Copyright in the Courts: The Da Vinci Code

By Uma Suthersanen

A central principle of copyright is that it protects the expression of ideas and not the ideas themselves. This was at the fore of a high profile court case in the United Kingdom (U.K.) in April. In question was Dan Brown’s worldwide best-seller,

The following account of the case was written for WIPO Magazine by Dr. Uma Suthersanen of the Intellectual Property Law & Policy department of Queen Mary, University of London. Dr. Suthersanen is Chair of the British Literary & Artistic Copyright Association (ALAI-UK), and sits on the Legal Advisory Board of Creative Commons (England & Wales).

The background

The case against the publishers of The Da Vinci Code was brought by Michael Baigent and Richard Leigh, the authors of a non-fiction work, The Holy Blood and The Holy Grail, which was first published in 1982. Messrs. Baigent and Leigh claimed that The Da Vinci Code was an infringement of their copyright in their book.

At the center of the dispute was a ‘hypothesis’ presented in The Holy Blood and The Holy Grail concerning the early Christian legend of the holy Grail. (The theme of the quest for the lost Grail - i.e. the cup, or chalice, used by Jesus Christ at the Last Supper - was a popular theme in medieval tales of chivalry and has inspired countless writers, film-makers and historians through the ages.) The core of the authors’ hypothesis in The Holy Blood and The Holy Grail was that references to the Grail in early manuscripts were disguised references not to the chalice, but rather to holy blood or Sang real, i.e. to the bloodline of Jesus Christ, and to the belief that this bloodline - through marriage between Jesus Christ and Mary Magdalene - had continued and merged with the French Merovingian dynasty.

In their book, Michael Baigent and Richard Leigh argue that the Holy Roman Church and its successors had sought to suppress this bloodline, but that a powerful secret sect, the Priory of Sion, was formed to protect this "grail." Baigent and Leigh used six known ‘indisputable’ historical facts, or supposed facts, though their conclusion was the result of ‘historical conjecture’ based on those facts. This quasi-historical approach was also the basis of various other published hypotheses as to the merging of Christ’s bloodline with the Merovingian bloodline.

Dan Brown is a popular fiction writer, and his book, The Da Vinci Code, has been the number one best-selling novel in Europe and U.S. for months. The Da Vinci Code is a murder mystery. It opens with the death - in Paris’ Louvre museum - of the Grand Master of the Priory of Sion, Jacques Sauniere. Seeking to solve his murder, the heroes of the story are led on a Grail quest, in which they must unravel a series of puzzles based on the history of the Priory of Sion and on the secret behind Christ’s bloodline.

There was no doubt that Dan Brown had drawn on The Holy Blood and The Holy Grail. Indeed, there was a clear and explicit reference to the book in The Da Vinci Code, and the name of one of the characters, Sir Leigh Teabing, was based on an anagram of the names of the two authors.

Key legal issues

The court did not set out any novel legal ideas. Instead, much of the decision was based on the application of established legal principles to the facts at hand.

Baigent and Leigh claimed copyright in the literary work, and alleged that Dan Brown had copied the way in which they had made the sequence of connections of the facts of the merging of the bloodlines. Since there was little copying of the actual text of The Holy Blood and The Holy Grail, the claim was that there had been non-literal copying of a substantial part of their literary work.

The general principle in copyright law is that copyright protects expression and not ideas. Moreover, The Holy Blood and The Holy Grail is an "historical" book, or at least it is comprised largely of historical facts which are unprotectable ideas. Baigent and Leigh based their case, therefore, on the claim that Brown had taken a substantial part of the "manner" in which they had expressed those ideas, as opposed to taking the ideas themselves.

A paradox exists in relation to works based on historical facts: such a work can achieve copyright protection; but subsequent creators can draw on those facts; nevertheless, no one is allowed to appropriate the labor of the original author.

The Judgement

The court held that, while the evidence was clear that Dan Brown and his primary researcher (his wife) had drawn on The Holy Blood and The Holy Grail to a greater extent than Brown had acknowledged, this did not mean that they had infringed copyright in the book. Rather, they had used The Holy Blood and The Holy Grail, and other books, to provide general background material for the writing of The Da Vinci Code.

Significance

The significance of the case for copyright law relates to the fact that the lawyers acting for Baigent and Leigh attempted to make - and lost - an argument that there can be non-literal copying of a work of literature. The non-literal argument has previously been successfully used, usually in the case of computer programs or recipes or knitting patterns.

And finally…

Intriguingly, the judge, Mr. Justice Peter Smith, hid a coded message of his own in the judgment. Using a simple code, including a keyword based on the Fibonacci Sequence employed in the Da Vinci Code, the judge’s message refers to a World War I British admiral. The judge subsequently explained that the admiral was a hero of his, and that the trial coincided with the centenary of the launch of one of the admiral’s ships. Never let it be said that English judges are staid and boring!

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1. Michael Baigent and Richard Leigh v. The Random House Group Limited [2006] EWHC 719