In 2006, two of the three authors of The Holy Blood and The Holy Grail issued a claim of copyright infringement against Da Vinci Code author, Dan Brown. The claimants (Michael Baigent and Richard Leigh) asserted that, in writing six chapters of The Da Vinci Code, Dan Brown infringed their copyright. The trial judge dismissed the case and denied leave to appeal.
However, on approaching the Court of Appeal, the claimants were granted leave. The case then proceeded as Baigent and another v. Random House Group Ltd [2007] EWCA Civ 247; known colloquially as “the Da Vinci Code case”.
What Did the Case Rest On?
As with all cases of copyright infringement, the case rested on two connected questions:
- Is there material in the later work which is also in an earlier work to which the defendant had access?
- Does the copied material form a “substantial part” of the claimant's work?
It is necessary for both of these questions to be answered in the positive for a case of copyright infringement to be made out. However, there is also a third question to answer, which provides the defendant with a possible (but by no means airtight) defence against the charge: has the defendant obtained the material from another source, or through his own efforts?
If so, a claim of copyright infringement may fail despite a “substantial part” of the claimant's work apparently having also formed a portion of the defendant's material.
What is a Substantial Part of the Work?
The definition of what constitutes a substantial part of a work lies in the House of Lords' decision in Designers' Guild Ltd v. Russell Williams (Textiles) Ltd [2001], where Lord Hoffmann ruled that it “can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part.”
To this end, it is possible to infringe copyright on “the original elements in the plot” of a novel without copying a word from it. As Lord Hoffmann stated, “it is an idea expressed in the copyright work” (emphasis added) that gives rise to copyright, not the idea itself; which is mere inspiration.
What Was The Verdict?
The Court of Appeal ruled that Baigent and Leigh had failed to demonstrate that Brown had copied a substantial part of the material in their original book. Because of this, the second question outlined above failed, and no claim of copyright infringement could be made. The court therefore ruled in favour of Random House Group Ltd, the defendants.
The Da Vinci Code case made it clear that in English law it is not enough to have a similar theme to another work, or even to be inspired by it. For plagiarism to occur, a “substantial part” of the original work must have been copied, either in terms of how the work was composed or how its themes were expressed.
In essence, the case has underlined the well-established rule of thumb that “ideas cannot be copyrighted, only their expressions”.
Zoe Kirk-Robinson - Zoë Kirk-Robinson is a freelance writer/artist specialising in legal writing, internet technology and creative writing. She holds a ...
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