Golub’s argument that her book represents “fair use” of Seinfeld‘s copyrighted jokes and plot points. Thankfully, the court does at least find that The Seinfeld Aptitude Test is a “transformative work,” meaning that it goes beyond the original Seinfeld episodes by providing a new character or purpose to the original expression. It’s easy to overlook the fact that writing trivia is hard work, requiring skill and even art, and goes way beyond the random transcribing of sitcom dialogue, but the court recognizes that Golub has added her own creative expression to the original material. Even more interestingly, the court muses philosophically that, in today’s TV culture, the wall between fictional plot points and real-world fact is fast breaking down. People–particularly trivia fans–don’t perceive a difference anymore between knowing that Rocky Balboa’s turtles were named Cuff and Link, and knowing that American Idol Taylor Hicks (a “real person,” whatever that means) has two goldfish named Lamont and Ray. Of course, if the court really agreed with that statement, they might have ruled differently on the prima facie case in 3, above.
  5. Unfortunately, the “transformative” nature of the work is just one prong of the fair use test, and Golub and her publisher don’t do so hot on the other three. First, decisions favor fictional creations (a sitcom teleplay) over nonfictional ones (a trivia book), reasonably enough. I think the next finding, that Golub used a “substantial portion” of Seinfeld content in the book, is a little more iffy, since only 3-5% of the book quotes directly from show dialogue (the decision makes it sound like even the description of plot elements has the same potential for infringement as quoting dialogue, which I don’t really buy on common-sense grounds) but it’s certainly in line with precedent.
  6. The biggie is the final “fair use” test: Does the infringing product affect the potential market for the original work? The judge found that, yes, of course, Golub’s book might hurt the sales of a future Official Seinfeld™ Trivia Book. Golub argued that Castle Rock had been extremely reluctant to market tie-in books, and that, therefore, there really wasn’t much chance of an official Seinfeld trivia book hitting the shelves, ever. The court replies that Castle Rock also has the right to refrain from a certain market as a matter of creative expression, which I thought was pretty persuasive and even admirable.

So I find myself agreeing with much of the specific logic in the decision, even though I don’t like where it ends up: in a world where copyright owners control all trivia that gets written about their creations. So let’s say you’re a trivia writer who wants to produce something like The Seinfeld Aptitude Test, about a corporate property. What, other than paying a license fee, are your options?

  1. Combine. If the 643 Seinfeld questions in Golub’s book had been a single chapter of a larget work (say, The Slightly Overrated 90s Sitcoms Aptitude Test, alongside chapters on Friends, Frasier, and Drew Carey), she probably would have been fine. Plaintiff’s case on the “substantiality” and “potential markets” tests would have been weakened considerably.
  2. Choose a less litigious show. Apparently, by the holding in Twin Peaks, all the unofficial episode guides on my childhood bookshelves were illegal. So why didn’t Star Trek or The Twilight Zone sue? Maybe they’re more friendly toward the fan-community efforts that make that kind of genre show a success. Or maybe, since the shows in question had been off the air for decades, no one was minding the litigation store. So pick a crappy old show for your trivia book. Even if the rights-holder’s estate or corporate descendants or whoever figures out that they still own the license and sue your ass, you can make a stronger argument for fair use on “potential markets” grounds. “Your Honor, no one has approached MTM Productions about the White Shadow book rights in 28 years!”
  3. Argue that Castle Rock v. Carol only applies to Seinfeld. From the decision: “Perhaps more to the point, SAT seizes upon the notion which lies at the very heart of Seinfeld–that there is humor in the mundane, seemingly trivial, aspects of every day life. Indeed, by inviting its readers to recall literally 643 bits of information from various Seinfeld episodes, SAT ‘follow[s] the basic premise of the Seinfeld show by focusing on minutiae in the day-to-day lives of the show’s characters.’ As defendants boasted before the onset of this litigation, SAT succeeds at ‘capturing [Seinfeld‘s] flavor in quiz book fashion.'” In other words: you lost the “substantiality” argument because you wrote a trivia book on a show that’s so trivia-heavy. I’d like to see a lawyer argue that this ruling only holds for shows like Seinfeld, which have no overarching themes and storylines. If you write a trivia book about Seinfeld, a show about trivia, you’ve stolen the Secret Sauce, the whole essence of the show. But let’s take a show possessing great dramatic sweep and prone to broad social statement, like Knight Rider. If you just ask trivia questions about niggly little Knight Rider plot points, and ignore the show’s more important themes (its brilliant examination of the perks and perils of advancing technology as well as the questionable morality of the military-industrial complex, as represented by Knight Industries), maybe you’d be okay.
  4. Confront the “uncopyrightable fact vs. creative expression” issue head on. So, as early as 1998, you have a judge wondering if there really is a difference anymore between the facts about historical persons that you find in encyclopedias and the “facts” about Degrassi high schoolers that you find on The N. Surely, with the rise of reality TV over the last eight years, the time is ripe to put this argument’s money where its mouth is. “Your Honor, we contend that Nash Bridges’ middle name and the color of the couch on According to Jim belong to America now! Information wants to be free!” If I were a fiction writer of any kind, I wouldn’t be crazy about an argument like this. But as a trivia writer? It’s clearly an idea whose time has come.

Wow, that was long and boring. Just what I wanted, to turn this blog into The Volokh Conspiracy during its very first week.

Posted by Ken at 12:34 pm