Copyright Issues in Historical Fiction: A Guide for Authors & Screenwriters

Authors and screenwriters working in historical fiction have the opportunity to transform real events into powerful creative works. While historical facts themselves cannot be copyrighted, the way those facts are creatively expressed—through plot, character development, and narrative choices—can be. This article delves into the complexities of copyright law through a landmark case study: a lawsuit involving Steven Spielberg's historical drama Amistad and Barbara Chase-Riboud's novel Echo of Lions. By examining this case, writers can better understand how courts distinguish between protected creative elements and unprotected historical facts, empowering them to draw inspiration from the historical record while respecting legal boundaries when adapting true stories for page or screen.

Historical Fiction and Copyright: Who Owns the Past?

The headline in The Washington Post read: "Judge Refuses to Block Release of Spielberg's Amistad. Plagiarism Suit Against Filmmaker to Proceed." Echoing Dorothy Parker's bon mot that "The only ism Hollywood believes in is plagiarism," bestselling African American novelist, poet, and sculptor Barbara Chase-Riboud claimed that Spielberg's film Amistad infringed the copyright to her novel about a real-life mutiny aboard a slave ship off the coast of Cuba in 1839. Specifically, Chase-Riboud alleged that the DreamWorks' script impermissibly copied "themes, dialogue, characters, relationships, plots, scenes and fictional inventions" from her 1989 historical novel, Echo of Lions.

Although Spielberg's production company had flown Chase-Riboud to Los Angeles in 1988 to discuss optioning rights to her novel, and there existed ample evidence of overlap between ideas and characters in the novel and the film, the court recognized that historical facts and basic character types are not protectable. Since the only common elements between the book and movie related to historical facts and broadly drawn characters, the court determined it was unlikely Ms. Chase-Riboud's claim would succeed at trial. Consequently, her motion for summary judgment -- which would have assured a quick resolution of her claim -- was denied.

Because copyright does not protect ideas and facts or material traceable to timeless themes, copying alone is not enough to prove copyright infringement. To prove copyright infringement, a copyright owner must prove that the infringer copied protected material. When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas and historical facts) and compare the copyrightable elements in the works. Unfortunately, as this case illustrates, there is no simple test to distinguish unprotected ideas from protected expression.

"Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement."

Understanding Substantial Similarity in Copyright Law

Under copyright law, only an author's particular expression of an idea, not the idea itself, is protectable. Prior copyright infringement lawsuits against writers have held that basic plots, stock settings, and stereotypical characters (e.g., prostitutes with hearts of gold, sympathetic mob bosses, corrupt cops, Nazi zombies) are not protected by copyright. These literary devices -- which are part of every novelist's and screenwriter's toolkit -- belong to a common pool of literary techniques analogous to unprotected ideas.

In a copyright infringement case, the plaintiff must prove that the defendant actually copied its work and that the copying was "substantial" enough to constitute an unlawful taking of the plaintiff's work. Unlawful copying exists when there is not only substantial similarity between two works but also substantial similarity between protectable elements.

In the Amistad case, since DreamWorks did not dispute having access to Chase-Riboud's book, the only issue for the court to decide was whether substantial similarity of expression between the two works existed.

While copyright is important, a work may be protected under other legal theories. For example, under the law of idea misappropriation—which varies from state to state—if you submit a story idea to someone and the idea is used, provided there was a prior understanding you would be paid for your idea, an enforceable contract may exist. 

Walking the Line Between Inspiration and Infringement

In finding DreamWorks did not violate Chase-Riboud's copyright, the court looked at the "total concept and feel" of the two works -- the standard test for assessing the substantial similarity of expressive elements between a film and a book. The "total concept and feel" analysis looks at similarities of plot, mood, text, setting, sequence of events, and characterizations from the vantage point of the average lay observer.

Because the plot, setting, and general sequence of events of the two works were -- in the court's opinion -- dictated by the historical record, the court determined that the plaintiff could not sustain her burden of proof on these factors alone. As a general rule, historical works, including historical novels that track real events closely, receive less protection than fictional works or works loosely based on real events. Moreover, the court noted that the mood and pace of Echo of Lions, which contains a poignant love story, was much different from Amistad, whose mood and flow were dictated solely by historical events.

