Michael Baigent & Richard Leigh v The Random House Group Ltd* (Mummery, Rix, Lloyd L.JJ.; [2007] EWCA Civ 247; 28.03.07)

The Claimants, two of the three the authors of The Holy Blood and The Holy Grail (“HBHG”), claimed that, in writing The Davinci Code (“DVC”), Dan Brown had copied the “Central Theme” of HBHG. Peter Smith J ([2006] EWHC (Ch) 719) held that there was no copyright infringement. On appeal, whilst not agreeing with some parts of the judgment, the Court of Appeal upheld the judge’s decision. All three judges gave judgment.

In approaching the appeal, the Court of Appeal had in mind the guidance of the House of Lords in Designers’ Guild Ltd v Russel Williams (Textiles) Ltd [2000] 1 WLR 2416. The Court of Appeal should practice self restraint, particularly in relation to the issue of whether there has been copying of a substantial part of a work; something which the judge at first instance was in a much better position to assess.

Lloyd LJ summarised the judgment of Peter Smith J in the following terms:

  1. “There is relevant material in HBHG which is also to be found in DVC, namely eleven of the Central Theme elements.
  2. Mr Brown had access to HBHG at the time when he wrote the parts of DVC which included this common material.
  3. Mr Brown based relevant parts of DVC … on material in HBHG.
  4. Nevertheless, what he took from HBHG amounted to generalised propositions, at too high a level of abstraction to qualify for copyright protection, because it was not the product of the application of skill and labour by the authors of HBHG in the creation of their literary work. It lay on the wrong side of the line between ideas and their expression.
  5. In any event (this being the judge’s principal ground for decision) although the relevant eleven Central Theme elements were to be found in both books, the claim depended on showing that the Central Theme propounded was a central theme of HBHG, sufficient to qualify as a substantial part of the work, albeit as a combination of features obtained by abstraction, as described by Lord Hoffmann in paragraph 24 of Designers’ Guild, and this assertion by the Claimants was not justified, because the Central Theme was not a theme of HBHG at all, but rather was no more than a selection of features of HBHG collated for forensic purposes rather than emerging from a fair reading of the book as a whole. The basis of the Claimants’ contention that the Central Theme was a substantial part depended entirely on showing that it was … really the central theme of the book. The judge rejected that contention on the facts. … it was [not] necessary for him to provide any further explanation for his conclusion that, whatever elements (if any) were copied from HBHG, they did not amount to a substantial part of it.”

As the Court of Appeal stated, no clear principle can be found in the case law in order to say how or where to draw the dividing line between the legitimate use of the ideas expressed in a copyright work and the unlawful copying of their expression.

The Court of Appeal rejected the Claimants’ submission that the judge had adopted the incorrect legal test in this case. It was submitted that the judge had required that there be copyright in the Central Theme in order for there to be infringement of HBHG on the basis of a substantial taking of that work.

The Court of Appeal warned that care had to be taken not to blur the distinction between the issues of subsistence and infringement. If a précis of a literary work were put forward as being an abstraction from the work which had been copied in breach of copyright, and if it were found to be a fair summary of the work, then it would be easy to conclude that, by creating the work as a whole, the author had expended time and effort in the creation of something which was fairly represented by the summary. The summary would not itself be the copyright work, but it would properly be regarded as the product of relevant skill and labour. In this case, the judge had held that the Central Theme was not such a summary. It could not therefore be treated as an indirect product of the skill and effort that went into the creation of HBHG. It followed that there was no substantial copying of the original work.

In his judgment, Mummery LJ warned against using potentially confusing expressions such as “textual copying” when trying to describe the nature of copying, although he did not have an objection to calling word for word copying “language copying”.