 Starring: Tom Hanks, Audrey Tatou, Ian McKellen, Paul Bettany, Jean Reno
Director: Ron Howard
Year Of Release: 2006
Plot: While in Paris, American symbologist Robert Langdon is summoned to the Louvre, where an elderly curator has been murdered. Langdon discovers he’s the prime suspect in the killing, but manages to elude the French police with the help of government agent Sophie. As he tries to work out what’s going on, he discovers an ever deepening conspiracy concerning a hidden society that protects a secret that could rock the foundation of the Catholic Church, as well as others who will kill to get to and destroy that secret. |
Copyright is a stunningly complicated area of law. Although most agree that those who create works of art, film, music or literature should be afforded some level of protection from people indiscriminately copying their work, figuring out how protected these authors should be is by no means straightforward. If you copy a book word-by-word it’d be easy to claim it was plagiarism, but normally when cases reach court it’s to do with things that are far less straightforward, such as what is classed as illegal copying and what isn’t, what’s purely coincidental, what is ‘fair use’ (such as limited copying for use in criticism or parody), what can be classes as genuinely original and what can’t, as well as the extent to which any copying might have happened (is it just a tiny bit or a wholesale rip-off) and even if it has, whether it’s actionable in law. In fact a lot of lawyers have gotten very rich trying to disentangle it.
The general test is that you can’t copyright an idea, but you can protect the way that idea is expressed. So, for example, the numerous authors who’ve sued JK Rowling because they’d written books about child wizards before her, have all lost because the idea of a boy who discovers he’s magic and goes to a wizardry school isn’t copyrightable. However, if they could prove that Rowling had actually gone further than that and used the structure of their story, the locations, characters and/or specific plots, they would have a case – although again it would depend on how similar they are, and also whether there’s a more than reasonable likelihood that Rowling would have read what she’s accused of copying before writing her books.
However, The Da Vinci Code got caught up in a rather more interesting copyright case. In 1982, Michael Baigent, Richard Leigh and Henry Lincoln wrote a book called The Holy Blood and the Holy Grail, which covers most of the same themes and ideas as The Da Vinci Code. In fact much of what Robert Langdon does in Brown’s book is uncover the alleged conspiracies detailed in Holy Blood, from the Holy Grail being Jesus’ bloodline to the secret society, The Priory of Sion, which protects that bloodline. In fact with all the fuss many church people made over The Da Vinci Code, including plenty of hand-wringing at the Vatican, someone should have told them they were 25 years late, as Dan Brown’s book included relatively few new ideas, as conspiracy theorists had gotten there decades before in numerous books.
Of course the main difference between Holy Blood and the Holy Grail and The Da Vinci Code is that while the latter is very obviously a thriller and a work of fiction, the former is a non-fiction book that claims that what it says is true. However, after The Da Vinci Code became an international publishing sensation, and with a film version in the works, two of the authors of Holy Blood, Michael Baigent and Leigh Teabing, decided to sue Dan Brown for copyright infringement.
The problem then became that while you can protect work of fiction, can you protect something you are claiming is a fact? This is always a very tricky area of copyright law, but in most cases, such as with libel and slander, truth is the best defence. After all, if you’re saying that something actually happened and is historical fact, how can you own the copyright on that? Yet at the same time there has to be some sort of protection. The reason for this is that to uncover these truths (and in the case of The Holy Blood and the Holy Grail, the word ‘truth’ should be put in parenthesis, as while it’s a great conspiracy theory, most of what it posits about Jesus having kids and his bloodline running through the Merovingian dynasty isn’t really tenable), researchers may have spent years digging things out and spending money to find things out. If someone can then just come along and take everything someone else has researched wholesale, without putting any effort in themselves, it’s not really fair and makes it f
inancially untenable for people to continue their studies and find out new things.
Conversely while there is some protection, it’s by no means absolute, as the law allows other to use these new ‘facts’ that have been uncovered, as long as they’re not copying the whole thing, adding nothing new, and claiming it’s their own. Non-fiction isn’t treated the same as fiction in copyright law (although the actual words used in either a non-fiction or fiction book are protected in the same way, the ideas they express aren’t), which made the Da Vinci Code case far more complex than most. Basically Baigent and Leigh would have to prove that not only did Brown get things from their book he couldn’t have got anywhere else, but also that he used the central thrust of premise of their book for it to have broken copyright law.
