United States: English Judge Denies Protection to Historical Faction

In a case where two authors sued the publisher of Dan Brown’s bestseller, "The Da Vinci Code" (DVC), and delayed the release of the Hollywood film starring Tom Hanks, the Judge, following established case law, held that the ideas that were copied were too general to be capable of protection. Baigent and Leigh v. Random House Group Limited, Case No. HC04C 03092 (High Court of Justice, Chancery Division Apr. 7, 2006) (P. Smith, J.).

Baigent and Leigh’s book, "The Holy Blood and the Holy Grail" (HBHG), was originally published in 1982. It mixed historical fact with conjecture to give an account of a secret bloodline of Jesus Christ and Mary Magdalene and the church’s campaign over the past two millennia to protect it. A large part of their conjecture had already been available in the public domain, but they also added some new original theories.

Mr. Brown acknowledged the influence of the ideas in HBHG, not least through the celebrated use of an anagram of the Claimants’ names ("Leigh Teabing") for a character. However, the Claimants’ case turned on how they precisely identified the material alleged to have been taken, resulting in the "Central Theme": 15 key chronological points.

The Claimants asserted that those 15 points made up substantially the whole of HBHG and represented their Claimants’ opinions, skill and labor involved in collating the various different theories into one book. As the Judge pointed out, by setting out their case in this way, the Claimants had nailed their colors to the mast of the Central Theme: if it was found to be too general, too unstructured or not a substantial part of their work, then their case would fail. Other than the influence of HBHG in the research, Mr. Brown denied the claims.

The Judge gave a detailed analysis of the law on non-textual copyright infringement, noting that copyright protects the original fruits of an author’s labor, skill and knowledge. Copyright protection extends from the actual text used through mere alteration of some words in a text, but broad ideas contained in a work are at the other extreme. Defining where on that spectrum non-textual copying sits requires a careful analysis of the work alleged to have been copied to establish if it can be protected as a literary work.

The Judge concluded that copyright could not subsist in the Central Theme of HBHG. The Central Theme was ultimately an artificial creation for the purposes of the litigation, and it was practically impossible to distil such a theme from HBHG. Further, it did not represent the whole or a substantial part of HBHG because a large amount of the book would remain if the Central Theme was removed. The points comprising the Central Theme were at far too high a level of abstraction to be protected by copyright: they were at the extreme end of the spectrum of broad, unprotectable ideas. There was no structure to the Theme which had been misappropriated; the mere chronological order asserted by the Claimants was too general to be protected.

Although this decision was enough to decide the case, the Judge determined the other issues as well. Although a majority of the 15 individual points of the Central Theme were in both books, it was clear that several research books had been used, so the points in DVC may not have come from HBHG. However, on the evidence, he held that HBHG had been used for DVC.

As a result of this decision, the law on copyright protection in respect of non-textual copying remains largely the same. Authors and publishers of works that are influenced by earlier works need not be unduly concerned about possible legal action. The decision also confirmed that authors have greater freedom to use collections of historical facts without fear of reprisal. On the other hand, the case also highlights the importance for copyright owners and practitioners asserting claims of non-textual copying to carefully and accurately define exactly what forms the heart of what is said to have been taken. The case is also interesting as it gives guidance on the threshold for literary copyright protection of ideas, plots and themes. In addition, the month after judgment was handed down has seen further intrigue in the form of hidden codes and judicial censure.

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