The Court of Appeal upheld the High Court decision in relation to the alleged copyright infringement of the non-fictional book, “The Holy Blood and the Holy Grail”, by the novel, “The Da Vinci Code”, despite the Court’s criticism of the trial judge’s decision.

The Court held that some of the material in the Da Vinci Code was copied, but that it did not amount to a substantial part of “The Holy Blood and the Holy Grail”. The Court’s decision was based on the dividing line between ideas and expression. It held that the material copied was on the ideas side of the dividing line and was at too high a level of abstraction to amount to a breach of copyright.

On the question of substantiality, the Court highlighted the fact that The Copyright, Designs and Patents Act 1988 does not define "a substantial part", or even indicate what factors were relevant to substantiality. It considered that a judgment had to be reached by careful attention to the facts of each particular case.

The Court also considered the intentions of Dan Brown but deemed this irrelevant as a matter of English copyright law and indicated that it should not be raised in future cases.

The case is useful in that a non-exhaustive checklist for considering copyright infringement cases has been summarised by the Court. This will give invaluable guidance for legal practitioners in future copyright infringement cases.

The claimants have now been left with a substantial legal bill in the region of £3m. However, in the light of the increased exposure to the claimants’ work there is every possibility that increased sales of their book will substantially offset the legal bill.
Michael Baigent and Richard Lee v The Random House Group Limited, 28 March 2007.