It’s not like the Brown could claim he hadn’t used the book at all, as one of the characters in The Da Vinci Code, Leigh Teabing, is named after the two people suing him (Leigh being one if the authors’ surnames and Teabing being an anagram of Baigent), and is given a physical description similar to the third author) who didn’t sue) Henry Lincoln. Holy Blood is also specifically referred to in the Brown’s book.
While Brown claimed most of the initial synopsis for book was written before they consulted Holy Blood and Holy Grail, in his judgement, the judge in the case noted that, “In the synopsis for The Da Vinci Code he says it was written long before they bought or consulted The Holy Blood and the Holy Grail. I have considerable difficulties with that statement.
“I cannot accept the book was acquired at a much later time if it is going to be seriously contended that extensive research is gone into before The Da Vinci Code is written. What is extraordinary about Mr Brown's evidence is that he appears to have acquired all of the books that cover this area apart from the one that is described as essential reading.
“The overall position in my view is that the most compelling pointer to the fact that Mr Brown did not use The Holy Blood and the Holy Grail to write the Synopsis is his well-made point that if he had it would have been in the bibliography. “My view is that the book did not feature at that stage, but I am firmly of the view that it was the essential tool for the Langdon/Teabing Lectures which were written at a later stage.”
However the judge was also wary about just how far any judgement he reached would be taken to affect copyright law, especially in a very complex area where fiction meets non-fiction, stating that “There is nothing for example in this case, which if decided in the claimants' favour, would stultify creative endeavour, obtain a monopoly on ideas or historical information or create a precedent which extends the boundaries of copyright protection in sphere of literary works. I believe that their work was genuinely and clearly acknowledged. It is important to appreciate that the claimants do not claim a monopoly in respect of facts or ideas as expressed in The Holy Blood and the Holy Grail.”
While the judge didn’t seem that impressed with either Dan Brown’s evidence (which he described as vague), the non appearance by his wife, Blythe (who did much of the early research for the book), or the Holy Blood writers’ testimony (“Mr Baigent was a poor witness. Those are not my words - they are the words of his own counsel in his written closing submissions. Those words do not in my view do justice to the inadequacy of Mr Baigent's performance”), he did accept that “the majority of the central themes were drawn from The Holy Blood and The Holy Grail in a language sense, but it was not the sole source of Blythe Brown's efforts”.
Despite this, in the end he came down in Dan Brown’s favour, saying “The use of The Holy Blood and The Holy Grail for copying of these generalised parts of the text is not of itself actionable.” His argument was that while some of ideas in The Da Vinci Code were copied from Holy Blood, in order for it to have breached copyright, it would have needed to go further than copy generalised ideas and would have had to have taken Holy Blood’s central theme, premise and structure and essentially added a story to it for it to have broken the law (which is what the authors tried to claim, but which the judge rejected).
While Brown said he was amazed the case had been brought at all and was glad he was vindicated, Richard Leigh commented that “I think by its very nature, this case entailed a conflict between the spirit of the law and the letter of the law. We lost on the letter of the law, I think we won on the spirit of the law, and to that extent we feel vindicated." And you can sort of see his point. If both works were classed as fiction and no one had ever claimed the Jesus’ bloodline conspiracy is true, there’s a very good chance Leigh and Baigent would have won their case, but while the law gives some protection to people who engage in original research, it also protects those who use non-fiction sources for either fiction or further non-fiction, and that’s what prevailed here.
You can see why the Holy Blood writer might have been a bit miffed, because Da Vinci Code does use an awful lot of the ideas from their book, but at the same time, the publicity from The Da Vinci Code saw the sales of Holy Blood skyrocket, and their book sold a hell of a lot more copies than it would have without Brown’s novel. So perhaps in the end it’s a bit of a case of swings and roundabouts, but it does go to show just how complex copyright law is, and how tough it can be to work out what’s been copied and what hasn’t, and that even if it has, whether that’s actually broken the law.
TIM ISAAC
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