Copyright – Literary work – Infringment – Substantial part – Non-verbal copying – Intention – Animus furandi
The Claimants were 2 of the 3 authors of a work of ‘historical conjecture’ titled The Holy Blood and The Holy Grail (HBHG). The Defendant was the publisher of The Da Vinci Code (DVC), a work of fiction by Dan Brown. Mr Brown admitted that he had referred to HBHG in the course of research but the Defendant denied copyright infringement. The Claimants alleged that the Defendant had copied the “Central Theme” of HBHG. At first instance Mr Justice Peter Smith found that that six chapters of DVC were largely derived from HBHG but rejected the claim of copying – the Claimants had not created a Central Theme as alleged and therefore no such theme could have been copied. The Claimants appealed.
(1) Had the judge misdirected himself by asking whether the substantial part copied must itself be capable of copyright protection as a literary work;
(2) Did the judge take the correct approach in regard to the issue of substantiality?
(3) Animus furandi – is the intention of the copier relevant to liability?
The appeal was dismissed. In the absence of an error of legal principle or unless the decision is plainly unsustainable, the appellate court should not interfere with a trial judge’s decision on the issue of “substantiality”. The judge had been correct to consider whether the Central Theme was the central theme of HBHG (as opposed to one of several), and was entitled to come to the finding of fact which he did. Since there had been no Central Theme to copy and accordingly no substantial part copied, the issue of possible misdirection was irrelevant. The intention of the copier is irrelevant as a matter of law and animus furandi “should not be invoked in the future” (per Lloyd LJ).
Resisting the temptation to design its own cryptic judgment, the Court of Appeal instead provides a clear analysis of the correct approach to cases of this kind. The judgment of Mummery LJ is particularly helpful – setting out a check list of relevant issues in infringement proceedings under the 1988 Act, and further guidance as to the correct approach to “non-verbal” copying: “Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material. It does not, however, extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the Claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about.”