Articles and Publications
The Da Vinci Code Case
01/Apr/2007
With an international bestseller at its heart, it’s no surprise that the Da Vinci Code case attracted an unprecedented level of press attention and public interest for what was essentially a claim for breach of copyright. The High Court case has now concluded, with the Judge dismissing the claim for infringement, but on what legal grounds was this decision reached?
The facts of the case can be summarised as follows: a claim was brought by the authors of The Holy Blood and the Holy Grail, a ‘non-fictional’ book originally published in 1982. Their claim was against Random House, publisher of the aforementioned book and also Dan Brown’s The Da Vinci Code, for breach of copyright under the Copyright Designs and Patents Act (CDPA) 1988. The Claimants alleged that Brown’s novel infringed the copyright subsisting in The Holy Blood And The Holy Grail by copying its "central theme".
Under the CDPA, copyright subsists in an original literary work, such as a novel, and it will normally vest in the author of the work for the life of the author plus 70 years. Copyright protects against the copying of such a work, either in its entirety or a substantial part of it, without the consent of the copyright owner and this is what most people think of when they hear the word. However, in this case that is not what the Claimants, Richard Leigh and Michael Baigent, were alleging. Instead, they claimed that whilst the text itself had not necessarily been copied, there was still copying of a substantial part of the work so as to produce an altered copy.
Because there is no copyright in an idea, the legal basis of the Claimants’ case was that there had been a non-textual infringement of the way their idea was expressed. This expression was described as the "architecture" or "structure" of the work that is The Holy Blood and the Holy Grail and it was their claim that a substantial part of this structure – the central theme – had been copied without their consent, thus amounting to a breach of copyright.
Dan Brown, who appeared as a witness for the Defence, denied copying The Holy Blood and the Holy Grail. Despite admitting to using it as a source in conjunction with several other sources, Brown argued that the synopsis, which contained most of the ideas that the Claimants alleged were taken from their book, had been written before he or his researcher had read the 1982 book. He further argued that the ‘central theme’ was not presented as central in either book and substantial parts were missing from both books.
Ultimately, despite acknowledging that Brown had copied some language from the earlier book, Mr Justice Smith rejected the claim and refused the Claimants permission to appeal. So on what grounds did the court base its judgement?
As the law stands, the function of copyright is not to protect against the borrowing of an idea contained in a work, but rather to protect the actual expression of that idea, in whatever form it may be recorded. Whilst it is necessary to protect the rights of the author, a balance must be struck between that and allowing literary development. In this instance, the case for the Claimants was made all the more difficult by the fact that they had presented their book as a non-fictional work. This enabled the Judge to find that the ‘central theme’ did not exist in The Holy Blood and the Holy Grail but was merely an expression of a number of facts and ideas at a very general level and as such, could not be protected. Further, whilst there was some similarity in language between the two books, it was too general to establish copyright infringement of either a textual or non-textual nature.
In Mr Justice Smith’s own words; "as [Brown] has taken matters at a general and low level of abstraction and he has only taken ideas and facts without any of the architecture, he has done nothing wrong."
The claimants appealed this decision arguing the Judge had erred in his decision that the Respondents novel did not breach copyright subsisting in The Holy Blood and the Holy Grail. The appeal depended on showing that the central theme propounded was a central theme of The Holy Blood and the Holy Grail, sufficient to qualify as a substantial part of the work, albeit as a combination of features obtained by abstraction.
The Court found that the judge had been entitled to reject the Appellants contention that the central theme was a substantial part of the The Holy Blood and the Holy Grail, and it was not necessary for him to provide any further explanation for his conclusion that, whatever elements, if any, were copied from The Holy Blood and the Holy Grail, they did not amount to a substantial part of it. The appeal was dismissed.
If you would like to speak to one of our specialist Media team about any Media matter, please call Lee & Priestley on 0845 129 2300.
The facts of the case can be summarised as follows: a claim was brought by the authors of The Holy Blood and the Holy Grail, a ‘non-fictional’ book originally published in 1982. Their claim was against Random House, publisher of the aforementioned book and also Dan Brown’s The Da Vinci Code, for breach of copyright under the Copyright Designs and Patents Act (CDPA) 1988. The Claimants alleged that Brown’s novel infringed the copyright subsisting in The Holy Blood And The Holy Grail by copying its "central theme".
Under the CDPA, copyright subsists in an original literary work, such as a novel, and it will normally vest in the author of the work for the life of the author plus 70 years. Copyright protects against the copying of such a work, either in its entirety or a substantial part of it, without the consent of the copyright owner and this is what most people think of when they hear the word. However, in this case that is not what the Claimants, Richard Leigh and Michael Baigent, were alleging. Instead, they claimed that whilst the text itself had not necessarily been copied, there was still copying of a substantial part of the work so as to produce an altered copy.
Because there is no copyright in an idea, the legal basis of the Claimants’ case was that there had been a non-textual infringement of the way their idea was expressed. This expression was described as the "architecture" or "structure" of the work that is The Holy Blood and the Holy Grail and it was their claim that a substantial part of this structure – the central theme – had been copied without their consent, thus amounting to a breach of copyright.
Dan Brown, who appeared as a witness for the Defence, denied copying The Holy Blood and the Holy Grail. Despite admitting to using it as a source in conjunction with several other sources, Brown argued that the synopsis, which contained most of the ideas that the Claimants alleged were taken from their book, had been written before he or his researcher had read the 1982 book. He further argued that the ‘central theme’ was not presented as central in either book and substantial parts were missing from both books.
Ultimately, despite acknowledging that Brown had copied some language from the earlier book, Mr Justice Smith rejected the claim and refused the Claimants permission to appeal. So on what grounds did the court base its judgement?
As the law stands, the function of copyright is not to protect against the borrowing of an idea contained in a work, but rather to protect the actual expression of that idea, in whatever form it may be recorded. Whilst it is necessary to protect the rights of the author, a balance must be struck between that and allowing literary development. In this instance, the case for the Claimants was made all the more difficult by the fact that they had presented their book as a non-fictional work. This enabled the Judge to find that the ‘central theme’ did not exist in The Holy Blood and the Holy Grail but was merely an expression of a number of facts and ideas at a very general level and as such, could not be protected. Further, whilst there was some similarity in language between the two books, it was too general to establish copyright infringement of either a textual or non-textual nature.
In Mr Justice Smith’s own words; "as [Brown] has taken matters at a general and low level of abstraction and he has only taken ideas and facts without any of the architecture, he has done nothing wrong."
The claimants appealed this decision arguing the Judge had erred in his decision that the Respondents novel did not breach copyright subsisting in The Holy Blood and the Holy Grail. The appeal depended on showing that the central theme propounded was a central theme of The Holy Blood and the Holy Grail, sufficient to qualify as a substantial part of the work, albeit as a combination of features obtained by abstraction.
The Court found that the judge had been entitled to reject the Appellants contention that the central theme was a substantial part of the The Holy Blood and the Holy Grail, and it was not necessary for him to provide any further explanation for his conclusion that, whatever elements, if any, were copied from The Holy Blood and the Holy Grail, they did not amount to a substantial part of it. The appeal was dismissed.
If you would like to speak to one of our specialist Media team about any Media matter, please call Lee & Priestley on 0845 129 2300.
