Baigent & Anor v The Random House Group Ltd (The Da Vinci Code)

Copyright protects the author’s original expression, including the skill and labour involved in selecting, arranging and presenting material. It does not protect facts, historical information, general ideas or themes at an excessive level of abstraction. In a non-textual infringement claim, the claimant must identify the features said to have been copied and show that they form a substantial part of the copyright work. The relevant assessment concerns the importance of the alleged copying to the claimant’s work, not its importance to the defendant’s work. A chronological sequence of generalised facts and ideas, without a sufficiently definite structure or architecture, is not protectable expression.

The claimants, two of the authors of The Holy Blood and the Holy Grail (“HBHG”), alleged that The Da Vinci Code (“DVC”), published by the defendant, reproduced a substantial part of HBHG. Their case centred on a fifteen-point “Central Theme”, said to express the original structure and development of HBHG and to be reproduced in DVC. The defendant accepted copyright in HBHG as a whole but denied that the Central Theme existed as pleaded, that it was protectable expression, or that a substantial part had been copied. The principal issues were whether the Central Theme was expressed in HBHG, whether it was capable of copyright protection, and whether it had been substantially reproduced in DVC.

1. The claim was dismissed. The court held that the pleaded Central Theme was an artificial construct created for the litigation. It could not be identified from reading HBHG as a cohesive central statement, and substantial portions of HBHG were omitted from it.
2. Copyright protects original expression and the skill and labour involved in its creation. It does not confer a monopoly over facts, historical information, ideas or general themes. The relevant protection lies in the way such material is selected, arranged and presented.
3. In a non-textual infringement claim, the claimant must identify the alleged copied features and establish that they constitute all or a substantial part of the copyright work. Substantiality is assessed qualitatively by reference to the importance of what was taken to the claimant’s work. It need not constitute a substantial part of the defendant’s work.
4. The alleged Central Theme consisted largely of generalised facts and ideas. Its only identified structure was a supposed natural chronological order, which was too general and indefinite to amount to protectable architecture or design. The principal idea—the merger of Jesus’s bloodline with the Merovingian line—was itself too abstract.
5. The court accepted that material and some language from HBHG had been used in preparing later parts of DVC. That use did not amount to copying a substantial part of HBHG. The similarities were generalised and low-level, and the alleged Central Theme was not a protectable part of the work.