The Da Vinci Code decision: Baigent and Leigh v Random House

Amidst a blaze of publicity usually reserved for the most scandalous libel cases rather than painstaking literary copyright claims concerning esoteric historical theories, the High Court on Friday dismissed claims by Michael Baigent and Richard Leigh, two of the authors of The Holy Blood and The Holy Grail (HBHG), that the author Dan Brown infringed their copyright in his novel The Da Vinci Code (DVC).

The background to the case is so well known that it hardly needs repeating. DVC has been more than a hit, it’s been a publishing phenomenon. It was first published in the US in March 2003 and sold 40 million copies in its first year alone.

DVC is based around the intriguing idea that Jesus was married to Mary Magdalene, they had children, his bloodline has descended down to this day via the Merovingian dynasty, and this is the “Holy Grail”.

HBHG, published in 1982, was itself a best seller, but not of the same order as DVC. Described by its authors as a work of “historical conjecture” it is a non-fictional work representing the fruits of five years of detailed research. It includes what the judge accepted was their original idea that the Jesus bloodline merged with the Merovingian bloodline.

For whatever reason, and this itself has been a matter of widespread speculation, Baigent and Leigh took exception to the reliance in DVC on some of their ideas and ended up suing its publishers Random House (also, as it happens, the publishers of HBHG) for copyright infringement. Dan Brown was not joined as a defendant, but was clearly in the dock himself and appeared in court to give detailed evidence as to his own research and the extent to which he relied, or didn’t rely, on HBHG.

The central problem the claimants faced was that ideas and historical facts are not protected by copyright. This is a universal principle of copyright law: copyright protects the original manner in which ideas are expressed, not the ideas themselves. DVC contains some copying of the actual words of HBHG, but this was very minor and there was no suggestion that it amounted to infringement in itself. This claim was not about the copying of text. What Baigent and Leigh asserted was that Brown copied the way in which their facts, themes and ideas are put together (what they called their “architecture“).

To put flesh on this the claimants produced a document setting out 15 points comprising the “Central Theme” of HBHG. Point number 7, for example, is this: “Towards the end of the 5th century, Jesus’ bloodline intermarried with that of the royal line of the Franks. From this union, there issued the Merovingian dynasty.” Some of the 15 points in their Central Theme are more detailed than this, some less.

The claimants argued that HBHG expresses this Central Theme (in chronological order), that without the Central Theme there is very little to be found in the book, and that the same Central Theme has been reproduced in DVC. The Central Theme is the “bridge” between the two works by which Brown substantially copied the literary work HBHG in his own work DVC.

Mr Justice Peter Smith, having read and re-read both works and listened to days of painstaking evidence about Dan Brown’s research methods, was not impressed by this argument. His conclusions were as follows:

  1. The Central Theme as such simply isn’t present in HBHG. There is a lot more to HBHG than the points identified by the claimants as the Central Theme. If there is a Central Theme it is the merger of the Merovingian bloodline with the Royal Bloodline of Mary Magdalene. This idea is “of a too general level of abstraction to be capable of protection“. The Central Theme was “an artificial creation simply to provide a platform for the present litigation“. The conclusion the judge drew was that “the Claimants started with DVC to find things in it and worked backwards from that exercise to create the Central Theme in HBHG rather than identifying the Central Theme in HBHG and seeing whether it was to be found in DVC.”
  2. Even if the claimants were right about their Central Theme, it was “merely an expression of a number of facts and ideas at a very general level“. This would not justify being protected from copying. The fact that these ideas were presented in chronological order was of no significance. “What other order could there be?
  3. It therefore followed that Brown was perfectly entitled to copy the claimants’ themes, and those themes did not in any event amount to a substantial part of HBHG.

Authors and publishers breathed something of a sigh of relief when, as expected, the claim was rejected. The judge has applied existing principles of copyright law which will continue to make it difficult for writers of non-fictional works to stop other writers from drawing upon their work (as opposed to lifting it word for word): “When a book is put forward as being a non fictional book and contains a large number of facts and ideas it is always going to be a difficult exercise in trying to protect against copying of those facts and ideas because as such they cannot be protected. It is the effort and time that has gone into the way in which those ideas and facts are presented that is capable of protection.”

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.