Michael Baigent and Richard Leigh, two of the three
authors of The Holy Blood and the Holy Grail claimed "non-textual
infringement in a literary work."
Their case was not that a substantial part of the text of their
book had been
copied; rather, they said that Brown copied "a substantial part of
the work to produce an altered copy or a colourable
imitation," according to Justice Smith's 51-page ruling. The target
of the lawsuit was the publisher of both books, Random House.
Baigent and Leigh acknowledged that copyright should not protect
against the borrowing of an idea contained in a work. But they
argued that their book made a sequence of connections that no-one
had made before. Among them, that the Holy Grail was a metaphor for
Mary Magdalene rather than a mere artefact. Mr Brown copied this
conjecture, they said, along with other key points 15 in
total – that formed the 'Central Theme' lifted by Mr Brown.
Had Baigent and Leigh won, Justice Smith observed, nothing in
the case would "stultify creative endeavour, obtain a monopoly on
ideas or historical information or create a precedent which extends
the boundaries of copyright protection in the sphere of literary
works."
He reasoned that the claimants sought to create discussion with
their book and intended that discussion to manifest itself in other
books. And Justice Smith described their decision to attack only
Brown's 43-million-selling DVC – as it became known – as odd.
Justice Smith felt Brown had "genuinely and clearly"
acknowledged HBHG. Brown used an anagram of the two authors' names
for a villain he called Sir Leigh Teabing. At one point the
character removes a copy of HBHG from a shelf and says: "The
authors made some dubious leaps of faith in their analysis, but
their fundamental premise is sound."
Baigent and Leigh thought Brown had taken too much of the
Central Theme – but the ruling suggests they failed to articulate
the meaning of the Central Theme. "The point is that if the
Claimants do not know with certainty what their Central Theme is
how can anybody else possibly know?," wrote Justice Smith.
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 added later, "It must be shown that the
architecture or structure is substantially copied."
But the only structure identified by the Claimants were the 15
points of the Central Theme. "A single textual theme has no
structure; it is just a piece of text which is the way the
Claimants ultimately suggested the Central Themes should be
considered."
He continued: "The Claimants themselves in this case chose to
dissect their Central Themes ultimately into 15 component parts.
Having done that in effect they invited the Defendants to attack
those component parts on an individual basis. This is not
dissection as such in my view; it is a matter of responding to how
the Claimants chose to present their case."
Justice Smith described as "incredible" the fact that the
Claimants had difficulty formulating their own Central Theme – when
they had also claimed that it was always in their minds when they
wrote their book.
On the witness stand, Brown denied that he had a copy of HBHG at
the time of preparing a synopsis for DVC. Justice Smith did not
believe him. "What is extraordinary about Mr Brown's evidence is
that he appears to have acquired all of the books that cover this
area apart from the one that is described as essential reading,"
wrote Justice Smith. On another point he observed that Brown
"looked like he was making the answer up."
He criticised the defence for not calling Brown's wife to the
stand who did the research for the books. "All of this could have
been clarified had Blythe Brown given evidence," he wrote. He
suspected that Blythe Brown had used HBHG extensively much earlier
than Dan Brown admitted.
The judge was even less impressed by Baigent. His own counsel
described him as a poor witness in closing submissions; but Justice
Smith said "those words do not in my view do justice to the
inadequacy of Mr Baigent's performance." His "wild" evidence was
"comprehensively destroyed" in cross examination, he noted.
Justice Smith reasoned that, since the Claimants argued that
without the Central Theme there is very little in HBHG, it follows
that if overall the Central Theme cannot amount to any literary
work because it is too general or too low a level of abstraction or
because it is a collection of facts and ideas without any
architecture or structure then the same must be said of HBHG which
is allegedly copied. "The Claimants cannot avoid the consequences
of their submission and the way the case is presented," he
wrote.
"Equally it seems to me that if I reject their submission that
the Central Theme as put by them is the Central Theme of HBHG it
cannot be said that even if Mr Brown copied it that he has thereby
copied HBHG or a substantial part thereof."
And later: "It seems to me … that the Central Theme is not a
genuine Central Theme of HBHG and I do no (sic) 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," he wrote. "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."
Drawing on other cases, Justice Smith observed: "When a book is
put forward as being a non fictional book and contains a large
number of facts and ideas it is always going to be a difficult
exercise in trying to protect against copying of those facts and
ideas because as such 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."
Justice Smith dismissed the Claimants' action.
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."
He added: "Had the judge found in favour of Baigent and Leigh,
it would have gone against the premise of copyright laws and sent
shockwaves throughout the legal and literary worlds."
Pointing out that copyright protects the expression of an idea,
not the idea itself, Curtis added, "Brown didn't infringe copyright
in the earlier book, he just created a new expression of its
idea."
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.
