Sunday, October 10, 2010

A Case for Copyright

By Mark W. Danielson

Certainly, the most important aspect of writing is for an author to register his or her work with the Library of Congress. Doing so copyrights your work and, in theory, protects you from infringement and plagiarism. The process has never been easier since it can be accomplished on line at: For a mere thirty five dollars, your work is instantly protected. Your confirmation letter will come via snail mail.

But make no mistake about it, a copyright is not a guarantee. The high-profile case of author/Claimants Michael Baigent and Richard Leigh versus author Dan Brown and powerhouse publisher Random House proves this. You see, Baigent and Leigh had filed a non-textual infringement suit against Random House claiming that Brown’s The Da Vinci Code was inspired by their non-fiction book, The Holy Blood and the Holy Grail (HBHG). The law suit eventually made its way to the high courts where it was heard before Justice Smith. Unfortunately, this case didn’t bode well for the Claimants. Here are some excerpts from Justice Smith’s 51 page report and the OUT-LAW News report on Why The Da Vinci Code Lawsuit Failed. (10/04/2006)

While Baigent and Leigh acknowledged that copyright should not protect against the borrowing of an idea contained in a work, they argued that their book consisted of a sequence of connections no one had previously made. Among them was that the Holy Grail was actually a metaphor for Mary Magdalene rather than a physical artefact. According to the Claimants, Dan Brown copied this conjecture along with 15 other key points that formed The Da Vinci Code’s “central theme”.

Justice Smith accepted that "the facts and the themes and the ideas cannot be protected, but how those facts, themes and ideas are put together … can be." He later added that, "It must be shown that the architecture or structure is substantially copied."

Drawing on other cases, Justice Smith observed, "When a book is put forward as being non-fictional and contains a large number of facts and ideas, it is always going to be a difficult exercise in trying to protect against copying those facts and ideas because they cannot be protected. It is the effort and time that has gone into the way in which those ideas and facts are presented that is capable of protection."

Later, Smith added, "It seems to me … that the Central Theme is not a genuine Central Theme of HBHG and I do not accept that the Claimants genuinely believe it as such. In my view, it is an artificial contrivance designed to create an illusion of a Central Theme for the purpose of alleging infringement of a substantial part of HBHG."

The one central theme that Justice Smith did identify in HBHG was the merger of the Merovingian bloodline with the Royal Bloodline of Mary Magdalene. "As such, it is self evident in my view that is an idea which is of a too general level of an abstraction to be capable of protection. Nor is there any architecture or design in HBHG if that were the theme which can be said to have been appropriated. The Claimants simply do not reveal how they came to their idea or conjecture as they prefer to call it. It not being revealed, it cannot be appropriated."

Lee Curtis, an intellectual property specialist with Pinsent Masons, the law firm behind OUT-LAW.COM, said the ruling came as "no surprise to lawyers and authors." Pointing out that copyright protects the expression of an idea, not the idea itself. Curtis added that, "Brown didn't infringe copyright in the earlier book, he just created a new expression of its idea."

Now, here’s the kicker: As a result of this law suit, Baigent and Leigh face paying their own legal costs plus 85% of Random House's legal costs. Their total bill has been estimated by The Times at £2 million. Clearly, there was no divine intervention in this case. I don’t know about you, but I certainly can’t afford this expense.

So, what can authors learn from this? That a copyright can protect you from infringement, and that your chances of winning a suit against someone who you perceive has created a smilar novel is slim. Interestingly, this has happened to me twice now. First, in my novel whose central theme paralleled the movie Swordfish. In this case, I chose not to seek publication because I may have been accused of infringement, even though my copyright was registered long before the movie came out. Second, a year after my Diablo’s Shadow novel was released, another book was released with a strikingly similar plot. Here, I chose to ignore it.

The bottom line is authors can certainly have similar thoughts, and as such, can create similar stories. What sets them apart is the author’s ability to convey their thoughts in a thoughtful and entertaining manner.


Mark Troy said...

You're right about authors having similar thoughts. I heard an editor at a writer's conference a couple years after DaVinci Code say he was tired of receiving stories about collecting Christ's DNA off the Shroud of Turin. I had never thought of that, but it seems I'm in a minority.

Sun Singer said...

The HBHG/Da Vinci Code case was, indeed, an interesting one. Those who gained the most mileage out of it tended to be reviewers, critics and historians who hated Brown's book. As the suit went forward, they could say, "see it's not only bad, it's stolen goods.

I read HBHG before the Da Vinci Code was published. I couldn't help but note the similar ideas, but never though infringement could be proven.

When it comes to copyright, I am more interested in it giving me leverage if somebody re-publishes all or part of my work rather than writing a novel which seems to be too close for comfort.


Mark W. Danielson said...

Mark, it's a wonder what modern science can do. The Shroud of Turin has been one of the most debated artifacts in history. I've seen plenty of programs on it and it still leaves you wondering. I hope whatever tests are done are never conclusive.

Malcom, I'm with you. The copyright process is so simple now, there's no excuse why anyone would not send their manuscript in. I must admit I don't copyright my magazine articles, even though they tend to pay more than books. I can't offer any reason other than I'm too lazy.

Morgan Mandel said...

I've heard there are no truly original ideas. Yes, it's how we present them that counts. And I wonder - if someone mentioned an idea to an author and the author wrote a book about it, would it really be infringement? People are always saying they should write a book, but many of them don't and act like there's nothing to it.

Morgan Mandel

Jean Henry Mead said...

Great article, Mark. I've been plagiarized so many times that I now consider it flattery. I received an advertisement last week from a hotel fifty miles away that had used two paragraphs from my Casper Country book, word for word. When I wrote complaining, they changed a few words here and there and sent it out again. It's just not worth the hassel to try to sue thehm.