Da end of Da Vinci case

The publishers of The Da Vinci Code, Random House are celebrating after the appeal heard this morning (see earlier posting) was dismissed by the Court of Appeal. The BBC's report states that the costs of the appeal were around £300,000. 

The BBC quote Gail Rebuck, the head of Random House, who said  "Misguided claims like the one that we have faced, and the appeal, are not good for authors, and not good for publishers. But we are glad that the Court of Appeal has upheld the original judgment and that, once again, common sense and justice have prevailed, helping to ensure the future of creative writing in the UK," 

Call me a cynic but it strikes me that neither side have done that badly out of this litigation. Sales of all the books concerned have received a much needed boost and the Da Vinci Code in particular has received what can only be described as (unwarranted) hysterical attention.  Arrow published The Holy Blood and The Holy Grail and Random House published The Da Vinci Code. I may be wrong but aren't Arrow and Random House VERY closely tied together. To coin that awful American phrase  "Go figure!"

Comments

[Paulo]

As a lawyer, what I find instinctively a bit odd about the whole Da Vinci litigation is that it made it to the Court of Appeal at all. My guess is that most copyright lawyers think the claimants were onto a loser from the start, because of the fundamental ideas v expression dichotomy.

So let's just take a moment to be clear on what the point of law was here. It sort of starts with the now ex-Laddie J, but we'll come to that later...

Let's start by looking at the case report from Lawtel for the Da Vinci Code Court of Appeal judgment - bear with me on this, but it does set up the issues nicely:

"As the judge had found, D had had access to the [Holy Blood and the Holy Grail "HBHG"]] at the time when he had written parts of the [Da Vinci Code "DVC"], and had used the HBHG at that stage, basing relevant parts of the DVC on material within it. There was relevant material in HBHG that was also to be found in DVC, namely, several central theme elements. Nevertheless, the judge had been correct to conclude that what D had taken from HBHG amounted to generalised propositions at too high a level of abstraction to qualify for copyright protection, because it was not the product of the application of skill and labour by the authors of HBHG in the creation of their literary work. It lay on the wrong side of the line between ideas and their expression. In any event, although the relevant central theme elements were to be found in both books, B's claim depended on showing that the central theme propounded was a central theme of HBHG sufficient to qualify as a substantial part of the work, albeit as a combination of features obtained by abstraction, Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) (2000) 1 WLR 2416 considered. The judge had been entitled to hold that the central theme was not a theme of HBHG at all, but was no more than a selection of features of HBHG that had been collated for forensic purposes rather than having emerged from a fair reading of the book as a whole. Further, the judge had been entitled to reject B's contention that the central theme was a substantial part of the HBHG, and it was not necessary for him to provide any further explanation for his conclusion that, whatever elements, if any, were copied from HBHG, they did not amount to a substantial part of it."

Where did this idea come from, that copying "central themes" from one work could amount to copying a substantial part of that work?

In the Designers Guild case, which was relied upon by the claimants in the Da Vinci Code litigation, the House of Lords put its mark on how to approach cases where copying is, for want of a better word at this stage, "indirect".

The House of Lords said that where the copying had been a copying with modifications, the phrase to describe this sort of copying is "altered copying" (per Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs (1995, 2nd Edition)).

When dealing with such cases, the House of Lords laid down that a "useful test" to determine whether an altered copy constituted an infringement was, again, proposed in Laddie, Prescott & Vitoria: "whether the infringer incorporated a substantial part of the independent skill, labour etc contributed by the original author in creating the copyright work ...". This test is based on an underlying principle of copyright law, that a copier was not at liberty to appropriate the benefit of another's skill and labour.

It is this authority on this core principle of copyright law which gave the claimants in the Da Vinci Code case 'wiggle room' to claim copyright infringement because of the alleged use of 'central themes' from their book by Dan Brown in the Da Vinci code.