Since Chase-Riboud also relied on certain specific examples of substantial similarity to support her claim, those examples, too, were analyzed by the court. But none of those basic resemblance, or common themes, were enough. Interestingly, neither the court nor Chase-Riboud cited specific instances of dialogue appropriation.

Looking at certain specific claims, Chase-Riboud claimed that a fictional Black abolitionist named Henry Braithwaite overlapped with Amistad's Theodore Joadson. While both fictional characters are depicted as wealthy, erudite  Black abolitionists residing in New Haven, according to the court, they share little else in common. For example, Amistad's Joadson was a runaway slave, whereas Braithwaite came from a land-owning family that arrived in America in the mid-1600s. Unlike Chase-Riboud's character, Joadson had a critical role in the African's defense, including interviewing attorneys and urging John Quincy Adams to represent them at trial.

While noting that well-developed characters—especially visually depicted ones—are eligible for copyright protection, the court held that since the idea of a Black abolitionist appearing in both works was predictable and only superficial similarities existed between Braithwaite and Joadson, no reasonable juror would find the characters substantially similar from a copyright point of view.

Similarly, Chase-Riboud claimed that DreamWorks stole certain ideas and plot devices -- not supported by the historical record -- relating to a historical character named Cinque, who was featured in both works. However, the court held that Chase-Riboud's portrait of the slave Cinque, which included a relationship with John Quincy Adams, was not the stuff that infringements are made of. While "both" Cinque's shared certain similarities, the court held that Chase-Riboud's character was not sufficiently distinctive to enjoy copyright protection. Moreover, since both works "expressed" Cinque differently, the court held that there was no substantial similarity. Moving beyond the characterizations, the court found that other specific claims of similarity, including common endings tied to the Civil War and the destruction of a slave colony with the rendering of the Supreme Court decision freeing the slaves, were sufficiently different to defeat Chase-Riboud's claims.

Case Settled

Hinting at a financial settlement, The Los Angeles Times reported on February 10, 1998, that Chase-Riboud had released the following statement: “After my lawyers had a chance to review DreamWorks’ files and other documents and evidence, my lawyers and I concluded that neither Steven Spielberg nor DreamWorks did anything improper, and I instructed my lawyers to conclude this matter in a timely and amicable fashion. I think Amistad is a splendid piece of work, and I applaud Mr. Spielberg for having the courage to make it.”

The Takeaway

Not all similarities amount to copyright infringement. Regarding copyright protection for historical works, an author's exclusive rights are confined to how their ideas and facts are selected, organized, and presented. In determining similar cases, courts will continue to evaluate plots, moods, scenes, sequences, events, and characterizations to determine whether the defendant has captured the "total look and feel" of the plaintiff's work. As seen in the Amistad case, courts will also review differences, as well as similarities, between the two works when making infringement decisions.

If you are a writer and have questions about copyright infringement, fair use, how to protect a book title or defamation law, contact me for a consultation. 

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DISCLAIMER: This article is protected by copyright and may only be reproduced in its entirety for personal or educational purposes. Any editing, alteration, or modification is strictly prohibited without the author's permission. The content of this article addresses general legal issues and is not intended to provide specific legal advice for any individual situation. It is recommended to seek professional legal counsel before relying on any information contained herein.

Lloyd J. Jassin is a book publishing attorney and a former publishing executive. He co-authored The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons). Throughout his career, he has been a vocal advocate for creators' rights, offering extensive writings and insights on contract negotiation, copyright, trademark, and defamation law. He is a sought-after speaker, regularly lecturing on legal matters that impact content creators and media professionals. His legal practice is committed to helping clients navigate the ever-evolving landscape of publishing and entertainment law, ensuring their intellectual property is protected and their creative visions are realized.

Contact: email: jassin@copylaw.com |  phone: (212) 354-4442 | address: Law Offices of Lloyd J. Jassin, 104 West 40th Street, FL 5, New York, NY 10018 & Madison, New Jersey.

(c) 1999 - 2025. Lloyd J. Jassin.  An earlier version of this article was first published in Creative Screenwriting Magazine.

