April 7, 2006

"My recommendation is that you never embark upon a trial of that nature."

Says Michael Baigent, who is suing the publisher of Dan Brown's "Da Vinci Code," for stealing the "thematic architecture" of his nonfiction book, "The Holy Blood and the Holy Grail." It must have been hard to look at all that money Brown's been making and to know there was some connection to your book, but Baigent deserves to lose, seems likely to lose, and will have blown £2 million attempting to cash in on Brown's success:
Fiona Crawley, a copyright expert with the law firm Bryan Cave LLP, agreed: "A victory for Leigh and Baigent would make it very difficult for novelists, particularly historical novelists. They go to source books to research the history to incorporate into their novel.

"It would call into question how they can research a historical novel without being accused of copyright infringement by the historian who has written the key work on that incident in history."

UPDATE: The judge rules in favor of Dan Brown. Baigent loses. Excellent!
In issuing his judgment, Justice Peter Smith said that Mr. Brown did indeed rely on "The Holy Blood and the Holy Grail" in writing a section of the book, but he said that Michael Baigent and Richard Leigh, the two authors of earlier book, had failed to prove what the central theme of their book was and thus failed to prove that Mr. Brown had lifted it from them.

In fact, the judge said, the earlier book "does not have a central theme as contended by the claimants: it was an artificial creation for the purposes of the litigation working back from 'The Da Vinci Code.' "


Richard Dolan said...

In the US, copyright traditionally only protected the form in which an idea was expressed, not the substantive content of the idea itself. In that sense, no one can obtain a copyright on any historical event, just the particular form of words (or other graphic forms of expression) used to describe it.

I was puzzled by the UK proceedings against the Da Vinci Code, since there was no claim of copying in that sense. Instead, the claim was that basic historical "themes" -- i.e, the idea of the bloodline of Jesus/Mary Magdalene, and its supposed suppression by a clerical cabal -- had been copied. Since the matter proceeded to a trial on the merits, I assume that UK law on this point is broader than US law. It's odd that the Brits would accept that regime, although it is of a piece with their expansive libel/slander laws that also result in the suppression of expression.

While it's highly doubtful that a copyright claim of that sort could possibly succeed under US copyright law (putting aside whether any state's common law copyright law might apply), the Brits have a pretty expansive view of the jurisdiction of their courts in these kinds of cases. So for publications released in or otherwise reaching the UK, it appears that American authors have to be wary of these kinds of expansive copyright claims just as they must be careful about British libel/slander claims (same caution would apply to bloggers as well, I would imagine). The saving grace in the Brit system is the rule that the "loser pays" both sides' attorneys' fees -- under that rule, I assume that Baignet and his co-plaintiff will now be socked with an enormous tab for the defense by Random House and Brown. That's a pretty powerful deterrent, but only applies if the defendant has the ability to fight (and win) on the merits in a British court. Good luck.

bearbee said...

Thank you for that explanation/clarification on copyright.
I was baffled over the suing of an idea, particularly when core ideas are used repeatedly by any number of writers in various media.

I have not read either book but heard that "The Holy Blood and the Holy Grail" is the better.

Ehud Blade said...

Ditto on the thanks.

I'm curious. The side-bar note on blogging and libel/slander really attracted some wild runs of my imagination.

I note that the connection is admittedly somewhat a guess ("I would imagine").

That said, will the potential for blogging to precipitate libel/slander litigation really take the fresh flush off the blogging rose?

In connection with previous threads on this particular blog, specifically regarding attempts at hijacking blogs for partisan political wagon-circling (prompted by the NYT article, posted here), and otherwise given the lovable/hatable nature of raw primal exclamations often made on blogs, and given the spontaneous rhythms of their grace and grind, I wonder if any potential chilling effects on blogging (chilling from the prospect of anticipated defamation) would really chill the more literate bloggers who might otherwise let it rip, primal and raw, or who might otherwise post even subtle parody that need saying?

And what about the tons of fun?

Will blogs become a T.S. Eliot "Waste Land," but barren of redemption?

I know that's overstated. But, at least I had fun.

And I'm sorry I somewhat redirected the focus of this thread away from copyright and onto defamation. But, there it is. Back to re-integrating the two, I'm really ignorant and would like to know what it might mean mean concretely for a publication in the form of a blog to be "otherwise reaching the UK?"

Does that mean that a blog posted, say on this website, or say on any website outside of the UK, amounts to a blog that "reach[es] the UK" only when a British reader clicks on a link here or elsewhere?

Or, does the mere posting of a blog in this multi-server massively parallel cyberspace cosmos itself qualify as "otherwise reaching the UK?"

These kinds of questions, of course, are fractal in nature, and unlimited in number. I'd guess

Not to consume the energies here often spent in delightfully playful parodies by swapping out the fun for technical-legal analyses .. do you know of any blogs seriously dealing with defamation?

