The Holy Blood and the Holy Grail
Michael Baigent and Richard Leigh claimed that Dan Brown’s blockbuster thriller “The Da Vinci Code” (“DVC”) was an infringement of the copyright in their book “The Holy Blood and The Holy Grail” (“HBHG”). Although it was Dan Brown’s publisher named in the claim, in reality it was Mr Brown who was “on trial over the authorship of DVC”.
The claim advanced at trial was that Dan Brown had reproduced or authorised the reproduction of a substantial part of the copyright in HBHG, in particular by copying the Central Theme of HBHG and using it as inspiration for DVC. The Central Theme had been amended extensively during the course of the proceedings, but by trial it had been distilled to 15 concepts and ideas, arranged chronologically.
The High Court dismissed the claim on the basis that:
(i) The material copied from HBHG and reproduced in DVC were mere ideas, and did not qualify for protection as a copyright work and;
(ii) The Central Theme was not a substantial part of HBHG, so copyright would not subsist in the original work alleged to have been copied.
The Task of an Appellate Court
The consideration of whether the elements incorporated in the later work amounted to “a substantial part” of the original is a mixed question of fact and law. It is not for the appellate court to substitute its own view on such matters, but must make an assessment of whether the decision on that point was an error of principle, or plainly wrong. In particular issues such as substantiality may only be determined by the trial judge having heard all the facts and evidence, and such points cannot be re-tried on appeal.
Subsistence and Infringement
The central point on the appeal was whether the trial judge had applied the wrong test as a matter of law by requiring the Claimants to show that the Central Theme expressed in HBHG was capable of protection as a literary work, and that Mr Brown had copied a substantial part of it.
The logic of the decision in the High Court appeared to be that the Central Theme and/or its 15 elements were not sufficient to qualify as copyright works, therefore the claim failed as even if there had been copying.
This approach was criticised by the Court of Appeal, and it was emphasised that the issue of subsistence and infringement should be considered separately. Equally, it is wrong to dissect an entire copyright work and conclude that copyright cannot subsist in each section on its own, as this acts to undermine the copyright in the whole.
The key issues to be determined were:
(a) whether the Central Theme and/or its 15 elements appeared in DVC;
(b) if so, whether this was as a result of direct or indirect copying from the original; and
(c) finally, whether what was copied amounted to a substantial part of the original.
Copying of a Substantial Part
Although the High Court had not applied the correct test on subsistence or infringement, the Judge had nonetheless reached the correct conclusion in holding that the elements copied did not amount to a substantial part of the original.
In particular, those elements copied were mere ideas from HBHG, rather than the form or manner in which the ideas were expressed. It was not sufficient for the alleged infringing work to merely use items of information, facts, ideas, theories, arguments or themes derived from the original copyright work. Although it takes time, skill and effort carry out the research and edit and compile evidence to formulate hypotheses and conclusions, the mere use of items of information from the finished work was not in itself, “a substantial part” of the original simply because it had taken time skill and effort to carry out the necessary research.
Summary of High Court decision
Having given guidance on the specific issues discussed above and impliedly criticised the approach of Peter Smith J at first instance, nonetheless, the Court of Appeal could not find fault with the conclusions drawn. The Court of Appeal considered that an analysis of the judgment demonstrated the following conclusions, none of which could be shown to be wrong at law. Therefore, whilst the decision might have been better expressed, the reasoning and analysis of the judgment demonstrated the correct application of the law, and accordingly the appeal failed.
- There is unquestionably relevant material in HBHG reproduced in DVC, including 11 of the 15 Central Theme elements.
- Dan Brown had access to the original work at the time the relevant sections of DVC were created. There was no dispute that reference had been made at this stage.
- Dan Brown had based relevant parts of DVC on material in HBHG.
- What was taken from HBHG was at too high a level of abstraction to qualify for copyright protection since it was not the product of the application of skill and labour by the authors of HBHG in the creation of their literary work.
- In any event although 11 of the 15 Central Theme elements were found in both books, the Central Theme was not representative of HBHG and was no more than a selection of features of HBHG collated for forensic purposes. Since the Central Theme did not emerge from a fair reading of the book as a whole it was not a substantial part of the original work.
The decision is notable that comment and analysis is provided by all three Lord’s Justice, rather than a lead judgment being given solely by one. Lloyd L.J. also commented unfavourably on the short time it took Peter Smith J. to write the High Court judgment, and the effect it may have had on its clarity.
In upholding the original decision, the appeal judgment provides an exhaustive analysis of the requirements to establish a claim for copyright infringement, and the relevant test to determine subsistence, copying and substantiality. It is therefore likely to be of considerable guidance in the future. In particular, the ideas/expression dichotomy is a familiar issue, and appellate court guidance will be welcomed by all creative industries, including media and advertising, software and publishing.