Baigent and Leigh v The Random House Group Ltd

Facts
The Claimants were 2 of the 3 authors of a work of historical conjecture titled The Holy
Blood and The Holy Grail (HBHG). The Defendant was the publisher of The Da Vinci Code
(DVC), a work of fiction by Dan Brown. Mr Brown admitted that he had referred to HBHG in
the course of research but the Defendant denied copyright infringement. The Claimants alleged
that the Defendant had copied the Central Theme of HBHG. At first instance Mr Justice
Peter Smith found that that six chapters of DVC were largely derived from HBHG but rejected
the claim of copying the Claimants had not created a Central Theme as alleged and therefore
no such theme could have been copied. The Claimants appealed.

Issue
(1) Had the judge misdirected himself by asking whether the substantial part copied must itself
be capable of copyright protection as a literary work;
(2) Did the judge take the correct approach in regard to the issue of substantiality?
(3) Animus furandi is the intention of the copier relevant to liability?

Held
The appeal was dismissed. In the absence of an error of legal principle or unless the decision is
plainly unsustainable, the appellate court should not interfere with a trial judges decision on
the issue of substantiality. The judge had been correct to consider whether the Central Theme
was the central theme of HBHG (as opposed to one of several), and was entitled to come to the
finding of fact which he did. Since there had been no Central Theme to copy and accordingly
no substantial part copied, the issue of possible misdirection was irrelevant. The intention of
the copier is irrelevant as a matter of law and animus furandi should not be invoked in the
future (per Lloyd LJ).

court of Appeal confirmed on March 28, 2007, the first degree decision in the case for copyright
infringement filed by the authors of Holy Blood, Holy Grail against the publishers of The Da
Vinci Code. Indeed, one of the three appeal judges was more favourable to Dan Brown and its
publishers than first degrees Judge Smith, and concluded that only a part of Holy Blood, Holy
Grail was used in The Da Vinci Code (only 10 of the 14 points considered in the first degree as
the central theme of both books). However, all judges concurred both that there is a casual
link between the two books and that there is no copyrights on ideas expressed in a work which
claims to be a book of history such as Holy Blood, Holy Grail. Under British copyright law, a
novelist has the right to use the information included in an (alleged) work of history when this
information is differently expressed, collected, selected, arranged and narrated as is typical of a
novel. The judgement confirms both that the ideas of The Da Vinci Code are in large part taken
from Holy Blood, Holy Grail, and that ideas per se (what continental copyright law calls
the corpus mysticum of a work, as opposed to the corpus mechanicum, i.e. their arrangement) are
not copyrightable, and ideas expressed in an (alleged) work of history can be freely borrowed
and re-arranged in a work of fiction.