Da Vinci Code litigation poses the age old question in copyright – to what extent can an ‘idea’ be protected by copyright law

April 2006

Publishing, music publishing, television, film

Litigation between Random House, which published the ‘The Da Vinci Code’ written by Dan Brown and authors Michael Baigent and Richard Leigh who wrote ‘The Holy Blood and The HolyGrail’ some twenty years ago. The third co-author of The Holy Blood is not party to the action. Central to both books is a plot line that Jesus married Mary Magdalene and had children. Baigent and Leigh suggest that a bloodline was founded but kept secret by societies such as the Knights Templar. Brown says that Christ did not die on the cross but survived and started a family – and that descendents still live in France today. Baigent and Leigh argue that there are numerous references to their book in the Da Vinci Code including reference to their own names in a character called Leigh Teabing (Teabing being an anagram of Baigent) who owns a copy of The Holy Blood and The Holy Grail in his library. Brown’s own copy of the Holy Blood was produced in court and Brown was questioned about underlining band annotations but Brown gave evidence that whilst the Holy Bloodwas an excellent source of basic facts on early Christian history he came to the Holy Blood after he had assembled the story line for the Da Vinci Code. Brown said that some ideas came from another book, The Templar Revolution which he freely admits to drawing on as well as other source textx. The High Court action will test the fundamental rules set out inGreen v Broadcasting Corporation of New Zealand (1989) and University of London Press (1916) where Petersen J held that copyright was concerned with protecting the ‘expression of thought’ and not the ‘originality of ideas’. Copyright does not require that an expression must be original – just that it is not copied from another work. It is also impossible to protect historical facts. Ra ndom House will surely argue that The Da Vinci Code drew on a variety of sources and the basic hypothesis of a bloodline from Jesus Christ is just an idea – and therefore not protected in UK copyright law. Whilst Green and University of London are leading authorities it should be noted that the line between what is an idea and what is the expression of an idea is often a very hard line to draw: In 1930 United States Judge Learned Hand pointed out that whilst an author could prevent the use of the ‘expression’ of his ideas he could not prevent the use of his ‘ideas’ to which protection never extended to in the first place. The Judge pointed out that there was no clear line between ideas and the expression of ideas saying that ‘Nobody has ever beenable to fix that boundary, and nobody ever can” and an example of this is Rees v Melville (1916) which suggests that the plot to a play could be protected.

See the Times 25 February 2006

See the Times March 15 th 2006

See Format Fortunes Music Law Updates Articles

Green v Broadcasting Corporation of New Zealand (1989) RPC 700

University of London Press (1916) 2 Ch 601 at 608

Rees v Melville (1916) Mac. CC 168

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