Conan Chitham examines Mr Justice Smith's separation of fact from fiction in the Da Vinci Code copyright case

After three weeks of trial and a further three weeks of deliberation, the judge in the Da Vinci Code trial has at last given us his ruling. The story of the trial and the legal arguments behind it are at least as convoluted, far-fetched and difficult to follow as any of the works of either Michael Baigent and Richard Leigh or Dan Brown.


The Da Vinci Code is Dan Brown's best-selling novel, which claims, among other things, that Jesus married Mary Magdalene, who was a princess, not a prostitute, and who had his children and founded the ancient line of the kings of France. Mr Baigent and Mr Leigh, whose best selling 'factual' book in the 1980s, Holy Blood, Holy Grail, had come to pretty much the same conclusions, claimed copyright infringement, saying that Brown had used the central themes and architecture of their book. To add another twist to the case, the defendant, Random House, is the publisher of both books.


Beyond the headlines, the case is legally interesting, as it raised some important points of copyright law relating to the protection of ideas, and the thresholds for plagiarism and copyright theft. Essentially, how far can copyright law be used to protect ideas rather than their particular expression? This is important, as the works of many authors (or for that matter, those of TV producers, composers and film makers) have come about after being inspired by someone else's, or after researching, reading, hearing or seeing another's work. If this can amount to copyright infringement, then it will have serious implications, particularly if the later work is successful.


Mr Baigent and Mr Leigh argued that their book contained unique and identifiable central themes and a specific architecture. They claimed that Mr Brown's book took a substantial part of their architecture and copied their central themes. To experienced copyright lawyers observing the case, even if there were elements of Mr Brown's book that were closely related to Holy Blood, Holy Grail, this would hardly be surprising. While one claimed to be a factual work, the other was clearly a fictional thriller, utilising within its narrative concepts and ideas found in Holy Blood, Holy Grail as well as in a number of other books in the same vein. Many fiction works are based on or contain elements from pre-existing factual or research-based works. This would not traditionally amount to copyright infringement under English law.


Crucially, important parts of Holy Blood, Holy Grail were not referred to at all, suggesting that the architecture point might not be valid. On the other hand, Mr Brown did not only directly refer to Holy Blood, Holy Grail in his book, but he also made one of his character's names out of an anagram of the surnames of its authors, Mr Baigent and Mr Leigh.


In his judgment earlier this month, Mr Justice Peter Smith rejected the existence of the identified central themes in Holy Blood, Holy Grail and said that even if they did exist, they were of too low a level to be protected. He also rejected the idea of a central architecture. He considered that the themes had been selected and the architecture constructed for the purposes of litigation. He did decide that Mr Brown had used Holy Blood, Holy Grail extensively for the historical expositions given by the characters Langdon and Teabing in The Da Vinci Code; however, he found that even such use did not amount to copyright infringement.


This was a case where the judge found that a number of the factual claims made by the claimants were not made out. In many ways, this case did not offer the opportunity to explore the legal issue of the crossover between unprotected ideas and protected copyright. However, Mr Justice Smith did review the pre-existing case law and his judgment restated the traditional view of copyright in an orthodox way - this clarification should be welcomed at least. In particular, he found that even had there been a central architecture or themes, they were of too low a level to be protected by copyright. This case has not lowered the bar.


A crucial passage of Mr Justice Smith's judgment summed it up as follows: 'It would be quite wrong if fictional writers were to have their writings pored over in the way DVC has been pored over in this case by authors of pretend historical books to make an allegation of infringement of copyright. I accept that if that was allowed to happen it would have a serious impact on writing.'


If Mr Justice Smith had decided that the connection between two books counted as copyright infringement, it would, as the judge tacitly acknowledges, have opened a potential floodgate for claims of theft of ideas. This would have created a due diligence nightmare for publishers, who would have had great difficulty in verifying the true originality of any works based on historical (even pretend historical) or scientific works. The end result may well have been a stifling of this area of the creative economy, certainly within the UK. Books such as Dan Brown's might then have found publishers in the US and mainland Europe while failing to get to publication here as a result.


It would also have had implications in a range of other media - for example, in the area of TV format 'rights'. Although these are actively traded at the international markets, in fact recognising a true legal right in formats (comprised of central themes and architecture) would have made broadcasters' position extremely difficult. How many claims would be made for the rights to the latest hit? In addition, of course, dramas and factual programmes would have suffered from the same rules if they had incorporated ideas from an earlier work in the manner of Dan Brown.


To decide the case this way, Mr Justice Smith would have potentially left a sensible law highly distorted to achieve a purpose for which it was never designed.


It may well be that in this age, where content is king, ideas of all sorts and in all media need more protection - but copyright law itself is not the appropriate solution. Copyright law serves its purpose well. It has dual qualitative and quantitative tests to measure copyright infringement, which have long been established under English law, and it provides wide protection for creators of content, generally based on comparisons of tangible similarities. If there is to be a more general protection of ideas, formats and concepts, this would need to be carefully drafted, as it has the potential to stifle the creativity of writers who fear being accused of stealing ideas. It would need to be thought about by legislators, not just at UK level but internationally, to have significant practical impact.


Mr Brown continues to attract legal action. Not only is there a possibility of appeal in this case, but an ongoing battle with an author in the US also rumbles on. Last week, a Russian art curator threatened to pick up legal cudgels over the claimed theft of his ideas about Da Vinci. It appears as though this show will run and run.


Conan Chitham is a partner in the corporate and commercial department and head of the brands and rights group at London law firm Mishcon de Reya