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Behind the headlines of Da Vinci: inspiration or infringement?

June 2007 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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Publishers and authors may be breathing a collective sigh of relief following the recent confirmation by the Court of Appeal in Baigent and another v The Random House Group Ltd (the Da Vinci case) that The Da Vinci Code does not infringe the copyright in an earlier work, The Holy Blood and the Holy Grail.

On the face of it, the case appears to uphold the commonly cited (if somewhat generalised) premise that ‘copyright protects expression, not ideas'.

However, it can be dangerous to over-simplify this principle. Authors and publishers (as well as creatives in other media) still need to be cautious about the extent to which they take inspiration from existing copyright works. On the one hand, it is beyond doubt that copying a substantial part of the text of a literary work can constitute copyright infringement. On the other, it is clear that the adoption of pure ideas will not amount to copyright infringement.

However, as Da Vinci and the other cases on this area of law demonstrate, it can be a very difficult task to define the boundary between the mere taking of general concepts and ideas, and copying in the copyright sense.

Da Vinci: the Claim

The facts of this much-publicised case are familiar. The claimants, Michael Baigent and Richard Leigh, alleged that Dan Brown's best-selling work of ‘faction' The Da Vinci Code (DVC) infringed the copyright in their work of ‘historical conjecture' The Holy Blood and the Holy Grail (HBHG). In 2004 Baigent and Leigh brought an action for breach of copyright against the publisher of DVC, Random House (which also happened to be the publisher of HBHG). The claim was not based upon direct ‘textual' copying (due to insufficient instances of verbatim copying). However, acknowledging that they could not claim copyright solely in the ideas or theories expounded in HBHG, the claimants alleged that Brown had taken the ‘central theme' of HBHG, which amounted to some 15 elements of their book.

Da Vinci: The decision

In 2006 the High Court held that DVC did not infringe the copyright in HBHG. Peter Smith J found that although some of the central theme was reproduced in DVC, the common elements were at too general a level to justify being protected against copying. To constitute an infringement the claimants would have needed to show not only that ideas or facts from the central theme were taken, but also that some ‘architecture' connecting or combining the elements of the central theme was substantially copied. The claim failed on several grounds. Critically, the Court held that the central theme itself was not genuine, but was an ‘artificial contrivance' created for the purpose of asserting infringement. (It was unfortunate for the claimants that Leigh himself expressly admitted as much in giving his evidence.) The claimants also failed to show any architecture, other than ‘a lame chronological order', which was too general and simply a pretence at structure to found the action.

The Court of Appeal upheld the decision in the High Court and clarified certain issues arising from the High Court judgment, including that the question at hand was not whether the central theme itself qualified for protection as a copyright work, but whether the central theme (if it existed) was itself a substantial part of HBHG.

The Court of Appeal also gave some useful guidance in a more general copyright infringement context, particularly the non-exhaustive checklist provided by Mummery LJ (see box, right).

Other Cases on the idea/expression dichotomy

Both the High Court and the Court of Appeal considered the cases of Ravenscroft v Herbert and Harman Pictures NV v Osborne, which arose from similar facts.

In Ravenscroft, Trevor Ravenscroft argued that James Herbert's novel The Spear had copied a substantial part of his book The Spear of Destiny. The judge in that case found for the claimant, as he considered that Herbert's book was actually based on Ravenscroft's historical work, and that Herbert had not even conducted his own research outside reading Ravenscroft's book. However, the judge also found 50 instances of direct copying of text, which almost certainly contributed to the finding of infringement.

In Harman Pictures, John Osborne's screenplay for The Charge of the Light Brigade was held to have been copied from Cecil Woodham-Smith's historical work The Reason Why. As in DVC, there was little or no direct textual copying. However, this case differed from Da Vinci in that a large number of the scenes were almost identical and several lines in the screenplay mirrored the book. The infringing work therefore showed similarity of incidents, locations and characters, which amounted to copying significantly greater than the ‘copying' alleged (let alone established) by Baigent and Leigh.

These earlier decisions no doubt encouraged Baigent and Leigh in bringing their claim. However, there are obvious dissimilarities between these cases and Da Vinci. The claimants drastically underestimated the evidence that is necessary for the court to accept that infringement has taken place where there is no reproduction of a substantial amount of text.

Impact of the case

Although there was no copyright infringement on the particular facts of the Da Vinci case, looking behind the headlines at the judgment reveals that the Court did not rule out the possibility of copyright infringement claims that do not rely on copying of actual text.

Although the Court of Appeal was hesitant to leave the door wide open to future copyright claims in relation solely to ‘ideas' or ‘themes', it specifically confirmed that the original elements in the plot of a play or a novel can constitute a substantial part of a work so that copyright may be infringed by a work that does not reproduce a single sentence of the original.

Consequently, if the claimants' central theme had been a combination of features from HBHG sufficiently clear and linked so as to correspond to the original elements in the plot of a play or a novel, the decision might have been different.

Following Ravenscroft it is likely that the court will infer that authors intend that material from their historical and reference works can be used by others so as to avoid the work becoming sterile. In other words, it is likely that a greater amount of copying is permissible from such works.

What is clear from the Court of Appeal judgment in Da Vinci is that (in the absence of literal copying of text) to be protected by copyright, the expression of the idea in the claimant's work will need to be sufficiently clear and developed to be easily identifiable in the defendant's work. The key element of the claimants' failure in Da Vinci was the inability to clearly express a genuine central theme and architecture connecting the points of that theme.

In conclusion, rather than breathe a sigh of relief at the failure of Baigent and Leigh's claim, authors and publishers should heed the subtle warning of this judgment. Copyright protection is available for concepts more abstract than those expressed in text. However, the question remains whether the evidence of copying must be as overwhelming as that in Harman Pictures, or whether it simply has to be clearer and more substantial than that offered by Baigent and Leigh.

For now there is a grey area between what amounts to infringement as opposed to merely inspiration - it is all a question of degree.

Non-exhaustive infringement checklist (Mummery LJ)

1) What were the similarities between the alleged infringing work and the original copyright work?

2) What access, direct or indirect, did the author of the alleged infringing work have to the original copyright work?

3) Did the author of the alleged infringing work make some use in his work of material derived by him, directly or indirectly, from the original work?

4) If the defendant contends that no such use is made, what is his explanation for the similarities between the alleged infringing work and the original copyright work? Are they coincidental or similar sources?

5) If use was made of the original copyright work, did the use amount in all the circumstances to a substantial part of the original work?

6) What are the factors which justify evaluating the part copied in the alleged infringing work as a substantial part?

Baigent and another v The Random House Group Ltd [2007] EWCA Civ 247

Ravenscroft v Herbert [1980] RPC 193

Harman Pictures NV v Osborne [1967] 2 All ER 324

By Caroline Turner, senior associate, Harbottle & Lewis LLP. E-mail: caroline.turner@harbottle.com.

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