Bye-the-bye, I understood Richard's excellent blog so well (again, thanks), that I'm going to copy and paste it as my very own .. somewhere.

And I ain't sharing the millions I make off it. My today's "Da Vinci Code Horoscope" and combo psychic reading says that today's my special, one day window, with holy grail blood on my side, that I can get away with whatever crime ...

Ducking and running for now ...

grape_crush said...

bearbee said...

I have not read either book but heard that "The Holy Blood and the Holy Grail" is the better.

It is. I had to make up the term 'speculative history' to describe it to other people, though...Whereas Brown's book is fiction, with some controversial religous subject matter thrown in as plot devices.

Having read both books, I'd like to offer my non-legal opinion and say that, while the two share common ideas, they are different books.

Wade_Garrett said...

Richard - great post. This lawsuit struck me as ridiculous, but then I'm accustomed to thinking about copyright in terms of American law. Suing on the grounds that you created a particular interpretation of historical events offends me as a historian.

I've read both books, and, to be honest, I like the Da Vinci Code better. Its not Faulkner, and some of the characters are a big cliched, but the plot is interesting and he does an excellent job of working historical detail into his fictional story. Holy Blood, Holy Grail is a tough book to evaluate. It details some truly brave and creative primary research, creating new "dots" which can be connected to create a coherent story. However, the book contains so many hypotheticals: "its not unreasonable to suggest that" or "this might have happened" or "though we have no evidence, these two people lived in the same place at the same time and would likely have known each other." It is a gret piece of "historical journalism," but ultimately its value is more like the Oliver Stone movie JFK: it throws a lot out on the table for people to think about, but one would be foolish to accept its conclusions.

The Cranky Insomniac said...

I have no doubt that the court's ruling was correct, even by the stringent standard of British copyright law. But lost in all this is the irrefutable fact that the central theme of "Da Vinci" - that Mary Magdalene and Jesus were married and had children, and that the Holy Grail refers to their line of descendants - was, in fact, ripped off, stolen, borrowed, or whatever term of art you want to use, from "Holy Blood, Holy Grail."

I remember reading "Da Vinci" when it first came out, before anyone had really heard of it, and thinking that large parts of it seemed really familiar. And when Brown himself mentioned "Holy Blood" about halfway through the book, I had an "aha!" moment: I had, in fact, read "Holy Blood" many, many years before and it was sitting on my bookshelf. I started thumbing through it, and it seemed like it was all there - the bloodline of Jesus, the Priory of Sion, the Merovingians, etc. And I remember thinking, "man, this guy lifted this whole book."

Baigent and Leigh's problem may be that they presented their book as non-fiction. Had they labelled it fiction (which would've been more accurate anyway), I wonder if Brown would've been legally able to write "The Da Vinci Code." Maybe he would have - I'm certainly no expert on copyright law. But I suspect at the very least he would've had a harder time proving his case.

I've got nothing against Dan Brown and I think "The Da Vinci Code" is a great read. (Although I do hold him responsible for the rash of similarly themed books that have come out since, some of which are good, but many of which are absolutely awful. Yes,I'm talking to you, Steve Berry.) And the silly thing about this lawsuit is that Baigent and Leigh should be on their knees genuflecting before Brown for all the money he must be making them. While "Holy Blood, Holy Grail" was a bestseller when it was originally released, I can only imagine how many copies have been sold in the past couple years because of "The Da Vinci Code."

Those of you that want to read a far superior book with somewhat similar subject matter should check out Theodore Roszak's novel, "Flicker.""Flicker" is billed as a "secret history of movies," and ties together the invention of moving pictures with an ancient Gnostic heresy. After being out of print for awhile, it's recently been reissued to capitalize on the fact that Darren Aronofsky (writer-director of "Pi" and "Requiem for a Dream") is adapting it for the big screen.

The Cranky Insomniac said...

bearbee said...

I have not read either book but heard that "The Holy Blood and the Holy Grail" is the better.

Allow me to respectfully disagree with grape_crush. 'Da Vinci,' whatever its faults, is fast-paced and exciting, while 'HBHG' is, IMHO, a bit boring. And I don't mean boring because it's "non-fiction," I mean boring as in not very well written. I'm not saying it's not worth a read, if the subject matter interests you, but I'm not sure it'll keep you up at night.

SippicanCottage said...

My Sweet Lord...

grape_crush said...

The Cranky Insomniac:

Allow me to respectfully disagree with grape_crush.

Hey, we're allowed.

'Da Vinci,' whatever its faults, is fast-paced and exciting.

Don't get me wrong; I enjoyed TDC, but it didn't leave the impression that HBHG did...I read HBHG first, so there wasn't a sense of discovery for me.

while 'HBHG' is, IMHO, a bit boring.

Heh. That's an understatement. HBHG book is a tough slog...Put me to sleep on a few nights. But I learned about a few things that I didn't know before...Not that I necessarily believed everything, mind you...Still, I found it interesting.

