The truth behind 'The Da Vinci Code': Original or Copied?
Introduction
The long awaited judgment in the case of Michael Baigent and Richard Leigh v The Random House Group Ltd (2006) has finally been handed down.
Background
This case captured the public interest because it concerned a copyright dispute concerning the now infamous novel 'The Da Vinci Code' ("DVC"), written by Dan Brown and published by Random House. This novel has been a worldwide publishing success and has recently been made into a major Hollywood movie.
As Carl Steele, a solicitor at Ashfords who specialises in copyright law explains: "The case also captured the interest of those lawyers who specialise in copyright law. This was because practitioners feared that if judgement was given in favour of the claimants the implications and legal ramifications for other novelists could be far ranging."
The claimants' alleged that the central theme of the novel (namely, that, in summary, the Holy Grail was a person, Mary Magdalene, who had given rise to a continuous bloodline of David deriving from a relationship with Christ - the "Central Theme") was copied from an earlier work of non-fiction (or, as the claimants' described it, a work of 'historical conjecture') they had produced, called 'The Holy Blood and The Holy Grail' ("HBHG").
The claimants' asserted that the Central Theme of HBHG could be broken down into 15 points, which together formed the 'architecture' of the Central Theme, and that these points and this architecture had been copied in the novel. They did not assert that the novel copied any of the text from their earlier work, but that by taking the architecture of the Central Theme there was non-textual infringement of the earlier literary work written by the claimants.
The law
As Carl Steele explains: "Copyright does not protect ideas, only the form and expression of those ideas. Further, in order to infringe copyright in a work, you need to copy either directly or indirectly the whole or a substantial part of the copyright in a work."
The claimants' case was based on an allegation that the novel incorporated a substantial part of the architecture of the Central Theme. They accepted that the ideas and facts that they had asserted in HBHG concerning the Central Theme of the book could not be owned by them; only that they could prevent others from copying a substantial part of the 'architecture or structure or way' in which they had presented those ideas and facts in their book.
The merits of the case
Literary and artistic works (e.g. books, music and films) are very rarely truly 'novel', in the sense that most authors, composers and directors would admit to having been inspired by someone else's work in order to produce their own later work. In particular, many fictional novels are based on, or are inspired by, facts that the author of the novel has learned by reading, consulting and researching non-fictional historical records of fact.
The author of the novel, Dan Brown, did not deny that he had used HBHG to aid his research. Furthermore, the judge stated that comparison of the language of both books did show some limited copying of the text. However, the judge stated that "Such copying cannot amount to substantial copying of the text of HBHG and the claimants have never said it does".
With regard to the key allegation that the 'architecture' and 'expression' of the Central Theme had been copied, the judge felt that, even if there was a Central Theme (which he doubted), it was 'merely an expression of a number of facts and ideas at a very general level' and the Central Theme as expressed was 'not such as to justify being protected against copying'. Mr Brown was 'perfectly entitled to copy these themes'. The claimants were trying to find 'an architectural structure to protect something which is otherwise not protectable'. As the judge said;
"When a book is put forward as being a non fictional book and contains a large number of facts and ideas it is always going to be a difficult exercise in trying to protect against copying of those facts and ideas because as such they cannot be protected. It is the effort and time that has gone into the way in which those ideas and facts are presented that is capable of protection."
The judge recognised that had he come to the conclusion that there had been copyright infringement, the floodgates would potentially have been opened for a staggering number of claims for thefts of mere ideas.
The decision
The judge, Mr Justice Peter Smith, gave judgment in favour of the defendant.
The judge was not prepared to redefine or extend the existing boundaries of the law of copyright. Instead, he came to the conclusion that most practitioners expected: that The Da Vinci Code does not infringe the copyright in The Holy Blood and the Holy Grail.
The future
The costs of bringing such a high profile claim to Court would have been extremely high. Now that the claimants have lost they will face paying both their own and Random House's no doubt very substantial legal bills, subject to any successful appeal.
The claimants have indicated that they may try and appeal the decision and we will have to wait and see how things progress.
Some cynics have said that the case has proved to be a 'win-win' situation for both sides, given that the sales of both books have increased significantly since the litigation commenced. The fact that Random House, the well-known publishing house defending the claim, is also the publisher of HBHG only encourages such conjecture.
Nevertheless, the case has yet again highlighted the difficulty of succeeding with a claim for non-textual copyright infringement and has reminded everyone that such cases are not likely to succeed except in very limited factual scenarios.
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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