Potential Impact of The DaVinci Code Case

On March 16th, I blogged about "The DaVinci Code" legal battle being waged in a London courtroom.

The facts of the case are simple: in 1982, three writers collaborated on a non-fiction book called "Holy Blood, Holy Grail" (HBHG). Their premise was explosive. They claimed that Jesus Christ married Mary Magdalene and had a child and that his bloodline survives to the present day with the Catholic church conspiring to hide the truth.

Remember: this book was published by Random House as non-fiction.

In 2003, author Dan Brown published a novel entitled "The DaVinci Code" (TDVC), using many (but not all) of the same themes outlined in HBHG. The book, also published by Random House, became one of the best-selling novels of all time, selling more than forty million copies to date.

Earlier this year, two of the authors of HBHG, Michael Baigent and Richard Leigh, sued Dan Brown in a London court claiming copyright infringement. Arguments are finished and the case now hinges on the judge's decision, which is expected in the next two weeks.

So, what does it all mean? This case is not the stuff of which copyright cases are usually made. Copyright infringement generally refers to someone who cuts and pastes verbatim material belonging to another writer. In this case, Leigh and Baigent claim that Brown stole their "ideas" and their "architecture." But can one steal another's ideas? That's the key to this case.

According to intellectual property attorney Edward Naughton, copyright infringement cases have "never been so abstract as this one." (USA Today)

Part of the plaintiff's problem stems from HBHG's claim to being a NON-FICTION book containing a series of historical facts. Tim Wu, writing for Slate magazine offered the following example to illustrate the uphill battle Baigent and Leigh face:

"Say you write the first article ever saying that John F. Kennedy had Addison's disease (a fact). If the law say that you now own that fact, almost anyone who wants to write about Kennedy's life or illnesses needs your permission. That's a broad right, one that's not just a damper on future scholarship and authorship but possibly a damper on that fact itself--you might, for example, be a Kennedy loyalist who wants to keep his disease secret forever."

Wu explains: "Leigh et al. had a choice: They could have decided to portray their work as fiction, not history...When you, as an author, make a claim to present the truth, you both gain something and lose something. You have a shot at changing what we think to be true, and you may gain reader interest. But you cannot own the truth the way you might own elements of a fictional story, like the character 'Rocky.' To claim the truth is fine, but to own it is not."

The majority of legal experts do not believe that the judge in this case is going to rule that copyright law covers people claiming to own facts. The implications of such a ruling would be devastating.

Lorna Brazell, a copyright lawyer speaking to The Christian Science Monitor, summed it up nicely: "They (Leigh and Baigent) have done this research for their book and are saying these are the facts...The problem is that a fact is information in the public domain and available to anyone who wants to use it for creative purposes."

Stay tuned for the judge's ruling expected in early April.