TORONTO -
A judge has dismissed a lawsuit alleging that a book about the Black Donnellys violated the copyright of an earlier work purporting to tell the "true story" of the infamous Ontario family.
The bizarre case is believed by everyone involved to be the first example in Canadian legal history of the owner of a work of non-fiction arguing that the piece is actually fictional.
The Black Donnellys were a family in the London, Ont. area who gained notoriety both for their involvement in a violent feud over a local stagecoach line and for the 1880 massacre in which five Donnellys were killed by a mob.
Much of the modern evidence for the Donnellys' lives and deaths is chronicled in The Black Donnellys: The True Story of Canada's Most Barbaric Feud, a 1954 book by Thomas P. Kelley.
The stories told in those pages helped turn the Donnellys from local legends into an enduring part of Canadian folklore, even featuring in two songs by Stompin' Tom Connors.
They've also been retold in other books seeking to explore the family's stories, including Nate Hendley's The Black Donnellys: The Outrageous Tale of Canada's Deadliest Feud, which was first published in 2004.
Kelley's heirs recently took legal action against Handley and his publisher, arguing that he infringed on the copyright of Kelley's book by copying fictional events and "embellishments" from the original, and that even the name "Black Donnellys" was invented by Kelley.
A federal court judge ruled last week that no violation had taken place, as facts cannot be copyrighted in Canada and there is insufficient evidence to prove that Kelley's book is anything other than the "true story" its subtitle claims it to be.
WHO WERE THE BLACK DONNELLYS?
Aside from the books that were involved in this lawsuit, one of the most credible versions of the story of the Black Donnellys is the one told by the Lucan Area Heritage and Donnelly Museum in Lucan Biddulph, Ont., outside London.
By their account, James and Johanna Donnelly settled on a farm in the Lucan area in 1845, shortly after arriving in Canada from their native Ireland. They had seven sons and one daughter.
The family first attracted local attention in 1857, when James killed a man during a fight over a land dispute. He was convicted and sentenced to death, but his punishment was later lessened to seven years in prison.
In the 1870s, some of the Donnelly sons started a stagecoach line running between London and Exeter, Ont. Other families followed suit, and the business battle soon turned violent, with operators burning each other's coaches and stables.
The Donnellys received the bulk of the blame for this violence. Members of the family were charged with countless crimes, found guilty of some and acquitted of others.
Matters came to a head early in the morning of Feb. 4, 1880 – just hours before James was scheduled to go on trial for arson. Well before sunrise, a mob of men burst into the Donnelly homestead in what seemed at first to be an attempt to arrest the family. Five of the Donnellys were killed in the melee that ensued, including James and Johanna.
Although several of the mob's ringleaders were apprehended and two trials were held, nobody was ever convicted of killing any of the Donnellys that night.
THE HISTORY BOOKS
Kelley's heirs argued that they found 45 passages in Hendley's 2004 book detailing events that did not really happen, and were either fully or partially invented by Kelley in his book 50 years earlier, including eight Donnellys' triumph in a fight against 18 townspeople in 1875, and the family's visit to a fortune teller.
In his decision, dated May 27, Federal Court Justice Nicholas McHaffie summed up the heirs' argument as being "that [Kelley's book] is a work of historical fiction or biographical fiction: it tells a fictional tale against the backdrop of real world events and individuals, adding characters, events, and details to enliven the story for the reader."
That, the judge said, doesn't seem to line up with how Kelley presented his account of the Donnellys' story. The introduction to his book states that the facts on the following pages were "gathered from old newspapers, police and court records, as well as other unimpeachable sources and by several trips to the Lucan area." At various points in the book, Kelley explains how he obtained specific pieces of information, and he notes when certain facts he relays are contested by others.
In response to the legal action, Hendley said that Kelley's book was one of many sources that he used in putting his own book together. Kelley's book is listed as a source in the bibliography of Hendley's book.
He asked that the legal action be dismissed, as Canadian law does not allow for facts to be copyrighted, and it was only facts – or at least information presented as factual – that he took from Kelley's book. McHaffie agreed, and dismissed the case.
Kelley's heirs also argued that some of the facts in Kelley's book, such as who testified at which trial, can be disproven via official records. McHaffie said that while that may be true, it does not affect the legal issues at play.
"Mr. Hendley was entitled to consult The Black Donnellys and use the information contained in it in preparation of his work, on the understanding that the information was presented as a version of history, even if there may be other versions of history, and even if Mr. Kelley’s version of history may be less historically accurate than other versions," he wrote in his decision.
As for the "Black Donnellys" name, an expert retained by Kelley's heirs claimed the term never existed until Kelley used it in a magazine article in 1947. Here, too, the judge found it impossible to buy that argument when considering Kelley's own words in his book – where he relayed several pieces of evidence that the name was applied to the family more than 70 years earlier, while they were all still alive.