Tips for Negotiating a Book Contract

Asking an Attorney to Review a Book Contract

Book Contract Checklist of Deal Terms

When negotiating a book publishing contract, it’s crucial to ensure that the terms are specifically tailored to meet each author's unique needs and long-term goals. For example, if you're a subject matter expert or entrepreneur, your book can be a powerful tool to elevate your brand identity, build trust, and enhance credibility in your field. In this case, key contract considerations include securing approval over the title and cover design to align with your brand image, negotiating favorable terms for bulk book purchases, and setting a firm publication date that capitalizes on cross-promotional opportunities tied to your business or marketing strategy. These elements are vital for maximizing your book’s value in reinforcing and growing your brand.

On the other hand, romantasy authors (or other fiction authors) who have a long-term vision for their characters and the fantasy world they're building, will have different contract priorities. Retaining ownership of their characters, securing trademark rights for the series title, and maintaining exclusive rights to publish sequels and prequels are essential for protecting their rights.  Additionally, negotiating favorable advances, royalty rates, and controlling subsidiary rights (such as film, television, and  merchandise rights) forms the foundation of a solid publishing contract.

While legal terms in publishing contracts share a common language, a publishing attorney, or competent literary agent, can spot abnormalities or points that have been omitted to the detriment of the author. Unlike the film and television industries, the grant of rights is (and should be) narrow. In exchange for an advance against royalties, the publisher receives the basic right to print and publish your manuscript in book, eBook, and, more often than not, audiobook form for the entire term of copyright. Be wary if the grant of rights includes film, television, theater, and merchandise licensing rights. Typically, these rights are not granted to the publisher.

Given that copyright protection extends for seventy years beyond an author's passing, the long-term implications of contract terms become particularly significant. You might wonder, what could possibly go wrong over such an extended period? The answer: quite a lot.  Without a properly negotiated book contract, potential pitfalls include:

• no reversion of rights if the publisher fails to pay royalties or goes out of business
• inability to recover rights when books go out of print or have minimal sales
• inability to reclaim unexploited audiobook or foreign translation rights 
• no voice in legal settlements of infringement, defamation, and other claims
• restrictive non-compete clauses
• option clauses that trap authors in unfavorable deals, often mistaken for guaranteed multi-book deals.

Publishers are generally most open to accommodating requests for contract adjustments during the initial stages of the relationship, often referred to as the "romance" phase. Later is too late. Unless a book publishing contract allows an author to terminate for cause if the relationship goes awry, or rights are granted on a "use it or lose it" basis, the author is caught between bad and worse options - asking a court to rescind the contract (rescission is seldom granted) or waiting 35 years to exercise their right of termination under the Copyright Act. 

A Book Contract Should Not be Entered into Hastily

The primary purpose of a book contract is to detail the rights, delivery and acceptance conditions, payment terms, and remedies for breach of contract. For example, rather than relying on a lawsuit to get back rights, if a publisher fails to publish within a contractually agreed time limit, there should be a mechanism that permits an author to regain their rights. Similarly, if a publisher fails to exploit specific subsidiary rights (e.g., audiobook or foreign translation) within a reasonable time, it should trigger a reversion of those rights. In addition to reclaiming or recapturing rights, an author should reserve, or hold for their own use, film, television, live stage, podcast, and merchandise licensing rights. If a book publisher claims these rights, they deviate from industry norms. 

What to Expect When Expecting a Book Contract

Preceding the actual book contract is the term sheet. The term sheet contains the main deal terms. To decode a term sheet some authors turn to literary agents, who will receive a 15% commission on everything from books to audiobooks to film deals. Others retain flat or hourly fee book contract attorneys to help them negotiate royalty rates, the grant of rights, and, later, decipher the legal provisions found in the actual publishing contract.  

Initially, a publishing attorney will review the deal terms and make recommendations to their client. The initial task is to determine if the deal terms measure up to industry standards. We do this by comparing the terms to similar terms offered by similarly situated publishers for comparable books. After both parties agree to the deal terms, the publisher will prepare a contract incorporating those terms, plus the publisher's stock provisions. Like agents, attorneys are buffers that save you from dealing with the minutia of contract negotiation. They will help the client think through the offer and its possible ramifications and advise them on what is negotiable and what is not. An author's attorney can argue for the exclusion of certain items or rights from the proposed contract and the inclusion of others, such as naming the author as an additional insured on the publisher's media perils policy. 