Richard Dolan said...

ehud blade asks: "I'm curious. The side-bar note on blogging and libel/slander really attracted some wild runs of my imagination.

I note that the connection is admittedly somewhat a guess ("I would imagine").

That said, will the potential for blogging to precipitate libel/slander litigation really take the fresh flush off the blogging rose?"

I didn't intend to sound quite that vague. The risk of being subject to suit in a British court for allegedly libelous material posted on the web is not entirely theoretical. Rachel Ehrenfeld -- a contributor to Commentary, and a prolific writer of books and articles on the subject of the sources of funding for Islamofascist terrorism -- lives and writes in the US, but also maintains a website where she regularly posts articles on that subject. She was sued in the UK by a Saudi sheik allegedly for having slandered him in writing (in the US) about the sources of funding for terrorist activities. I believe one of the bases for the assertion of jurisdiction in the UK was that her allegedly libelous articles were available in the UK via the internet. While that rule may expose bloggers to jurisdiction in faraway forums, it is that a particularly radical extension of the basic notion that a libel occurs wherever the libelous statement is uttered (orally or in print) or repeated. Ehrenfeld has filed a countersuit against the sheik in the US District Court in Manhattan, seeking to establish, inter alia, that any judgment that may be rendered in the UK against her cannot be enforced in the US because of fundamental public policy reasons (First Amendment, etc.). (Any of you law students or professors out there looking for an interesting moot court problem, you might want to take a go at this one!)

There is a defense committee that has tried to help Ehrenfeld raise the considerable funds needed to defend herself in the UK, and I don't know whether she ultimately decided to defend on the merits or default and try to block enforcement here of any UK judgment via her action in the SDNY.

There were obvious reasons unrelated to the merits why the Saudi sheik decided to target Ehrenfeld in a UK court. The practical risk that a blogger on some other, less charged topic might face suit in the UK over matters that would clearly be protected in the US is undoubtedly small, but it's not zero.

Ehud Blade said...

Richard, thank you, again.

Thanks especially for your note on the case of Rachel Ehrenfeld. A new one for me. I'll follow it along as best I can.

No need to reply again (unless you'd like) to this added note.

The fact that Ehrenfeld writes political commentary, at least in part via the web, goes straight to the heart of my overly-windy lead-off question about potential chilling effects, specifically on political bloggers, and especially on competent ones.

You wrote: "The practical risk that a blogger on some other, less charged topic might face suit in the UK over matters that would clearly be protected in the US is undoubtedly small, but it's not zero."

A direct answer. And clear. Thanks.

As a tag on your note quoted immediately above, and on your note that this subject might merit moot court attention, I'm thinking that this question could be of interest also to sociologists of law attempting statistical measures of differential effects of such laws, that is, to learn what empirical data reveal about how these laws affect real-life interactions and participation on the net. By differential effects of these laws, I mean especially how data would correlate roughly to the very way that you framed your legal observations. For instance, figures like Ehrenfeld could be sampled from a data pool including others, say more casual bloggers, for whom a reasonable legal opinion would predict an "undoubtedly small" likelihood of litigation, with the entire sample pool analyzed for things like actual, real-life chilling effects.

As a practical matter, the fact that Ehrenfeld has supporters fashioning a defense fund seems hopeful. If she risks default in Britain, and puts all her hope in barring enforcement of the default here, then maybe she reduces the likelihood that her case in Brittan is considered a precedent, either way, affecting other competent and noteworthy web commentators, since it's not a judgment on the merits. But if she loses both the default there and the defense on policy grounds here, so the default gets enforced, then what a messy phantasmagoria of a potential precedent for other U.S. authors.

RC said...

I think Baigent really took advantage of the the Da Vinci Code to propel his name and book and that this book is ridiculous.

--RC of strangeculture.blogspot.com

Christy said...

I've a life-long love of tales of secret societies and have gobbled up books about St. Germain, Templars, and the like. I'm sure I heard the Jesus and Mary Magdalene married with children stuff from a variety of sources at least 20 years ago. It has been over a decade since I read it, but I'm fairly sure Eco's Foucault's Pendulum (a work of fiction which mocks true believers of such stuff) has the whole Merovingian dynasty discussion. Maybe Eco could bring a successful suit. Anyhow, my bottom line is that this stuff appeared in fiction long before Holy Blood/Holy Grail

bearbee said...

"I think Baigent really took advantage of the the Da Vinci Code to propel his name and book...."

I think I heard that book sales have gone from 3500 annually to 7000 weekly.

If sales continue he should have a few pennies left over after defense costs.

#15 on Amazon. Da Vinci #4. In the top 25 there are 7 books that have something to do with God and/or religion

Alan Kellogg said...

Saying that "Holy Blood, Holy Grail" is better than "The Da Vinci Code" is like saying that drowning in goose crap is preferable to drowning in duck crap.