The Da Vinci Code - What was it all about really.
The Da Vinci Code - What was it all about really.
The judgment in the Da Vinci Code case, Baigent and Leigh v Random House Group Ltd, has just been handed down : [2006] EWHC 719 (Ch). The case had everything – a New Zealand-born claimant, a high profile best selling thriller (over 40 million copies in its first year), a Hollywood blockbuster starring Tom Hanks, the possibility of vast damages, and a witticism from the judge that would only be understood by readers of the satirical magazine Private Eye, together with another joke in Latin from the judge (don’t give up the day job Mr Justice Smith – jokes in Latin do not have them rolling in the aisles in the working mens’ clubs of North England). In addition, by virtue of various mergers and acquisitions, Random House Group publishes both the Da Vinci Code and the book whose copyright it was alleged to have infringed.
The case provided great legal theatre for the media, but did it contain any law? Perhaps unsurprisingly in a judgment of 51 pages, the answer is yes…but only a little.
Background
The factual background to the case can be summarised briefly. The claimants, Michael Baigent and Richard Leigh (together with a third person, Henry Lincoln, who took no part in the case) wrote a book entitled The Holy Blood and The Holy Grail (HBHG) which was published in 1982. The book was described by the Claimants as ‘historical conjecture’ ie research was undertaken, hypotheses advanced, folklore legends were given weight and literary works studied to give interpretations that would support the hypotheses. Needless to say this technique was criticised by orthodox historians, but from the legal point of view it shows that considerable effort had been put into writing HBHG.
The theme of HBHG was that Jesus was married to Mary Magdalene who bore His child. After the crucifixion Mary fled to France where the bloodline of Mary and Jesus continued until intermarriage with the royal line of the Franks which gave rise to the Merovingian dynasty. An organisation known as the Priory of Sion came into being to protect the Merovingian bloodline, and the book also considers the mystery of Rennes-le-Chateau where a poor parish priest allegedly had access to great wealth. It has since been suggested that both the Rennes mystery and the Priory of Sion are an elaborate hoax, but HBHG represents these matters as credible.
Dan Brown is the author of The Da Vinci Code (DVC) which was published in 2003. DVC certainly covers similar topics to HBHG and Mr Brown and his wife, Blythe Brown, who did most of his research, looked at HBHG before DVC was finished. Also in DVC one character has the surname Sauniere, which was the name of the priest of Rennes, and another character is called Leigh Teabing, which is derived from the names of the authors of HBHG, namely Richard Leigh together with an anagram of Baigent. The Sauniere name, incidentially, is the only part of the Rennes mystery incorporated into DVC.
Legal Aspects
It was the claimants’ case that DVC had breached the copyright subsisting in HBHG.
Following Sawkins v Hyperion Records [2005] 1 WLR 3281, the Court held that a work need only be ‘original in the limited sense that the author originated it by his efforts rather than slavishly copying it from the work produced by the efforts of another person’. Thus HBHG was protected by copyright. However, an immediate problem arises in that much of HBHG is fact or ideas. As was said in Sawkins ‘the
important point is that copyright can be used to prevent copying of a substantial part of the relevant form of expression, but it does not prevent use of the information, thoughts or emotions expressed in the copyright work. It does not prevent another person from coincidentally creating a similar work by his own independent efforts. It is not an intellectual property monopoly in the same sense as a patent or registered design. There is no infringement in the absence of a direct or indirect causal link between the copyright work and the alleged copy.’
By s16(3) of the Copyright, Designs and Patents Act 1988, infringement will only occur if the work or a substantial part of it has been copied. The claimants argued that although a substantial part of the text of HBHG had not been copied, there was copying of a substantial part of the work to produce an altered copy, ie what is usually called non-textual copying. The part of DVC that was copied from HBHG must be a substantial part of HBHG, but it does have to be a substantial part of DVC: see Designers Guild v Russell Williams [2001] FSR 11.
The area of copying ideas is fraught with difficulties. As Laddie J stated in IPC Media v Highbury-pleasure Publishing [2005] FSR 20 (at page 444) ‘It is impossible to define the boundary between the mere taking of general concepts and ideas on the one hand and copying in the copyright sense on the other’. Although there are many cases on non-textual copying, by their very nature the decisions turn on their particular facts. Perhaps the best statement of the law was made long ago in Hogg v Scott (1874) LJ Ch 422 where it was said ‘the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man’s labour or, in other words, his property.’
The Claimants case was that what was copied by DVC was the Central Theme of HBHG. Thus the Claimants had to show
(i) the Central Theme alleged was actually expressed in HBHG
(ii) the Central Theme was capable of protection under the Copyright, Designs and Patents Act 1988
(iii) that DVC not only copied the Central Theme but substantially copied it.
