LawFont.com

The New York Times is reporting on a story by journalist Seth Mnookin that will appear in the forthcoming issue of Vanity Fair about author Lewis Perdue’s lawsuit against Dan Brown. I commented a couple of months ago on Perdue’s loss in the Court of Appeals for the Second Circuit.

The Vanity Fair article is not yet online, but the Times article gives an idea of what it will be about, and has some quotes. After introducing the procedural history, it states that “Mr. Mnookin’s article suggests that Mr. Perdue might have had a valid case, if not a strong legal one. Mr. Mnookin compares the two novels, finding that ