A core principle of copyright is that it offers protection to how ideas are expressed and not the ideas themselves. This featured very prominently at a high profile court in the United Kingdom in April 2006. The contention was on Dan Brown’s world bestseller, The Da Vinci Code. This case is very significant for copyright law. The reason for this is because the lawyers representing Baigent and Leigh attempted to propose that there could be non-literal copying of literary work. They did not succeed with this proposition. Previously, there has been success in the application of the non-literal argument, more often, in the case of knitting patterns, computer programs or recipes.
In this essay, we are looking at the facts of the case, the legal issues addressed and the judgment.
Michael Baigent and Richard Leigh brought the case against The Da Vinci Code’s publishers. These two were the authors of a historical work, The Holy Blood and The Holy grail, first published in 1982. They claimed that in writing the Da Vinci Code, Dan violated the copyright of their work (Alex 67).
Central in this dispute was a hypothesis about the early Christian legend of Holy Grail, which was present in The Blood and The Holy Grail. The theme of the search for the lost Grail, which is the cup otherwise referred to as the chalice that Jesus used at the Last Supper, had been a popular theme in the tales of the medieval periods of chivalry. This theme has inspired writers, filmmakers as well as historians through many generations. In the Holy Blood and the Holy Grail, grail refers not to the cup, but to holy blood, or the bloodline of Jesus Christ. It also encompassed the belief that this bloodline, by the marriage between Jesus Christ and Mary Magdalene had continued to become the Merovingian Dynasty of the French (Dan 36).
Dan Brown is a well-known fiction writer. His novel, The Da Vinci Code, for months has topped the list of the bestselling novels in Europe and America. A murder mystery, The Da Vinci Code is used to unravel the murder of Jacques Saunire. In their attempt to solve his murder, the main characters are forced to do a research on the holy blood. In this quest, it is their obligation to unlock a sequence of puzzles, which are based on the secret which is behind Christ’s bloodline and the Priory of Sion.
It is very obvious that Dan had taken ideas from The Holy Blood and The Holy Grail. Dan’s book makes a very clear reference to the Holy Blood and The Holy Grail. Moreover, the name of one of the characters that is Sir Leigh Teabing was an anagrammatic fabrication of the names of the two authors. The court in making decisions on this case on, the applied the well known and established principles of the law to the facts at hand.
The Plaintiffs, Baigent and Leigh claimed copyright violation of their literary work. They alleged that the Respondent, Dan Brown copied the manner in which they made the series of connections of the facts, which brought together the bloodlines. Lawyers for the Respondent took the position that the Plaintiffs, Beignet and Leigh were seeking to have a monopoly of the broad ideas about the life and lineage of Jesus Christ. These ideas, they said, were too broad to be protected by the copyright law. The court agreed. The court rejected the claim by the Plaintiffs that The Holy Blood and The Holy Grail had any true structure or architecture. (Alex 34).
Justice Smith further held that Dan Brown had the right to copy the theme points making up the main theme. Even if the individual themes were protected by copyright, a copyright infringement claim could not be successful since the themes did not make up a substantial part of the Plaintiff’s work. There was little actual text copying of The Holy Blood and The Grail, they therefore claimed that there had been non-literal copying of a considerably large portion of their literary work.
In copyright law, the general principle is that copyright protects expression and not ideas. Additionally, historical facts, which majorly make up The Holy Blood and the Holy Grail, are ideas which cannot be protected. Baigent and Leigh claimed in their case that Brown had copied a substantial portion of the “manner” in which those ideas had been expressed by them as opposed to taking the ideas themselves.
There is a paradox in relation to literary works which are built upon historical facts. Even though works can achieve copyright protection, the creators who come up after may draw on those facts. Nevertheless, none is allowed to plagiarize the works of the original author.
It was held by the court that, while it was clearly evident that Dan Brown and his wife, who was his primary researcher had borrowed from The Blood and The Holy Grail to an extent greater than Brown had acknowledged, it did not mean that there was any infringement by them in the book. On the contrary, Dan and his wife only made use of the ideas and the themes of the book to help them in drawing an outline for their book.
