What The Da Vinci Code tells us about Copyright

In 2006, Random House Group, publishers of Dan Brown’s incredibly successful novel The Da Vinci Code, found themselves at the centre of a major lawsuit for alleged copyright infringement. Two of the authors of The Holy Blood and The Holy Grail (the third author declined to take part in the suit) brought a case against the Da Vinci Code publisher over the similarity between their own work and six chapters of the 2003 novel.

At trial, the judge found in favour of Random House and denied the HBHG authors leave to appeal. However, the authors were able to convince the Court of Appeal to hear the case on the grounds that the trial judge (who famously inserted a ‘code’ of his own into his judgment) has misdirected himself on the law he was to apply in the case. Consequently, Baigent and another v. Random House Group Ltd [2007] EWCA Civ 247 was heard in the Court of Appeal the following year.

What Constitutes Copyright Infringement?

For a copyright infringement case to be made out, two important factors must be proved. Firstly, the claimants must show that not only does the defendant’s work contain material that is also in the claimant’s earlier work but that the defendant had access to this earlier work while, or before, they created their own work.

In the case of The Da Vinci Code, it is clear that Dan Brown had indeed had access to The Holy Blood and The Holy Grail; and even went so far as to include the names of two of the book’s authors as the name of a principle character in the book.

The second factor that must be proved was more difficult in the Da Vinci Code Case, however. In order for copyright infringement to occur, the material appearing in the later work must form a “substantial part” of the earlier work. To understand what will be regarded as a “substantial part” of the work, we must look at an earlier case.

The Definition of a Substantial Part of a Work

In Designers’ Guild Ltd v. Russell Williams (Textiles) Ltd [2001], the House of Lords considered the question of what constitutes a “substantial part” of a copyrighted work. Here Lord Hoffmann ruled that a “substantial part” can be a wide-ranging concept, stating: “can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part”.

From this it can be seen that the overarching plot of a novel is unlikely to be a “substantial part” of a work, but original elements in it may be. Taking a well-known example, the concept of a band of rebels fighting against an evil empire will likely not be a substantial part of a copyrighted work; but the concept of the Jedi as warrior monks with amazing powers would.

To quote Lord Hoffmann again: “it is an idea expressed in the copyright work” that defines what is, and is not, a “substantial part”. The key word here is not the idea but its expression. Star Wars has a similar plot to many other works throughout history, but how it expresses that plot is what makes its copyright enforceable.

The Verdict

The Court of Appeal examined the case in detail before ruling that the claimants had failed to prove their case on the second factor. Because they were unable to prove that the six chapters of Brown’s novel contained anything that could be classed as a “substantial part” of their own work, there was in fact no case of copyright infringement to answer.

The Da Vinci Code case is one of many plagiarism and copyright infringement cases in English law but it holds a significant place in the law because it brings together all the factors required to prove such a case in one location. Following this ruling it can be said that English law requires more than for a work to have a similar theme, or even be inspired by, an earlier work and that copyright infringement requires a substantial part of the original work to be reproduced, in terms of how the work is composed and the expressions of its themes.

In short: it is not enough to use the same ideas; it is their expression that counts.

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