Suppose an author puts up a detailed website that purports to tell the story of a historical machine, including digitally altered photographs and a great deal of fake background. The website doesn't clearly present itself as fictional, so that readers are arguably invited to believe that the machine is real. Another author sees the website, doesn't get the joke, and writes a historical novel in which the machine plays a role. Is this copyright infringement?
That's the interesting discussion going on at madisonian.net, sparked by a real-life incident involving a made-up robot called Boilerplate.
I am inclined toward the position that ordinary principles of copyright law are sufficient to handle this situation. But this case does present an intriguing twist on the idea of authorship. Obviously, all artists are, to some extent, in the business of creating mock realities. What makes the case of Boilerplate different is the degree to which the author wishes his fictional creation to be taken for real. It's a sort of shortcut to the willing suspension of disbelief - simply ensure your audience never disbelieves in the first place!
In the comments to the original post, Joe Wilson brings up the example of "mockumentaries," but I'm not sure that's quite the same thing. You'd have to be pretty humorless and literal-minded not to realize that films like A Mighty Wind are designed to be spoofs. But although the story of Boilerplate may have some satiric elements, it doesn't strike me as a spoof, exactly. The site isn't about making fun of historical reality so much as lovingly and painstakingly imitating it. And I don't get the feeling that Paul Guinan, the site's creator, is entirely displeased that some people think Boilerplate is real; strict verisimilitude is part of the artistic effect he's trying to create.
Despite all this, I think it's sufficiently apparent that the Boilerplate site is fanciful that I have little problem treating it as an ordinary fictional work for copyright purposes. But it's not difficult to imagine tougher cases. What about a fictional reality that's passed off as real for purposes that are clearly deceptive rather than artistic? If I unwittingly read a Stephen Glass article, believe it to be true, and write a novel based on the events described in it, am I liable? The commenters at Madisonian suggest a few grounds on which I might not be - for example, the idea that an author who passes off a fictional world as real grants the public an implied license to use it. But to make that sort of distinction, of course, requires potentially tricky judgments about the motives of the author creating the fake world.