It is a Hollywood truism that commercially successful films attract litigation. So do wildly successful works of literary fiction. Why do people sue against successful films and novels? Answer: usually, for a slice of the money.

Among the most successful books of our era is Dan Brown’s The Da Vinci Code. A sequel to the 2006 Hollywood adaptation is in the production line.

Since 2004 The Random House Group Ltd, publisher of The Da Vinci Code in the UK, has had a dark cloud of litigation over its head in courts in England.

In the first court case, the court sat for 11 days hearing legal arguments as to why The Da Vinci Code allegedly breached copyright in The Holy Blood and The Holy Grail. In the US it was re-titled (Holy Blood, Holy Grail). I had a view on that case as soon  as I heard the report that The Holy Blood is a work of non-fiction. More on that later.

Here’s the sequence of events.

"holy_grail"The Holy Grail involved five years of research between 1976 and 1981 leading to its publication in 1982. It was well received.

The Da Vinci Code was Brown’s fourth book. It was published in 2003.

The authors of The Holy Grail first sent a letter of complaint in February 2004 to The Random House. The authors were not satisfied by the response so they decided to take the next step of suing The Random House in October 2006 in England.

By that time The Da Vinci Code had become huge. By May 2006 it had sales of 60.5 million and had been translated into 44 languages. It is in the top 20 list of best selling book of all time, just behind Lord of the Rings, books in the Harry Potter series, and several works of philosophy (eg Quotations of Chairman Mao) or theology (eg The Bible and The Qur’an).

However, the authors who sued Brown’s publisher, The Random House, lost their first court case in 2006. Inadequacies in the way Mr Justice Peter Smith wrote his judgement in [2006] EWHC 719 (Ch) left room for interpretation. That at least contributed to, but may not have caused, more litigation resulting in a four day appeal court hearing in January 2007.

The appeal decision of the Court of Appeal for England and Wales was released in the last 24 hours and is available on BAILII at [2007] EWCA Civ 247.

The plaintiff authors, Michael Baigent and Richard Leigh, lost again. Why? After some personal background information, I want to briefly indicate why they lost twice.

My career in law began with Australia’s oldest book publisher, Angus & Robertson. One of the first articles I wrote in my legal writing career recorded the fruits of my learning about book publishing and copyright. The article is titled How Much Can You Copy?

In the court cases in looking for copying the judges noted nine language similarities between the two books as well as numerous similarities in research sources, themes and the chronological order of events in the tales. Indeed it was openly admitted by Brown and his wife that they used The Holy Grail as research material. Wikipedia says that Brown even used Richard Leigh’s last name for the character Leigh Teabing’s first name, and Michael Baigent’s last name, scrambled, for Leigh Teabing’s last name.

So why did the plaintiff authors lose twice?

Here’s the point. The Holy Blood is a work of nonfiction. The Da Vinci Code is a work of fiction, it’s a novel, a thriller. Among textual works protected by copyright law are:

  • novels, poetry and plays – all typically works of fiction; and
  • reports, memos, and articles – all typically works of nonfiction.

As a general observation, to sue for copyright breach it would have been a lot easier for the plaintiff authors had their 1982 work also been a work of fiction, a novel, a thriller.

A nonfiction work has to rely on a lot less to catch copying of a type that is legally actionable. I said this just as briefly in my 1993 article mentioned above in the following two sentences: “A piece of nonfiction writing is an amalgam of what might be called “elements” including words, ideas, structure and style. With fiction there is also incidents, plot and characterisation.”

On reading yesterday’s English appeal court’s decision I recognised these ideas, which I had recorded in 1993, mirrored in the appeal decision at paragraph 84. Quoting from the lead judgement of Lord Justice Lloyd in the appeal case, His Honour notes that in the appeal the plaintiff authors had to ultimately rely on mere “…elusive and incoherent propositions as regards the “architecture” or “structure” of the Central Theme … [and being] driven to rely on no more than the “natural chronological order” of the 15 elements.” Ohh ohh, sounds like the plaintiff authors are in trouble!

They were, they were toast. The plaintiff authors’ “elusive and incoherent propositions” were toast because they were (to quote Lord Justice Rix at paragraph 105): “…falling on the wrong side of the line (for the purposes of establishing copyright infringement) between ideas and their expression…”.

In other words, and putting it simply, The Da Vinci Code copied some ideas from The Holy Grail but, critically, did not copy the expression of those ideas as exist in The Holy Grail.

The third judge in the appeal court was Lord Justice Mummery. We should all be indebted to him for including in paragraph 124 of his judgement a short and practical methodology to assess if infringement of copyright has taken place.

But wait a minute, His Honour’s methodology and list reminds me of mine at the end of my 1993 article! Both contain six practical points! There’s even similarities in that they both have a similar sequence of copyright law considerations! Did Lord Justice Mummery copy my 1993 work of nonfiction?

Memo to self: turn to writing fiction preferably with religious subject matter, the chances of making money in copyright litigation are greater.

Noric Dilanchian