The plaintiff had written a non-fiction book entitled ‘The Spear of Destiny.’ He claimed infringement of copyright by the defendant in his book of fiction called ‘The Spear’. Both books were centered on a spear exhibited in Vienna, said to have been the lance which pierced Christ’s side on the cross. The allegation was that the story spun by the defendant had leant too heavily on the plaintiff’s work.
Held: The court described the work of the defendant: ‘One must not underestimate the commercial attraction of the rubbish which I have attempted to describe. The book is written with much inventiveness and a racy flow of language and incident and the numerous scenes of violence exercise a strong appeal to certain readers. The Defendants novels have enjoyed great financial success. Mr Herbert does not think of himself as a serious novelist’. The judge went on to discuss the differential analysis of copyright claims involving facts or ideas: Mr. Laddie, for the defendants, rightly says that an author has no copyright in his facts, nor in his ideas, but only in his original expression of such facts or ideas. He submitted that in deciding whether copying is substantial there are four principal matters to be taken into account. First, the volume of the material taken, bearing in mind that quality is more important than quantity; secondly, how much of such material is the subject-matter of copyright and how much is not; thirdly, whether there has been an animus furandi on the part of the defendant . . .’
And: ‘There was a suggestion by Mr. Laddie that some distinction should be drawn in the present case because much of what the defendant copied from The Spear of Destiny was merely information derived by the plaintiff from Dr. Stein. I do not think it matters whether the source of the plaintiff’s book was painstaking research into documented history or painstaking recording and recollection of what Dr. Stein had told him. It was also suggested that a distinction should be drawn on the ground that The Spear of Destiny was, since the death of Dr. Stein, the only possible source of certain of the facts brought to light by the meditation of Dr. Stein. It does not, however, seem to me that the paucity of sources of information excuses the defendant from taking the trouble of assembling his own information and making his own selection of material. If that is not practicable, he can always apply to the plaintiff for a licence’.
Brightman J
[1980] RPC 193
England and Wales
Citing:
Cited – Jarrold v Houlston 1857
The plaintiff had written a work which ‘collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to those questions, . .
Cited – Harman Pictures N V v Osborne ChD 1967
The plaintiffs asserted ownership in the copyright in a reproduction in a film of the book ‘The Reason Why’. There had been abortive discussions about the purchase of rights. The defendants intended to proceed with another production. They claimed a . .
Cited – Pike v Nicholas 1870
. .
Cited – Ladbroke (Football) Ltd v William Hill (Football) Ltd HL 1964
What is substantial copying
The plaintiff alleged copying of their football pools coupons and copyright infringement. The issues were as to the extent of copying required to establish infringement, and whether it was proper to look at the several parts of the work separately. . .
Cited by:
Cited – Baigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Leading Case
Updated: 11 December 2021; Ref: scu.240138
