Abstract: The claimant authors (B) claimed that the novel "The Da Vinci Code" (DVC), which was published by the defendant company (R), infringed their copyright in their book "The Holy Blood and the Holy Grail" (HBHG). B and a third author had spent five years researching HBHG, which was presented as a non fictional book propounding the theory that the bloodline of Jesus had not only survived in France but had merged with the Merovingian bloodline around the fifth century and carried on. The author of DVC (D) and his wife had spent a year conducting research during the writing of DVC, which was a thriller work of fiction also concerning Jesus' bloodline. D and his wife acknowledged that they looked at HBHG before DVC was finished. B claimed that in HBHG they had made a sequence of connections that no one had made before drawing on expertise in a number of diverse areas and that for the first time they had expressed a continuous linkage running from the tribe of Benjamin through the Merovingian dynasty onto the Crusades. B, whilst acknowledging that there was a significant amount of material in DVC that was not derived from HBHG, alleged that D had used the central theme of HBHG as the basis for DVC and had copied a substantial part of HBHG to produce an altered copy or colourable imitation and that in so doing there had been a non textual infringement of the copyright in HBHG. R contended that although D admitted that he had made some use of HBHG in the writing of DVC, he had not copied a substantial part of HBHG nor had he copied the central theme as identified and claimed to exist by B.
Held, giving judgment for the defendant, that HBHG had been genuinely and clearly acknowledged by D and there was much in DVC that was the original effort of D and his wife. There was a point on the copyright protection spectrum where the complexity of the expression warranted protection and the line to be drawn was to enable a fair balance to be struck between protecting the rights of the author and allowing literary development. Where works were composed or compiled from materials that were open to all, the fact that one man had produced a work did not take away from anyone else the right to produce another work of the same kind and in so doing to use all the materials open to him; what he could not do was avail himself of the labour of the first author. The facts, themes and ideas could not be protected, but how those facts, themes and ideas were put together could be, Ravenscroft v Herbert [1980] R.P.C. 193 considered. The central theme proposed by B was not a genuine central theme of HBHG but was an artificial contrivance designed to create an illusion of a central theme for the purposes of alleging infringement of a substantial part of HBHG. Whilst there was evidence that D had copied language from the purported central theme in HBHG, it was not evidence of copyright infringement by substantial copying of HBHG whether textual or non textual as it was too general and the level of abstraction was too low. Although aspects of the purported central themes in both books could be traced through the textual parts identified by B, nothing significant could be concluded from that identification. B had not created the purported central theme as a substantial part of HBHG and that central theme had not been substantially copied by D.