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• The 'Da Vinci Code' Case - Part II: Not copied

Introduction

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 was last year 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 substantially copied 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 judge, Mr Justice Peter Smith, gave judgment in favour of the defendant. 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 claimants thus appealed to the Court of Appeal.

The Decision of the Court of Appeal

Unexpectedly, the Court of Appeal upheld the first instance decision of Mr Justice Peter Smith and gave judgement in favour of the Defendant.

The Court of Appeal rejected the claimants' case that DVC incorporated a substantial part of HBHG. At best, what could be said to have been copied were an assortment of historical facts, ideas and theories which the claimants had included in HBHG and which they had arrived at after conducting historical research and consulting historical and biographical materials. However, as the Court of Appeal made clear, copyright does not subsist in ideas per se; it only protects the way those ideas are expressed and not the ideas themselves: "Originality... tends to lie in the detail with which the basic idea is presented".

The Court of Appeal agreed with the trial judge that Dan Brown, when writing DVC, had not copied any incidents of language from the claimants work. Replicating or using assorted items of historical fact and information and ideas, theories, arguments and propositions derived from HBHG did not constitute copyright infringement. The Court was not prepared to give the claimants a monopoly in the same, such that they would be able to "monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed or general hypotheses suggested (whether they are sound or not) or general themes written about". A line had to be drawn between the legitimate use of ideas expressed and the unlawful copying of their expression. In this case, DVC fell the right side of the line and thus there had not been unlawful copying of the expression of the claimants' ideas as set out in HBHG.

The future

The case has, once again, highlighted the difficulty of succeeding with a claim for non-textual copyright infringement and reminds us that such cases are unlikely to succeed, except in very limited factual scenarios.

As Carl Steele explains: "The Court of Appeal have once again reaffirmed the well established principle that copyright does not subsist in ideas per se; it only protects the way in which those ideas are expressed. In each case, a judgment has to be reached by analysing the facts of that particular case. Whilst Dan Brown admitted to using the claimants work as a source for some of the ideas that he later incorporated within his novel, he expressed those ideas in his own way and, as the Court of Appeal said, he did not make 'illegitimate use of the fruits of someone else's literary labours'".

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.