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 defendant acknowledged that the book was a source for the work, but than no copying of anything protected had taken place.
Held: The claim failed.
Peter Smith J said: ‘it is accepted that an author has no copyright in his facts nor in his ideas but only in his original expression of such facts or ideas. Original in that context does not mean novel of course.
Second the purpose of copyright is to protect the skill and labour employed by the Plaintiff in the production of his work.
Third in the case of works not original in the proper sense of the term but composed or compiled from materials which are open to all the fact that one man has produced such a work does not take away from anyone else the right to produce another work of the same kind ‘and in doing so to use all the materials open to him’. What he cannot do however is avail himself of the labour of the Plaintiff.’
and ‘where a book is intended to be read as a factual historical event and that the Defendant accepts it as fact and did no more than repeat certain of those facts the Plaintiff cannot claim a monopoly in those historical facts. It is accordingly perfectly legitimate for another person to contrive a novel based on those facts as otherwise a Claimant would have a monopoly of the facts. ‘
and ‘the facts and the themes and the ideas cannot be protected but how those facts, themes and ideas are put together (this is the Claimants’ ‘architecture’ argument) can be. It follows from this that the Claimants must show that there is a putting together of facts, themes and ideas by them as a result of their efforts and it is that which Mr Brown has copied.’
The claimants had failed to establish a sufficiently clear view of the central theme of their work to say what was supposed to have been copied. There had been some copying. The unexplained absence of the defendant’s wife who could have spoken directly to several issues allowed the court to draw adverse inferences as to the instances at issue, but ‘the use of HBHG for copying of these generalised parts of the text is not of itself actionable.’ The claim failed.
Peter Smith J
[2006] EWHC 719 (Ch)
Bailii
England and Wales
Citing:
Cited – Warwick Film Producers Ltd v Eisinger 1969
Although, in a claim for copyright infringement, the features alleged to have been copied from a work must be a substantial part of the plaintiff’s work, they do not need to form a substantial part of the defendant’s work to found a claim for . .
Cited – Hyperion Records Ltd v Sawkins CA 19-May-2005
The claimant had developed historical musical works for performance. They were published by the defendant, by means of recordings of a performance from the scores he had prepared – so called ‘performance editions’. The many hundreds of hours . .
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
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 – IPC Media Ltd v Highbury-Leisure Publishing Ltd ChD 21-Dec-2004
The claimant magazine publisher alleged breach of copyright by the defendant in their magazine, as to the cover page designs used. It was not clear just which cover was said to have been copied.
Held: The first step in a copyright action is . .
Cited – Green v Broadcasting Corporation of New Zealand PC 18-Jul-1989
Format of TV show not copyrightable
Court of Appeal of New Zealand – The plaintiff had developed the program ‘Opportunity Knocks’ on British television. He claimed copyright in the general structure or format of a similar television programme in New Zealand, and also in passing off. . .
Cited – Elanco Products Ltd v Mandops (Agrochemical Specialists) Ltd CA 1979
The plaintiffs conducted trials to test their new herbicide. When they sold the patented product, they included instructions based, they said uon that research. After the patent expired, the defendants sold a similar product with similar . .
Cited – Ravenscroft v Herbert ChD 1980
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 . .
Cited – Ntinos Karis Claire Kaissides v Lennox Lewis CA 21-Dec-2005
A court may draw adverse inferences from unexplained reasons as to why witnesses who were apparently available when their evidence was crucial to a case were not called. . .
Cited – EPI Environmental Technologies Inc and Another v Symphony Plastic Technologies Plc and Another ChD 21-Dec-2004
The claimant had developed an additive which would assist in making plastic bags bio-degradable. They alleged that, in breach of confidentiality agreements, the defendants had copied the product. The defendants said the confidentiality agreement was . .
Cited by:
See Also – Baigent v Random House and Another ChD 3-May-2006
The court had released a draft of its judgment to the parties under terms as to its use. Journalists on ‘The Lawyer’ had become aware of it, and posted details on its website, in breach of those terms.
Held: Apologies had been made, and the . .
Appeal from – Baigent and Another v The Random House Group Ltd CA 28-Mar-2007
The claimants appealed against a decision that the defendant’s book, the Da Vinci Code, had not infringed their copyright. The judge had found some copying, but not so much that a substantial part had been copied.
Held: Mummery LJ said: ‘In . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 11 November 2021; Ref: scu.240129