It’s no surprise that book publishing contracts, drafted by the publisher's lawyer, are rife with double dips and legal loopholes that favor the publisher. When it comes to royalties, they often create a hall of mirrors where what is stated and what it actually means can be two very different things. The Big Five New York publishers offer royalties based on the suggested retail price. Royalties for trade paperback books range from 7% - 7.5% of the list price on average. Typically, established publishers offer 10% of the list price for the first 5,000 hardcover copies sold, 12.5% on the next 5,000 sold, and 15% thereafter. Many smaller publishers base their royalty on the "net amount received," which may be 40% to 50% less than the retail price.  The standard eBook royalty rate offered by established publishers, and many independents, is 25% of the net.

Is Your Book Contract Signable?

When presented with the contract, you will want to modify specific terms.  In the case of a subject matter expert, business owner, or series author, you want title approval. Yet most stock contracts state the publisher decides the book's title.  Contract clauses are malleable, not words set in stone. A good publishing attorney - or agent- knows the contract managers at the major publishing houses. Logical arguments supporting rational positions and knowledge of industry practice are the underpinnings of most book contract negotiations.

Whether one of the big five New York publishing houses or one outside of the insular world of New York publishing, a well-drafted publishing contract can anticipate potential issues, reduce disputes, improve financial return, and save thousands of dollars in legal fees later on. 

Benefits of Reviewing a Signed Agreement with a Publishing Lawyer

For those who have already signed a publishing agreement, a publishing attorney or literary lawyer can help you understand the deal's limitations and determine if those limitations are enforceable. For example, a publishing attorney can advise whether a next book option is enforceable or simply an unenforceable agreement to agree. For example, a common concern is whether a non-compete clause can prevent an author from writing a new book on a related topic. Similarly, a publishing attorney can advise on termination for cause options or termination as a matter of right under the Copyright Act.  

Tip. If chomping at the bit to sign a contract but cannot afford to hire a lawyer, visit Victoria Strauss' Writer Beware blog - a beacon of light in the "shadow-world of literary scams, schemes, and pitfalls." Writer Beware doesn't offer legal advice, but it does a stellar job exposing and raising awareness of questionable business practices in the world of books and authors.     

Book Publishing Contract Checklist

Below are matters to consider when you draft or negotiate your next publishing agreement. Each key point deserves greater attention than given here (and will be the subject of future blog posts). While not all clauses are equally important (or negotiable), a well-drafted contract will cover all or most of the points outlined below.

I.   General Provisions
      1. Name/address of parties
      2. Description of work (synopsis)
          -Tentative title, # of words, illos, intended audience, fiction, non-fiction, etc.

II.  Grant of Rights and Territory
      1. Is it an assignment of "all rights" or a license agreement?
      2. Duration (term of years or life of the copyright?)
      3. Geographic scope
           a)     The world?
           b)     Limited (e.g., the U.S., its possessions, and Canada)
      4. Exclusive rights granted
           a)     Primary rights
                  -Hardcover
                  -Trade paperback
                  -Mass market
           b)     Secondary (subsidiary rights)
                   -First serial (pre-pub excerpts)
                   -Second serial (post-pub excepts)
                  -Reprint rights
                  -Dramatic rights
                  -Film/TV rights
                  -Audiobooks    

                  -Foreign translation

                  -British Commonwealth rights

II.   Manuscript Delivery
      1. Delivery requirements
          a) When due? Is the date realistic? Time is of the essence?
          b) What format? 
          c) What to deliver?
                -Rights cleared photos, illos, charts?  Illos? Charts? 
                -Permission & Release

      2. Manuscript Acceptance

          a) Satisfactory in "form and content" or at "sole discretion" of                      the publisher? 
          b) Termination for unsatisfactory manuscript
          c) Termination for changed market conditions
          d) How is the notice of acceptance or dissatisfaction given
          e) Good faith duty to edit
          f) Return of the author's advance
                 -First proceeds clause
                 -False first proceeds clause

III. Copyright Ownership
      1. In whose name will the work be registered?
      2. Who will register the work with the Copyright Office? 
      3. Is there a signed collaboration or ghostwriter agreement? 
      4. The scope of permissions should parallel rights granted publisher
      5. Reserved rights (i.e., rights retained by the author)

IV. Author’s Representations & Warranties
      1. Author sole creator
      2. Not previously published; not in the public domain
      3. Does not infringe any copyrights
      4. Does not invade the right of privacy or publicity
      5. Not libelous or obscene
      6. No errors or omissions in any recipe, formula, or instructions
      7. Limited only to material delivered by the Author

V. Indemnity & Insurance Provisions
      1. Author indemnifies the publisher
      2. Does indemnity apply to claims and breaches?
      3. Can the publisher withhold legal expenses? If so, for how long?   
      4. Has the author been added as an additional insured to media perils policy?
      5. Does the author have approval over the settlement of claims?  

