Da Vinci Code newsflash

In case you missed this morning's update on the IPKat's post on Monday, the Court of Appeal for England and Wales has today dismissed the appeal of Michael Baigent and Richard Leigh against the decision of Mr Justice Peter Smith to dismiss their copyright infringement claim against Random House in the Da Vinci Code case (see earlier IPKat posts here , here , here and here). The ruling in full, leading with the judgment of Lord Justice Lloyd, is available on BAILII [2007] EWCA Civ 247.

More comment on this lengthy decision will follow. This note confines itself to citing, without further discussion, the words spoken by Lord Justice Mummery at paragraphs 131 and 132 in his concurring judgment:
"As Lord Reid observed in Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 WLR 273 at 277, you can reach a wrong result in a copyright case by dividing up the original copyright work into separate parts and then asking whether the separate parts standing on their own could be the subject of copyright. In my judgment, this criticism of the destructive dissection of the original copyright work is as valid when considering the issue of infringement as it is when considering the issue of subsistence of copyright discussed by Lord Reid in that part of his opinion.

The point is so fundamental to the proper conduct of copyright litigation that it needs to be spelt out. On the issue of subsistence it is wrong to divide up the whole copyright work into parts and to destroy the copyright in the whole work by concluding that there is no copyright in the individual segments. Similarly, on the issue of infringement, it is wrong to take the parts of the original copyright work that have been copied in the alleged infringing work, to isolate them from the whole original copyright work and then to conclude that "a substantial part" of the original copyright work has not been copied because there was no copyright in the copied parts on their own".
Da Vinci Code newsflash Da Vinci Code newsflash Reviewed by Jeremy on Wednesday, March 28, 2007 Rating: 5


  1. Thank you for Monday's early warning update and this post. I was able to read the cases and do a post myself, as an Australian specialist in book publishing law. There are no relevant substantive differences between the relevant copyright law in Australia and England. My post is titled "Why the authors who sued The Da Vinci Code lost twice" (http://www.dilanchian.com.au/content/view/242/56/)

  2. Your article is interesting but I feel the supposition that Bagient and Leigh might have been more successful if their book had been a work of fiction is possibly mis-placed. You state that copying of non-fictional works is easier to demonstrate but isn't this due to the nature of the content in many non-fiction books? To borrow words from Peter Smith J, copying is identifiable because it is "in effect the only way in which [those ideas] can be expressed". However, this reasoning surely does not really apply to a novelistic work of non-fiction like HBHG which is not written in the same way as a work such as a text book?

    Any thoughts?

  3. Thank you anonymous for grappling with the core supposition in my post and 1993 article. I'll focus on your note that the plaintiffs' book was a "novelistic work of non-fiction". Though I'm being repetitive, my response is: (1) a novelistic work of non-fiction must have a substantial part of its expressions copied for copyright infringement to arise; (2) the nature of lengthy non-fiction works makes infringement action typically less likely to succeed compared to works of fiction (for reasons I've written on briefly in my post and article); and (3) the likelihood of success in a copyright action for a novelistic work of non-fiction is limited to the extent it is non-fiction and helped to the extent it is novelistic.


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