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Court of Appeal issues last word on Da Vinci Code case

Dan Brown had the means, the motive and the opportunity.  But did he actually commit the crime?   Did he infringe copyright? 

Apparently not. 

That’s the final verdict, providing the closing chapter in The Da Vinci Code copyright infringement case.  Or rather, The Holy Blood & The Holy Grail infringement case.  Last week the Court of Appeal here in London rejected a claim that Dan Brown had infringed the copyright of this latter book’s – excuse me, that is, this earlier book’s – two authors. 

Michael Baigent and Richard Leigh, two of the three authors who wrote The Holy Blood & The Holy Grail, brought the case to the High Court in February 2006.  Their controversial 1982 investigative non-fiction book theorised that Jesus Christ did not die on the cross, but that he and Mary Magdalene had a child together and their bloodline continues into the present.  If you’re one of the five people who haven’t read The Da Vinci Code, then you may be surprised to learn this theme is similarly explored in Brown’s novel, and Baigent and Leigh maintained this had violated their UK copyright. (The Holy Blood & The Holy Grail’s third author, Henry Lincoln, didn’t pursue a claim due to ill health, and now he’s probably thankful; the Court of Appeal’s last word on the matter means Messrs Baigent and Leigh will face a hefty £3M legal bill.)

As the saying goes, “where there’s a hit, there’s a writ”, and the runaway success of Brown’s book has had not just Baigent and Leigh having their lawyers chase after him to the bank.  In 2005 Brown also faced – and won – a case brought by author Lewis Perdue, who similarly alleged Brown had infringed the copyright of two of his own novels, Daughter of God and The Da Vinci Legacy. 

I’ve been following The Holy Blood and The Holy Grail story with interest since it first came to my attention, and for a number of reasons; not least because I’ve read both books (curiously enough my own initial reaction about half way through The Da Vinci Code was, “But this is the basis of The Holy Blood and The Holy Grail!”) but because of the business I’m in, I’m understandably interested in real world cases.  In this one the question was posed whether a ruling in The Holy Blood and The Holy Grail authors’ favour would affect the course of future infringement rulings or extend the boundaries of copyright protection.  Why so? 

Well, the answer was in the statement Baigent and Leigh released after Court of Appeal ruling; “We believed, and still do, that non-fiction authors would suffer and be discouraged from extensive research if it was found that any author could take another’s ideas, ‘morph’ and repackage them, then sell them on”.  Their book was factual (though I’ve read an article by at least one writer who expressed their facts as dubious), and Brown’s fiction (and I’ve read whole books stating just how much of a fiction).  And it was in his fiction they claimed he’d placed the central tenet of their own work.  But could not Brown draw on historical sources for his fiction? 

The Copyright Designs and Patents Act clearly places copyright not on ideas, but on the expression of ideas.  And Baigent and Leigh in this case were aiming to demonstrate Brown had copied the expression of their ideas through the “structure” and “architecture” of their book.   As it turned out, their case wasn’t convincing enough.  Baigent himself was apparently a poor witness and had to retract a couple of their claims in the course of his cross-examination.  It wasn’t denied that Brown had access to their book – it was used by his wife, Blythe Brown, in the course of her researches and in Brown’s writing The Da Vinci Code.  Brown even used anagrams of the authors’ names for two his own characters; rather flattering I thought.  And yet, while this and Brown’s own heavily annotated copy of book were evidence Brown both knew of and used The Holy Blood and The Holy Grail, that even Brown copied language from the earlier work, nevertheless (and you may be surprised to learn this), they weren’t nearly the smoking gun Baigent and Leigh needed.  In the end, they were unable to convince the court that Brown had infringed the copyright of their work not just in quantity but in quality – vitally important for clinching their claim. 

In his ruling in favour of Brown back in April 2006, Mr Justice Peter Smith, the judge presiding at the High Court trial, said that Brown had taken only the ideas and the facts, not such architecture as Baigent and Leigh had claimed.  Furthermore; “There is nothing for example in this case, which if decided in the claimants’ favour, would stultify creative endeavour, obtain a monopoly on ideas or historical information or create a precedent which extends the boundaries of copyright protection in the sphere of literary works…”  He went on “…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 that was allowed to happen it would have a serious impact on writing.”  (A Summary of Judgement along with full judgement can be found at Her Majesty’s Courts Service site.) 

Not just a ruling against Baigent and Leigh, but “authors of pretend historical books”?  Ouch! 

So the “serious impact on writing” has thus been avoided, not just last April, but again at the Court of Appeal last week. 

And my view?  Is the Court of Appeal’s final ruling the correct one?  Well, from what I know of the case, and having read both books, I have to agree with it.  While both books are a journey to uncover an alleged “truth”, I count that truth something like what director Alfred Hitchcock called “a maguffin”.  The journey to find the Grail provided the fascination, suspense and thrills, not the Grail itself.  And as I see it both journeys, whether fact or fiction, a document of painstaking research or an airport lounge page-turner, were significantly different.  Hardly a legal assessment I know, but then I’m not a lawyer.  I certainly can’t agree with Baigent and Leigh’s statement that’s they’ve suffered from this.  While admittedly not within the same creative area, recording artists like Gary Numan have enjoyed a renaissance from new musical kids on the block doing precisely the kind of ‘morphing’ and repackaging through sampling tracks, that Baigent and Leigh complain has occurred to their own work here.  The Holy Blood and The Holy Grail was referenced and acknowledged in The Da Vinci Code.  Then there were Brown’s anagrams of the authors’ names.  Finally – and call me cynical – if you could access Random House’s sales sheet for Baigent and Leigh’s book (Random strangely enough was publisher of both works), I’m sure the figures will tell you it’ll have doubtless benefited from the publicity the trial generated.  Hopefully enough to help pay its authors’ £3M legal bill…  

© 2007 Julian Boote  All Rights reserved.

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