Anna Pasternak v Lara Prescott

Copyright protects original expression, including the original selection, arrangement and compilation of research material, but it does not protect historical facts, ideas, themes or commonplace details. In selection cases, the claimant must identify the material said to have been copied, establish that it expresses the author’s own intellectual creation, and prove copying of that material or a substantial part of it.

Substantiality is qualitative. Similarities must be assessed through a fair comparison of the works as a whole or of the relevant passages. Excision of differences may create an artificial appearance of copying, particularly where authors use common historical sources. A translation may itself be protected where the translator made sufficient creative choices. A quotation defence requires fair dealing and sufficient acknowledgement, unless acknowledgement was impossible.

Anna Pasternak, author and copyright owner of Lara: The Untold Love Story That Inspired Doctor Zhivago, sued Lara Prescott, author of the historical novel The Secrets We Kept.

The Selection Claim alleged copying of the selection, structure and arrangement of historical events from specified chapters of Lara. The Translation Claim alleged indirect copying of an English translation of the Accusation Act from Légendes de la rue Potapov, reproduced in Lara.

The central issues were whether the alleged selections and translation were protected works or substantial parts, whether copying occurred, and whether the quotation defence under section 30(1ZA) of the Copyright, Designs and Patents Act 1988 applied.

1. Selection Claim dismissed. The court accepted that copyright could subsist in the claimant’s original selection, structure and arrangement of events, even though much of the underlying material had been taken from sources such as A Captive of Time and The Zhivago Affair. The selected material was capable of expressing the claimant’s own intellectual creation.
2. The court formulated the inquiry as: what material was said to have been copied; whether that material expressed the claimant’s own intellectual creation; and whether the defendant copied it. Any copied part had to be a qualitative substantial part. The court rejected a purely quantitative approach.
3. The comparison had to be full and fair. The claimant’s selection schedules isolated alleged similarities while omitting substantial differences and intervening events. This amounted to the danger identified in IPC Media v Highbury as similarity by excision. The common use of historical sources and the basic chronology of real events did not establish copying.
4. The relevant chapters of the two books were fundamentally different in genre, structure, style, narrative perspective and arrangement. The defendant used A Captive of Time and The Zhivago Affair as primary sources and Lara only as a secondary source. Occasional details, phrases or commonplace expressions taken from Lara did not support copying of its protected selections.
5. Translation Claim succeeds. Copyright subsisted in the English translation of the Accusation Act. Although the translation was short and involved a low level of originality, the translator made creative choices in vocabulary, grammar and structure. The defendant indirectly copied it through the quotation reproduced from Lara.
6. The quotation was fair dealing under section 30(1ZA)(b). It was short, used in a non-competing historical-fiction context, and taken in good faith. However, the defendant failed to provide sufficient acknowledgement. It was reasonable to expect her to inquire into the authorship of the English translation, and acknowledgement was not impossible for practical or other reasons. The section 30(1ZA) defence therefore failed.
7. The Selection Claim was dismissed. The Translation Claim succeeded. Relief, the counterclaim and consequential matters were reserved for further submissions.