Copyright infringement or 'drawing on history'?

The case currently being heard in the High Court in London raises interesting issues about plagiarism, copyright and literary originality. The authors of The Holy Blood and the Holy Grail, Michael Baigent and Richard Leigh, are suing Dan Brown's publisher, Random House, for infringement of copyright (see News Review 14 November 2005). They claim that their 1982 bestseller put forward theories about Jesus surviving the cross, marrying Mary Magdalene, going to France and starting a bloodline which survives to this day.

Dan Brown has been highly successful in turning these ideas into a page-turning thriller, The Da Vinci Code. A very large amount of money is involved, as more than 30 million copies have been sold worldwide and the book has been translated into 40 languages. What is widely expected to be one of the biggest films of the year, based on the book and starring Tom Hanks, Audrey Tatou and Sir Ian McKellan, may well be affected by the outcome of the case.

The authors of The Holy Blood and the Holy Grail, if they win, will presumably be trying to get a settlement which will give them as much of Dan Brown's millions as possible. Sales of their book increased 3,500% in the 48 hours after the court case started. Their lawyer, Jonathan James, claimed that: 'The authors' historical conjecture has spawned many other books that developed aspects of this conjecture in a variety of directions. But none has lifted the central theme of the book.'

As Magnus Linklater says in The Times: 'Both their books are essentially baloney - made-up versions of the past, mixing occasional facts with bare-faced invention, apparently passing themselves off as some form of hidden truth. Their success owes less to the strength of their narrative or the richness of their prose than to the widespread belief, which they have done little to undermine, that they have disinterred a secret history, covered up by the Church for hundreds of years...

'This then must be the dilemma for those who seek to defend their own versions of made-up history: they can only sue and win if they can demonstrate that their ideas are fictional, invented and therefore entirely their own property. If, on the other hand, they succeed in proving that their research is genuine, and their investigations firmly based, then they have made a signal contribution to history - a history that belongs to us all.'

Conan Chitman, a copyright specialist, said: 'This case, if it goes in favour of The Holy Blood and the Holy Grail, could open a floodgate of litigation for people who have had their ideas, as they see it, stolen by more successful people.'