The Da Vinci Code Controversy Continues
This article was taken from the Venner Shipley Newsletter edition 20
Earlier this year, Michael Baigent and Richard Leigh sued publishers Random House, claiming that Dan Brown’s bestselling book, The Da Vinci Code, infringed copyright in the ‘architecture’ of their book, The Holy Blood and the Holy Grail.
The Holy Blood and the Holy Grail, also published by Random House, is described as historical conjecture. It presents a theory that Jesus and Mary Magdalene married and had a child. The book claims that the bloodline continues to this day, with a secret society protecting their heirs against conspiracies enacted by the Catholic Church.
This is similar to the theme of Dan Brown’s book, which has made him the highest paid author in history.
For copyright infringement to take place, the Copyright, Designs and Patents Act 1988 stipulates that a substantial part of a protected work must be copied. However, the claim brought against Random House was not that a substantial part of the text of the claimant’s book was copied, but that there was nevertheless ‘non-textual’ copying of a substantial part of the work, in particular the ‘central theme.’
Sitting at the high court following a three week trial, Mr Justice Peter Smith dismissed the claim, stating that there was ‘no architecture or structure to be found in The Holy Blood and the Holy Grail as contended by Mr Baigent and Mr Leigh. Even if the central themes were copied, they were too general or of too low a level of abstraction to be capable of protection by copyright law.’
In Sawkins v. Hyperion Records [2005] 1 WLR 3281, Mummery LJ stated that ‘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.’
Justice Smith acknowledged that Brown had copied some language from The Holy Blood and the Holy Grail, and had even created a character, Leigh Teabing, using an anagram of the authors’ surnames. However, such copying did not represent a substantial part of the claimant’s work and was not, in any case, included in the claim brought against Random House.
He went on to say that ‘it would be quite wrong if fictional writers were to have their writings pored over in the way The Da Vinci Code has been pored over in this case by authors of pretend historical books to make an allegation of infringement of copyright. I accept that if this were allowed to happen it would have a serious impact on writing.’
The claimants were ordered to pay 85% of Random House’s legal costs, which are estimated at nearly £1.3m. Whilst the judge refused Baigent and Leigh permission to appeal, they have announced that they intend to apply to a higher court.