Reference:  EWHC 719 (Ch);  FSR 44;  EMLR 409; (2006) 29(5) IPD 29039
Court: High Court, Chancery Division
Judge: Peter Smith J
Date of judgment: 7 Apr 2006
Summary: Copyright - Literary Works - Non-Textual Copying - Infringement
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Instructing Solicitors: Orchard Brayton Graham LLP for the Claimants; Arnold & Porter (UK) LLP for the Defendant
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. Dan Brown admitted that he had referred to HBHG in the course of research but the defendants denied copyright infringement. A considerable amount of the underlying research had been carried out by Blythe Brown, the author’s wife who did not give evidence. It was alleged that DVC infringed the copyright in HBHG by the copying of the ‘Central Theme’ of the original work. The Central Theme relied on was an itemised list of 15 characteristics of the work. No literal textual copying was relied on by the Claimants.
(1) Was the Central Theme of HBHG copied by Dan Brown in DVC?
(2) Was the Central Theme a substantial part of HBHG?
Dismissing the claim:
(1) copyright did not protect ideas at a high level of abstraction. HBHG did not have a Central Theme as contended for by C. The Central Theme was created by working backwards from DVC; (2) in any event the themes did not form a substantial part of HBHG; (3) the reasons given for not calling the author’s wife as a witness were not credible. Following Lewis v Eliades  EWCA 1627, the court was entitled to draw adverse inferences from the absence of crucial witnesses who were apparently available to give evidence. However, Blythe Brown’s evidence was not crucial to the question of copyright infringement.
An interesting judgment in a high profile case that essentially turned on its facts. The judgment does contain an analysis of relevant case law including Sawkins v Hyperion Records; Designers Guild v Russell Williams; IPC Media v Highbury Publishing and Ravenscroft v Herbert. However, rather disappointingly, it adds little to the existing law concerning non-textual copying. Of particular interest is the court’s willingness in principle to draw adverse inferences from the failure of a party to call a crucial witness without proper explanation for her absence.