Creating stories: do all writers reinterpret and retell?

The Times, Law 14 March 2006

Two books on the life of Christ may redefine the law of copyright, reports Alex Wade

Dan Brown’s The Da Vinci Code may prove to be more than the novel that made his fortune.  In a development that is unlikely to have been part of his literary game plan, The Da Vinci Code could also, thanks to the current High Court proceedings before Mr Justice Smith, be as notorious not merely for the money it has made its author, but for the way in which it redefines the law of copyright. 

Brown’s publisher, Random House, is being sued by Michael Baigent and Richard Leigh, two of the three authors of an historical work published in 1982 entitled The Holy Blood and the Holy Grail.  The third author of The Holy Blood, Henry Lincoln, has not joined the suit, and by way of the kind of curious twist beloved of Brown, a different division of Random House is the publisher of The Holy Blood.  The key claim by Baigent and Leigh is that Brown infringed their copyright by using the “architecture” of The Holy Blood in his own block-buster. 

Random House and Brown deny the claim, but there is no denying its ramifications if Baigent and Leigh prevail.  A victory for Baigent and Leigh would be “calamitous,” according to the novelist Julian Barnes, whose Arthur and George is on the best-seller lists.  All writers research, retell and reinterpret ideas, Barnes told The Christian Science Monitor: “This is how a writer instinctively operates.  It's just the same as if you've been told a story by a friend or something happens in your family. It's all fair game.”

Fair game it may be, but matters take on a more serious hue in the High Court.  In The Holy Blood, Baigent and Leigh argued that Jesus Christ survived crucifixion and escaped to France to sire a dynasty with Mary Magdalene; it is this hypothesis which, they say, forms the overriding “architecture” of their work, only to be ‘lifted’ by Brown.  In essence, therefore, the claimants are seeking to extend the law of copyright into uncharted waters.  The legal maxim that “there is no copyright in an idea” is being tested, just as, in televisual media, there have been successive attempts to claim format rights in reality TV shows. 

Random House’s lawyer, John Baldwin, told the High Court that Baigent and Leigh were seeking "to monopolize ideas at such a high level of generality that they are not protected by copyright."  While Brown has acknowledged the use of many and diverse sources in The Da Vinci Code, even, it is suspected, crediting Baigent and Leigh via the creation of an anagrammed character Sir Leigh Teabing, many lawyers agree that the claimants have some way to go before they win their argument.

As Antony Gold, Head of Contentious Intellectual Property at Eversheds, says: “Cases involving copyright infringement are notoriously difficult to prove.  The claimant needs to show clear examples of similarities and often has to narrow these down to specific incidents where an idea has been directly copied.  The author, Dan Brown, has won previous cases of alleged copyright infringement and the High Court case may face significant challenges.” 

For Caroline Kean, a media law expert with Wiggin LLP, the Dan Brown case is illustrative of trends in publishing generally: “A publisher must have in mind not only 'traditional' risks such as libel and copyright, but the new privacy rights including what is being referred to in the last year as 'false privacy'. Add to that the Courts' increasing recognition of intellectual property rights in formats and the arrangement of ideas, and it is little wonder that publishers are finding themselves on the receiving end of legal claims.  While there is no suggestion that this is the case with Baigent and Leigh, there must be occasions where the sums generated blockbusters such as The Da Vinci Code or the Harry Potter books are so enormous that a claimant feels it has to be worth trying to get a slice, even if it is only as a result of a pragmatic settlement.” 

A cynic might also point out that in the wake of the publicity accruing from the High Court trial, The Holy Blood’s sales received a healthy shot in the arm.  Online bookseller Amazon reported that sales rocketed by 3,500% the day the trial began.  Given that damages for copyright infringement are to compensate a claimant for income that he would have earned but for the infringement, it is difficult to see Baigent and Leigh securing much by way of damages, should they win.

It remains to be seen whether the court will uphold Baigent and Leigh’s argument.  Were they to prevail, ours would be a literary landscape whose innate intertextuality is denied, one in which writer’s block will be less a product of the creative process and more because of the fear of being sued.