Sunday, February 26, 2006

Fiction and Fact

Jim Davila mentions an article in the London Times warning that The DaVinci Code film could be delayed over the lawsuit Dan Brown is facing from the authors of Holy Blood, Holy Grail. Jim wonders:

"Let me see if I have this straight. The author of a silly novel is being sued by the authors of a bogus 'nonfiction' book because the author used their bogus ideas? It's true that rubbish writing is copyrighted, but rubbish ideas? I'm not a lawyer and I know even less about British copyright law that American, but I cannot see how this case can have any merit. Arrangements of words are copyrighted, but ideas (and one of Brown's characters even credits Baigent's and Leigh's book in the novel) are not. If you violate copyright when you cite someone else's work and use their ideas (but not their words) for your own work, then all scientists and scholars would be in trouble."

This has been the irony all along. Here's an except from the review by Laura Miller I cited a few days ago (though I didn't cite this part):

"This puts both Brown and the authors of Holy Blood, Holy Grail, in a tricky position. Baigent et al. have always maintained that the 'facts' supporting their theories are available to any dedicated scholar and that the theories themselves, while unconventional, have been seriously entertained by other 'experts'...

"Since Holy Blood, Holy Grail presents itself as nonfiction, it has been in its authors' interest to downplay how much of it is invented. However, if the 'research' and ideas in Holy Blood, Holy Grail are not the original creations of the book's authors, they become harder to copyright, and the possible infringement suit against Brown might be weakened. No one, after all, has a copyright on the facts surrounding Abraham Lincoln's assassination or the Treaty of Versailles...

"For Brown's part, it's to his advantage to insist that the farrago of lies and misrepresentations used to prop up the conspiracy theory in The Da Vinci Code (and, originally, in Holy Blood, Holy Grail) is part of the historical record or at least in general circulation..."

So here we have it: to the scholars Dan Brown pleads fiction, and please stop bothering him for his historical inaccuracies and wild revisionist fantasies; to the litigants and attorneys he pleads non-fiction, and please understand that he can use Baigent's ideas as legally as Anne Rice uses Tom Wright's. In any case, the authors of Holy Blood, Holy Grail haven't a leg to stand on, nor, for that matter, any shame.

UPDATE: Attorney Stephen Carlson weighs in on his blog, and in comments below.


Blogger Stephen C. Carlson said...

I commented about this aspect of the The Da Vinci Code on AKMA's blog (Oct. 30, 2005).

Basically, there's a reason why the suit was filed in the UK--it would never fly in the US, although it had once been tried. In Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980), the plaintiff, a historian of the Hindenburg disaster, sued a movie studio for basing a movie on his theory that the explosion was caused by the sabotage of a particular crew member. Hoehling lost, however, because the court held that his historical interpretation is not covered by copyright. Thus, in the US, it does not matter whether Baigent et al.'s ideas or fiction or legitimate historical interpretation because, either way, US copyright law does not cover them.

In the UK, however, there's supposedly a legal theory of "misappropriation of work product" or some such (I am not a UK attorney) that is the basis of the suit. I don't know about that law to intelligently comment on the merits of the case.

From a policy standpoint, however, it is clear that the Holy Blood authors are not content with the fact that the Da Vinci Code put their book back on the best seller list--they want a piece of Brown's action and they are plowing their increased royalties into their barristers to get more of it. Every time there is a runaway success in the literary world, scores of people come out of the woodwork seeking a piece of the action. Malleable copyright doctrines (in this in the UK, not the US) only encourages this kind of wasteful behavior. I'm glad the US got the policy right in this example.

Blogger Loren Rosson III said...


Thanks for clarifying. I was going to ask my father (who is an attorney) about this too. You write:

in the US, it does not matter whether Baigent et al.'s ideas or fiction or legitimate historical interpretation because, either way, US copyright law does not cover them

(I trust "are" is intended in place of "or".) You're saying that if Baigent et all had put their ideas in the form of a novel instead of the "scholarly" venue, Brown would be still be free to use their ideas without acknowledgment?

Blogger Stephen C. Carlson said...

As far as copyright is concerned, acknowledgement is irrelevant--whether someone copied the expression of an idea (e.g. how it was told, not what was told) is what is important.

Well, for fiction, it is possible to be liable for "non-literal" copying if one uses characters that are sufficient distinct and original (think, Ricky). Plots, however, are not generally protectable by copyright.

Blogger Stephen C. Carlson said...

Who's "Ricky" you may ask? I meant Rocky (Balboa).

Blogger Loren Rosson III said...

Thanks Stephen. Reason I ask is that novelists of historical fiction don't necessarily acknowledge the sources of the academic theories they're using (though some do as a courtesy). But I wasn't sure what a novelist could get away with in using "non-fact" material.


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