Roderick Dadak, partner, and Dr Thomas Hays, consultant, at law firm Lewis Silkin LLP, ask what the recent Da Vinci Code judgement means for copyright law
Dan Brown’s million-selling The Da Vinci Code (DVC) didn’t just start a craze among the nation’s book readers, it also thrust the UK’s copyright law into the limelight when two of the three authors of the best-selling book The Holy Blood and the Holy Grail (HBHG), lost their copyright infringement action against the publishers Random House earlier this year.
Their claim was made under the UK’s Copyright Designs & Patents Act 1988, which protects an author’s literary, dramatic musical and artistic work from plagiarism or unfair exploitation. For a work to be protected it must satisfy the test of originality, namely that it is the result of skill and labour. Here it was alleged that there had been a breach, in that a substantial part of HBHG had been copied in a non-textual rather than a textual manner. In short, that Brown had stolen the authors’ ideas.
The problem is that copyright protects the expression of ideas, not ideas themselves. This maxim creates a continuum of legally substantial copying, from verbatim plagiarism to works written ‘in the style of’. Plagiarism is actionable, imitation is not. What is substantial is a question of fact, as is the more fundamental question as to whether copying has occurred at all. Copyright claimants must prove that substantial or significant portions of their work have been copied. Anything less fails the test for copyright infringement. In this case, the claimants alleged that Brown had copied their central theme in forming his plot, but Mr Justice Peter Smith found there was no central theme to HBHG, and that the association of parts relied on by the claimants for the theme of their work, supposedly copied by Brown, was an artificial construction put forward for the purposes of the infringement action. It was all too general and much was in the public domain anyway. As a result, there had been no substantial copying, at least not in the way the case was pleaded.
Plagiarism is actionable, imitation is not. What is substantial is a question of fact, as is the more fundamental question as to whether copying has occurred at all.
This decision is an ironic sequel to that in Ravenscroft v Herbert and New English Library Ltd (1980), involving an infringement claim by the author of a non-fiction book (as with HBHG) against a novelist who copied a central historical theme (unlike Dan Brown). But in Ravenscroft there had been blatant textual copying and the judge had no difficulty in finding for Ravenscroft. This proved a hurdle that the HBHG authors could not leap. Essentially authors will remain safe so long as they don’t copy text or self evidently copy the expressed ideas in an obvious way (as Herbert in Ravenscroft).
This article was first published in IP Review, issue 15