If an author represents the work as true, he or she can't later say it was made up to carry a copyright lawsuit.
The 9th Circuit is now putting its proverbial foot down by adopting what some have referred to as the doctrine of copyright estoppel and what this panel of judges prefer to call an"asserted truths" doctrine.
Berzon explains:"It would hinder, not 'promote the progress of science and useful arts' to allow a copyright owner to spring an infringement suit on subsequent authors who 'built freely' on a work held out as factual, contending after the completion of the copyrighted work, and against the work's own averments, that the purported truths were actually fictions.
In other words, no backtracking. If an author says it happened, they can't later say it didn't for purpose of maintaining a copyright suit. And it doesn't even matter if the work is published. Rejecting Corbello's arguments, Berzon adds that it's the representations made by a work — not its prior publication — which is essential. Those representations can be made"only to a few actual readers, to future intended readers, or, upon publication, to the general public."DeVito autobiography and finds no copyright infringement because noted elements were held out as facts.
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