This judgment is a reaffirmation by the court of the principle that ideas and facts in themselves are offered no protection by the copyright. This has left artists and authors with the ancient problem of offering protection against the unauthorized exploitation of their brilliant ideas. The exploitation of the boundaries of this principle by the court led to the conclusion that the arrangement of facts and ideas in some works may be protected by copyright. This case is not likely to inspire mass litigation against authors and artists. However, it is a reminder to them that they must be very cautious when borrowing from other people’s material.
Another notable case is that of Reyher v. Children’s Television Workshop (1976). This was a case Reyher, an author and illustrator of a children’s book filed against a company that made a publication of a Television skit and a magazine story. This skit and story had a title and a plot similar to that of Reyher. She claimed copyright infringement. The court found that the theme was not subject to copyright. They also found out that there had been no infringement of copyright. This is because there were differences between the book and the skit in all other respects. In reaching their decision, the court applied the “total concept and feel”.
Rebecca Reyher’s book, which talks about her mother being the prettiest in the entire globe, is adapted from an Old Russian story. It is about a little girl who assists her mother in the kitchen and in the farm. When a crowd gathered one day for a festival, they were separated. The girl then enquires from strangers about the where about of her mother. When asked about the looks of her mother, the little girl consistently points to her mother’s beauty, unrivaled globally. Various women came to where she was, urged by those who heard her, but none was her mother. Finally the mother appears, quite homely in appearance as observed by some of the people in the crowd.
Jon Stone wrote a script for a television skit entitled The Most Beautiful Mother in the World. This was aired as part of the Television program. Tibor Gergely thereafter created illustrations of the script and published it in the Sesame Street Magazine. It was also published in the Tuesday At Home magazine by Tuesday Publications. The plot was similar. The illustrations were however different. They showed a little lad somewhere in Africa. Moreover the story was shorter and simpler. The morals of the two versions were differing. The book’s moral teaching is that love makes people beautiful. On the contrary, the television skit tries to bring out the fact that various people have different views about beauty (Caren 18).
Rebecca Reyher and her compatriot Ruth Gannet felt that the copyright of their work had been violated. They sued Jon stone and the Tibor Gergely for copyright violation at the District Court of southern New York. The court did not find any substantial evidence that could hold the claims of the Plaintiffs. The two works were similar to a very large extent, the court observed. It however described the book as a derivative from a work already in the public and hence the copyright could not be protected. Moreover the District court found not any evidence of copying of illustrations or texts. The Plaintiffs appealed this decision.
On October 31, 1975, the Court of Appeals for the Second Circuit granted hearing for the appeal. While testifying, Reyher made it clear that the children’s book was an adoption of a narrative. The narrative had been narrated to her by her mother. Stone and Gergely on the other hand claimed to have heard different versions of the story. They however denied seeing Reyher’s work. According to Reyher, even though there was no literary copying or paraphrasing of her work, she said that the general concept and touch of her work had been copied(Eleanor and Carleton 82 ).
The court of Appeal differed with the district court’s findings that the work was a derivative. This was because of that fact that it was difficult to define the original work. The court also disagreed with the Plaintiffs claim that there was any substantial similarity. It was observed by the court that the protection granted to any work which can be copyrighted extends only to the specific expression of an idea and not the idea itself. The court of Appeal applied the “total concept and feel” standard used to determine substantial similarity; the Ninth Circuit on the Roth Greeting Cards v. United Card Company (1970) had laid this out. The court therefore found that there was no copying. This is because the two versions were varying in detail as well as in style. Just like in the Da Vinci Code case, the court of Appeal asserted that the core principle of copyright lies in its protection to how ideas are expressed in literary work and not the ideas themselves. (Eleanor et al 56).
Alex, Carmine. Dan Brown's "The Lost Symbol": The Ultimate Unauthorized Book Punked books, 2009. Print.
Caren, Irr .Pink Pirates: Contemporary American Women Writers and Copyright. University of
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Eleanor, Jackson and Carleton Eldridge Rebecca Reyher, Petitioner, V. Children's Television Workshop Gale, U.S. Supreme Court Records, 2011. Print.
Stephen, Fishman. The Copyright Handbook: What Every Writer Needs to Know. Nolo, 2011