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Tuesday, February 28, 2006

The Da Vinci Code: did author take copyrightable expression, or just facts/ideas?

Today begins the copyright trial in the UK, which is to decide whether Dan Brown's mega-bestseller The Da Vinci Code is an infringing work.  Michael Baigent and Richard Leigh, two of the authors of "The Holy Blood and the Holy Grail" (1982) -- an historical work that apparently posits that Jesus survived the crucifixion, married Mary Magdalene, and their children produced a line of descendants who are still flourishing while the Vatican hopes to conceal this information -- accuse Dan Brown of copying their work.  (I couldn't figure out how the Knights Templar and Holy Grail figure into the equation, but I think they relate to the descendants of Jesus and Mary Magdalene.  Oddly, both works are published by Random House, so Baigent and Leigh are suing their own publisher!)  (More from NYT)   

My take:    I have not read either book, and I'm not an expert in UK copyright law.  But, under TRIPs, no country is allowed to protect "ideas" under copyright (as opposed to the original expression of the ideas), so Baigent and Leigh will be hard pressed to argue that Dan Brown can't copy their idea that Jesus and Mary Magdelene married and had kids, etc. 

Moreover, "facts" are typically uncopyrightable as well.  Baigent and Leigh apparently are trying to get around these problems by characterizing their work as "historical conjecture and hypothesis," but not facts.  In the U.S. at least, that argument won't fly.  Courts treat interpretations and theories of historical facts as facts, whether incorrect or correct.  As such, such theories of historical fact -- such as a conspiracy theory to blow up the Hindenberg -- are not copyrightable under U.S. law.  Hoehling v. Universal City Studios, 618 F.2d 972, 979 (2d Cir. 1980).  Of course, an author's particular expression describing a fact is copyrightable, but it doesn't appear that the authors claim that Brown stole any of their expression.  Because Baigent and Leigh sold their book as "probably true" nonfiction (here), they would be effectively estopped in the U.S. from arguing that the content should be treated as nonfactual and therefore deserving of a broader copyright.  As I said, I'm no expert in UK copyright law, but I think the U.S.-type approach would be sensible enough to follow in this case.   

Posted by Elee on February 28, 2006 at 11:01 AM | Permalink


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The issue argued by the plaintiffs Leigh and Baigent is that they spent a considerable amount of time researching their book Holy Blood Holy Grail. The product of the research was a chain of hypotheses that the Holy Grail could be the Holy Blood (San Greal, Sang Real), ie that Jesus had descendants who have been guarded through history by various organisations.

Leigh and Baigent claim copyright infringement on the basis that the Da Vinci Code lifts the chain of hypotheses from HBHG and places it as the central thrill in DVC. Like any successful thriller, DVC consists of a sequence of startling disclosures: the plaintiffs' argument is that the disclosure sequence is heavily based on the sequence of ideas detailed in HBHG. In other words, Dan Brown used HBHG's sequence of hypotheses without having to carry out any substantial research of his own or even apply any imagination: sprinkle with a couple of car chases, add a shaving of psychotic albinos and sell.

The estoppel point raised above has not been argued here, maybe because English courts are still wary of estoppel as a doctrine after its inconsistent application over the past 50 or so years, or maybe because HBHG's clear statement that it is conjecture, not any assertion of the truth. Brown's counsel is currently attacking the degree to which the HBHG chain of hypotheses is replicated in DVC: the QC's efforts are lauded in the press, but on closer examination seem to divert the argument into issues of whether fine detail was copied from HBHG into DVC, rather than attacking the central argument that the chain of hypotheses was replicated, broadly or not.

It will be interesting to see how Dan Brown responds to questioning next week. Michael Baigent has recovered his poise in the second day of his cross examination, and his co-author Richard Leigh (sometime drummer in REO Speedwagon) takes the stand either today or tomorrow.

Posted by: Behemoth | Mar 9, 2006 4:30:27 AM

I have only defended one copyright case but it seems to me that the work claiming copyright protection must be "original". Do Messrs. Baigent and Leigh claim that they invented the idea that Jesus survived and married Mary Magdalene? How about Kazantzakis's "The Last Temptation of Christ" (and I have only cursorily read the Gnostic Gospels but I think there is something like it there too)? Of course, you are not allowed to lift verbatim passages off any work. An author is entitled to copyright his rendition of even the first chapter of Genesis. Is this the case here? [Also, I seem to remember that Alex Hailey ("Roots) was sued by the author of the "Mandigo" series on similar grounds. Was she British too?]

Posted by: nk | Feb 28, 2006 4:01:26 PM

I have not read either book, and I'm not an expert in UK copyright law.

Huh? Then why in the world would you opine?

Posted by: Mike | Feb 28, 2006 1:22:23 PM

This seems like a classic scenes a faire case, though I'm not sure what result I'd say is most likely. My recollection of the scenes a faire doctrine is that generic literary archetypes--the bumbling cop, the star-crossed lovers, the clumsy waiter--aren't copyrightable because they're part of our general cultural common currency. By contrast, specific plot elements that are distinctive of a particular work are copyrightable. I haven't read these books either but it seems that the elements at issue (Jesus marrying Magdalene etc.) are unfamiliar and distinctive enough that they may qualify for protection.

Posted by: Dave | Feb 28, 2006 12:35:14 PM

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