As stated earlier, ideas and facts of themselves cannot be protected, but the architecture or structure or way in which they are presented can be protected. Thus it was not enough for the Claimants to point to ideas or facts that exist in the Central Themes that are to be found in both HBHG and DVC. It had to be shown that the architecture or structure had been substantially copied.
Unfortunately for the claimants the Judge found that the alleged Central Theme did not exist in HGHB, and went on to state that even if there was a Central Theme as alleged by the Claimants it was merely an expression of a number of facts and ideas at a very general level and could not be protected.
The case provides a useful summary of the law on non-textual copying , but does not provide any new insights into this tricky area of the law of copyright.
….. And The US Decision as at 4/24/2006
A Federal appeals court declared that novelist Dan Brown and publisher Random House Inc. are not liable for a copyright infringement claim stemming from Brown’s best selling novel “The Da Vinci Code.”
The 2nd US Circuit Court of Appeals unanimously upheld an earlier NY Federal Court ruling when it agreed with Judge Daniels that Dan Brown's International best seller novel “The Da Vinci Code” did not infringe the copyrights of either of Lewis Purdue’s books “Daughter of God” or “The Da Vinci Legacy”. The Appeals court said it agreed with Ferderal Court’s conclusion that while both novels tell a story based on religious and historical people, places and events, the factual details in each were quite different.
The court ruled that the work is not substantially similar to the Lewis Perdue novels arguing that "any slightly similar elements are on the level of generalized or otherwise unprotectable ideas adding that copyright did not protect an idea, but only the expression of an idea”.
The Da Vinci Code has sold more than 40 million hard back copies and has just recently been put out as a soft book version. The Dan Brown novel lies presently lies 6th in the New York Times Hard Cover list and tops the soft cover listings.
Disclaimer: PIPERS endeavors to be as accurate as possible when preparing its articles and has taken all reasonable steps to ensure that the information contained herein is accurate. The contents of this article are for purposes of information only.
1 The joint author, Ian Cockburn, is WebEditor, Manager Advertising & Marketing at PIPERS - Global, A Patent attorney Firm with Offices in the United Kingdom, New Zealand, Australia, Singapore and Malaysia. The views expressed in this article are those of the author and do not necessarily represent those of www.evancarmichael.com
The Da Vinci Code What was it all about really - To learn more about this author, visit Ian Cockburn's Website.
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THE DA VINCI CODE CASE – LAW OR LAUGHTER IN COURT?
The judgment in the Da Vinci Code case, Baigent and Leigh v Random House Group Ltd, has just been handed down : [2006] EWHC 719 (Ch). The case had everything – a New Zealand-born claimant, a high profile best selling thriller (over 40 million copies in its first year), a Hollywood blockbuster starring Tom Hanks, the possibility of vast damages, and a witticism from the judge that would only be understood by readers of the satirical magazine Private Eye, together with another joke in Latin from the judge (don’t give up the day job Mr Justice Smith – jokes in Latin do not have them rolling in the aisles in the working mens’ clubs of North England). In addition, by virtue of various mergers and acquisitions, Random House Group publishes both the Da Vinci Code and the book whose copyright it was alleged to have infringed.
The case provided great legal theatre for the media, but did it contain any law? Perhaps unsurprisingly in a judgment of 51 pages, the answer is yes…but only a little.
Background
The factual background to the case can be summarised briefly. The claimants, Michael Baigent and Richard Leigh (together with a third person, Henry Lincoln, who took no part in the case) wrote a book entitled The Holy Blood and The Holy Grail (HBHG) which was published in 1982. The book was described by the Claimants as ‘historical conjecture’ ie research was undertaken, hypotheses advanced, folklore legends were given weight and literary works studied to give interpretations that would support the hypotheses. Needless to say this technique was criticised by orthodox historians, but from the legal point of view it shows that considerable effort had been put into writing HBHG.
The theme of HBHG was that Jesus was married to Mary Magdalene who bore His child. After the crucifixion Mary fled to France where the bloodline of Mary and Jesus continued until intermarriage with the royal line of the Franks which gave rise to the Merovingian dynasty. An organisation known as the Priory of Sion came into being to protect the Merovingian bloodline, and the book also considers the mystery of Rennes-le-Chateau where a poor parish priest allegedly had access to great wealth. It has since been suggested that both the Rennes mystery and the Priory of Sion are an elaborate hoax, but HBHG represents these matters as credible.
Dan Brown is the author of The Da Vinci Code (DVC) which was published in 2003. DVC certainly covers similar topics to HBHG and Mr Brown and his wife, Blythe Brown, who did most of his research, looked at HBHG before DVC was finished. Also in DVC one character has the surname Sauniere, which was the name of the priest of Rennes, and another character is called Leigh Teabing, which is derived from the names of the authors of HBHG, namely Richard Leigh together with an anagram of Baigent. The Sauniere name, incidentially, is the only part of the Rennes mystery incorporated into DVC.
