March 2006
“Secret and Lies” : Mona Lisa keeps smiling
It is not often that religious theories and arguments of theology are aired in the High Court.
This is a case combining general media interest and novel points of law. It will not delve into the underlying themes of religion and conspiracy theory but promises to deal with issues of real legal interest.
Two authors, Michael Baigent and Richard Leight are suing their own publishers, Random House for breach of copyright in the UK. They claim that Dan Brown in his best selling novel, The Da Vinci Code, also published with Random, has copied substantial material from their 1982 book The Holy Blood and the Holy Grail.
In this non fiction book the two men, together with a third author, Henry Lincoln, who is not involved in the proceedings, set out a hypothesis in which Jesus Christ and Mary Magdalene had a child whose blood line continues to this day. This secret has been fiercely protected through generations by an occult society, the Priory of Sion, whose Grand Masters have included Leonardo da Vinci, and the Catholic Church has tried hard to hide the truth.
That theory is central to Brown’s book, which has sold more than 30 million copies. If successful the suit could affect the British release in May of the Hollywood film adaptation of Brown’s book staring Tom Hanks and Sir Ian McKellen.
Dan Brown is not being sued, but is expected to give evidence.
Copyright in a written work is infringed when a defendant reproduces – i.e. copies- the whole or a substantial part of the work without the owner’s consent, whether directly or indirectly, unless what is done falls within the scope of exceptions to copyright permitting certain minor uses of material. Baigent and Leigh allege that Brown infringes their literary copyright in The Holy Blood and the Holy Grail.
Copyright protects the skill and labour of an author in creating their work but the protection extends only to expressions and not to ideas, names, titles, procedures and methods of operation as such. Agreement and treaties worldwide have confirmed this copyright principle. Although the work itself may be protected, the idea behind it is not.
But what is meant by ‘ideas’? The borderline between expression and idea is very difficult to define. If we can accept that the expression of an idea will have copyright protection rather then the underlying idea, why can’t we accept that ideas that are substantially elaborated could attract the same protection?
A substantial part is not defined in copyright law but has been interpreted by the courts to mean a qualitatively significant part of a work even where this is not a large part of the work. The ‘substantial part’ can be ‘a feature or combination of features abstracted from the claimant’s work” but might need not form an identifiable part of it.
In any average literary copyright case, copying and the resulting infringement would consist of textual similarities between the copyright work and the infringing material. Here however, the instances of textual copying are negligible; these alone do not amount to a substantial part of Baigent and Leigh’s work. The claim is that Brown copied the ‘central theme’, which itself is the substantial part of their book.
Brown admits that he consulted Baigent and Leigh’s work during his research, he even refers to it in his book but he denies of course having copied it. The judge will need to analyse what part Baigent and Leigh’s concept and ideas played in the creation and the development of The Da Vinci Code.
Even if the theme itself is of too high a level of abstraction to be protected as a copyright work, the Court is not there to assess the credibility or the truth of the theories developed in the respective books and their alleged factual inaccuracies.
Ultimately the court will have to decide whether Baigent and Leigh’s original idea is in the public domain and therefore not protectable by copyright or whether the plot, the characters, the incidents and the interpretation of events in The Da Vinci Code constitute together or separately a substantial part of The Holy Blood even if The Da Vinci Code does not reproduce a single sentence of Baigent and Leigh’s book.