By Richard Taylor, DLA Piper, Yorkshire

The Da Vinci Code - and a book token offer

Lawyers and book fans weep - the Da Vinci Code litigation (Michael Baigent and Richard Leigh v Random House Group [2007] EWCA Civ 247) is no more. The Court of Appeal has upheld the first instance decision that The Da Vinci Code (DVC) did not infringe the copyright in an earlier work by the claimants, called The Holy Blood and The Holy Grail (HBHG) (see [2007] Gazette, 13 April, 21).

Arguments revolved around what is sometimes called 'theme' or 'non-textual' copying - that is, the words themselves are not taken from the copyright work, but the theme or string of ideas is. In both of the precedent judgments cited by the Court of Appeal, judgment was found for the copyright holder.

When John Osborne used a historical work called The Reason Why in a film script, sharing its selection of incidents and quotations, the author was granted an interim injunction against him (Harman Pictures NV v Osborne [1967] 1 WLR 723). Mr Justice Goff found 'many similarities of detail' in the film script and 'marked similarity of the choice of incidents... and by the juxtaposition of ideas', for which the defendant had provided no explanation. In Ravenscroft v Herbert [1980] RPC 193, the court found that the defendant's novel copied a substantial part of a non-fiction work, The Spear of Destiny. The novel contained as many as 50 instances of deliberate language copying, as well as copying the same historical characters, historical incidents and interpretation of the significance of historical events.

So, the authors of HBHG had to identify their instances of copying, too. They cited what they called the 'central theme' of both books (if you plan on reading DVC, look away now): a chain of some 15 elements, including that Jesus had a legitimate claim to the throne of Palestine; that he would have been married; that he would have had children; that the 'Holy Grail' consisted of Jesus' bloodline; and that this bloodline had intermarried with that of the royal line of the Franks, and continues to this day.

On the question of some of the allegations, the Court of Appeal upheld the first instance judgment that there had been copying. Eleven of the central theme elements were common to DVC and HBHG. Dan Brown, the author of DVC, had access to HBHG at the time he wrote these parts, and used HBHG. He had based relevant parts of DVC on material in it.

Crucially though, the authors of HBHG failed on two points.

In the first case, the court held that what Mr Brown had taken from HBHG amounted to generalised propositions - at too high a level of abstraction to qualify for copyright protection. The claim lay on the wrong side of the line between ideas and their expression. The court acknowledged that copyright protection can extend to the selection, arrangement and compilation of research material. But protection does not extend to information, facts, ideas, theories and themes, the protection of which might enable claimants to monopolise historical research, knowledge, theories or arguments.

Even worse - and this was the principal objection of the first instance judge - the central theme was held not to be the central theme of HBHG at all. The central theme was a selection of features of HBHG and not a fair reading of the book as a whole. For all that the elements of the central theme were by-products of years of research, they were not 'a substantial part' of HBHG, in the copyright sense.

The Court of Appeal also gave a ticking-off to the first instance judge. This was not (at least not expressly) because the judge famously hid his own code in his judgment, but for delivering a judgment that was difficult to follow. The court offered its own checklist of points for courts to follow in assessing claims of copyright infringement, which practitioners may find useful too:

l What are the similarities between the alleged infringement work and the original copyright work? Unless such similarities exist, there is no arguable case of copying;

l What access did the author of the alleged infringing work have to the original copyright work? Unless there was some evidence from which access can be proved or properly inferred, there will be no causal connection between the two works;

l Did the author of the alleged infringement work make some use in his work of material derived by him from the original work?

l If the defendant contends that no such use was made, what is his explanation for the similarities? Is it coincidence? Were there similar sources? If the latter, how were the sources used by the respective authors?

l If use was made of the original copyright work, did the copying amount, in all the circumstances, to 'a substantial part' of the original work? What circumstances or factors justify evaluating the part copied as 'a substantial part' of the original copyright work?

You may be feeling empty at the conclusion of this litigation, so in the spirit of DVC (and the first instance judgment) we have hidden our own code in this article. A book token - to the value of DVC - goes to the first answer out of a hat received before the date of the next issue of the Gazette. Happy hunting!

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