COPYRIGHT INFRINGEMENT – A USEFUL CHECKLIST PROVIDED BY THE COURT OF APPEAL IN THE DA VINCI CODE RULING
The High Court in London ruled in April 2006 that US writer Dan Brown had not copied the work of Michael Baigent and Richard Leigh , the two authors of the 1982 non fiction book the Holy Blood and the Holy Grail (“HBHG”). Baigent and Leigh sued Random House for breach of copyright alleging that Dan Brown, the author of the Da Vinci Code, used parts of their work as the basis of his book.
Both books are based on the theory that Jesus married Mary Magdalene and they had a child and that the bloodline continues to this day. Baigent and Leigh alleged that Brown appropriated ‘themes’ and ‘ideas’ from their earlier work but this was rejected by Justice Peter Smith sitting in the High Court hearing the case.
Justice Smith found the claim to be without merit and held that 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
Baigent and Leigh appealed to the Court of Appeal but the Court of Appeal recently upheld the decision of the High Court. Baigent and Leigh failed on two crucial points
- The Judge held that what Dan Brown had taken from HBHG amounted to a theme or an idea which is non textual copying and that copyright protection does not extend to information, facts, ideas, theories and themes.
- The theme/theory which the authors of HBHG alleged to be the theme of the book was not held to be it’s central theme at all. The court held that the alleged central themes were a result of research and was not a ‘substantial part’ of HBHG as required to be copyright protected.
What practitioners and businesses will find useful is the checklist offered by the Court of Appeal in this case on the factors which the courts should take into account when assessing copyright infringement claims. These are:
- Are there similarities between the alleged infringement work and the original copyright work? Unless similarities exist, there is no arguable case of copying
- Did the author of the alleged infringing work have access 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
- Did the author of the alleged infringing work make some use of material derived from the original work in his work? If no such use was made, you need to consider the reason for the similarities. Is it coincidence? Were there similar sources? If the latter is the case, how were the sources used by both parties?
- If use was made of the original copyright work, was the part copied ‘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?
If you have any queries on your Intellectual Property rights, or think that someone may be infringing those rights, please contact Nasima Ansary on 01689 887877 or by email at nasima.ansary@cwj.co.uk.
