## Facts

- Jay Robert Nash authored copyrighted books asserting that John Dillinger did not die in 1934, but escaped by using a look-alike, with an alleged FBI cover-up.
- Nash’s works marshaled claimed discrepancies about the corpse and alleged manipulation of evidence (including fingerprints) to support the survival theory.
- CBS produced and aired a *Simon & Simon* episode, “The Dillinger Print,” that incorporated the idea that Dillinger survived and used disputed details surrounding the Biograph Theater shooting.
- The episode used a contemporary detective-story plot involving a retired FBI agent, a murder, and renewed investigation prompted by purportedly fresh Dillinger fingerprints.
- CBS conceded it had access to Nash’s books and used some facts and details found there, but denied copying Nash’s protected expression.
- The district court granted summary judgment for CBS on copyright infringement, concluding any overlap concerned unprotected ideas and historical facts rather than protectable expression.
- Nash appealed, arguing CBS appropriated his “Dillinger Story” as a selection and sequence of facts, inferences, and interpretations.

## Issues

1. Whether use of an author’s historical theory and reconstructed account, without copying the author’s words, can infringe copyright.
2. Whether alleged historical assertions and interpretations are protectable expression or unprotectable facts/ideas.
3. Whether the television episode was substantially similar to Nash’s protectable selection and arrangement of material.

## Decision

- The Seventh Circuit affirmed summary judgment for CBS.
- The court held that the shared elements were historical facts, theories, and ideas, which copyright does not protect.
- The court found no substantial similarity in any protectable aspects of Nash’s works, such as specific expressive choices, narrative wording, or protectable selection and arrangement.
- Because Nash could not show copying of protectable expression, his infringement claim failed as a matter of law.

## Legal Principles

- Copyright protects expression, not facts, ideas, or historical theories, even when the theory is original or controversial.
- Assertions about historical events are treated as facts (or false statements about facts) for copyright purposes and cannot be monopolized through copyright.
- Compilations may receive protection only for original selection and arrangement, not for the underlying facts and ideas compiled.
- Access plus similarity is insufficient unless the similarity is in protectable elements; substantial similarity must be assessed by filtering out unprotected material.
- Summary judgment is appropriate when the plaintiff cannot identify protectable expression copied by the defendant.

## Conclusion

The court held that CBS could dramatize Nash’s Dillinger-survival theory and related historical details because those elements were unprotected facts and ideas, and the episode did not substantially copy Nash’s protectable expression or original selection and arrangement.


Nash v. CBS, Inc., 899 F.2d 1537 (7th Cir. 1990)