Legal Aspects
It was the claimants’ case that DVC had breached the copyright subsisting in HBHG.
Following Sawkins v Hyperion Records [2005] 1 WLR 3281, the Court held that a work need only be ‘original in the limited sense that the author originated it by his efforts rather than slavishly copying it from the work produced by the efforts of another person’. Thus HBHG was protected by copyright. However, an immediate problem arises in that much of HBHG is fact or ideas. As was said in Sawkins ‘the
important point is that copyright can be used to prevent copying of a substantial part of the relevant form of expression, but it does not prevent use of the information, thoughts or emotions expressed in the copyright work. It does not prevent another person from coincidentally creating a similar work by his own independent efforts. It is not an intellectual property monopoly in the same sense as a patent or registered design. There is no infringement in the absence of a direct or indirect causal link between the copyright work and the alleged copy.’
By s16(3) of the Copyright, Designs and Patents Act 1988, infringement will only occur if the work or a substantial part of it has been copied. The claimants argued that although a substantial part of the text of HBHG had not been copied, there was copying of a substantial part of the work to produce an altered copy, ie what is usually called non-textual copying. The part of DVC that was copied from HBHG must be a substantial part of HBHG, but it does have to be a substantial part of DVC: see Designers Guild v Russell Williams [2001] FSR 11.
The area of copying ideas is fraught with difficulties. As Laddie J stated in IPC Media v Highbury-pleasure Publishing [2005] FSR 20 (at page 444) ‘It is impossible to define the boundary between the mere taking of general concepts and ideas on the one hand and copying in the copyright sense on the other’. Although there are many cases on non-textual copying, by their very nature the decisions turn on their particular facts. Perhaps the best statement of the law was made long ago in Hogg v Scott (1874) LJ Ch 422 where it was said ‘the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man’s labour or, in other words, his property.’
The Claimants case was that what was copied by DVC was the Central Theme of HBHG. Thus the Claimants had to show
(i) the Central Theme alleged was actually expressed in HBHG
(ii) the Central Theme was capable of protection under the Copyright, Designs and Patents Act 1988
(iii) that DVC not only copied the Central Theme but substantially copied it.
As stated earlier, ideas and facts of themselves cannot be protected, but the architecture or structure or way in which they are presented can be protected. Thus it was not enough for the Claimants to point to ideas or facts that exist in the Central Themes that are to be found in both HBHG and DVC. It had to be shown that the architecture or structure had been substantially copied.
Unfortunately for the claimants the Judge found that the alleged Central Theme did not exist in HGHB, and went on to state that even if there was a Central Theme as alleged by the Claimants it was merely an expression of a number of facts and ideas at a very general level and could not be protected.
The case provides a useful summary of the law on non-textual copying , but does not provide any new insights into this tricky area of the law of copyright.
….. And The US Decision as at 4/24/2006
A Federal appeals court declared that novelist Dan Brown and publisher Random House Inc. are not liable for a copyright infringement claim stemming from Brown’s best selling novel “The Da Vinci Code.”
The 2nd US Circuit Court of Appeals unanimously upheld an earlier NY Federal Court ruling when it agreed with Judge Daniels that Dan Brown's International best seller novel “The Da Vinci Code” did not infringe the copyrights of either of Lewis Purdue’s books “Daughter of God” or “The Da Vinci Legacy”. The Appeals court said it agreed with Ferderal Court’s conclusion that while both novels tell a story based on religious and historical people, places and events, the factual details in each were quite different.
The court ruled that the work is not substantially similar to the Lewis Perdue novels arguing that "any slightly similar elements are on the level of generalized or otherwise unprotectable ideas adding that copyright did not protect an idea, but only the expression of an idea”.
The Da Vinci Code has sold more than 40 million hard back copies and has just recently been put out as a soft book version. The Dan Brown novel lies presently lies 6th in the New York Times Hard Cover list and tops the soft cover listings.
Disclaimer: PIPERS endeavors to be as accurate as possible when preparing its articles and has taken all reasonable steps to ensure that the information contained herein is accurate. The contents of this article are for purposes of information only.
1 The joint author, Ian Cockburn, is WebEditor, Manager Advertising & Marketing at PIPERS - Global, A Patent attorney Firm with Offices in the United Kingdom, New Zealand, Australia, Singapore and Malaysia. The views expressed in this article are those of the author and do not necessarily represent those of www.evancarmichael.com
The Da Vinci Code What was it all about really - To learn more about this author, visit Ian Cockburn's Website.
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