VI. Publication
      1. Duty to Publish within [insert number] months
          a) Force majeure (acts of god)
                 - Any cap on delays?
      2. Advertising and promotion
      3. Right to use author's approved name and likeness
      4. Advance Readers Copies - MUST be sent 3-4 months before pub date
      5. Style or manner of publication
          a) Book Title - Right of consultation or approval?
          b) Book jacket - Right of consultation? Approval?
          c) Changes in manuscript
      6. Initial publication by a specific imprint in a particular format? 

V. Money Issues
      1. Advance against future royalties
      2. When payable? (in halves, thirds, etc.)
      3. Royalties and subsidiary rights:
          a) Primary rights
                 -Hardcover royalties
                 -Trade paperback royalties
                 -Mass market royalties
                 -Ebook royalties
                 -Royalty escalation(s)
                 -Bestseller bonus
                 -Royalty reductions
                  1) deep discount and special sales
                  2) mail order sales
                  3) premium sales
                  4) small printing
                  5) slow moving inventory

          b) Secondary (subsidiary) rights royalty splits
                 -Book club (sales from publisher’s inventory v. licensing rights)
                 -Serialization (first serial, second serial)
                 -Anthologies, selection rights
                 -Large print editions
                 -Hardcover
                 -Trade paperback
                 -Mass market
                 -Foreign translation
                 -British Commonwealth
                 -Future technology rights
.                -Database rights 
                 -Audio rights
                 -Motion picture/TV
                 -Merchandising

      4. Reasonable reserve for returns
          a) What percentage will be withheld?
          b) When liquidated?

      5. What is royalty based on? (retail price? wholesale price? net price?)
          a) At average discount of 50%, 20% of net is same as 10% of list
          b) At average discount of 40%, 16-2/3% of net is same as 10% of list
          c) At average discount of 20%, 12-1/2% of net is the same as 10% of list
      6. Recoupment of advances

VI. Accounting Statements
      1. Annual, semiannual, or quarterly statements
      2. Payment dates
      3. Can the publisher recoup an outstanding advance from the next book?
      4. Does the contract afford author audit rights? 
      5. Limit on time to object to statements
      6. Limit on time to bring legal action
      7. Can you hire a forensic accountant to review books on a contingency basis?
      8. Pass through clause for subsidiary rights income
      9. If the publisher fails to account, can you terminate the contract? 

VII. Revised Editions
      1. Frequency
      2. By whom?
      3. Can they reduce your royalty if you don't participate in a revision? 
      4. Sale of a revised edition treated as the sale of a new book?
      5. Reviser credit (May the original author remove their name?)

VIII. Option
      1. Definition of next work
      2. When does the option period start?
      3. Definiteness of terms (i.e., is the option legally enforceable?)
      4. What type of option? (e.g., first look, matching, topping?)

IX. Competing Works & Morality Clauses
      1. How is competing work defined?
      2. How long does the non-compete run?
      3. Are there adequate exclusions from what constitutes a competing work?

X. Out-of-Print
      1. How defined?
      2. Notice requirements
      3. Author's right to purchase plates, film, inventory

XI. Termination
      1. What triggers the reversion of rights?
          a) Failure to publish within 12 (or 18) months of manuscript acceptance
          b) Failure to account to the author after due notice
          c) Failure to keep the book in print (see Section X)
      2. Survival of Author's representations and warranties
      3. Licenses granted before termination survive?

       TIP. Pay attention to what triggers the duty to return the advance?  

XII. Miscellaneous
      1. Choice of governing law
      2. Mediation / Arbitration clauses
      3. Bankruptcy
      4. Modification
      5. Literary agent clause 

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Illustration: from Lawton Mackall's Bizarre 

Illustrator: Lauren Stout

Date: 1922

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Libel in Fiction

Fair Use in a Nutshell 

Twelve Copyright Permission Myths  

Estate Planning for Authors 

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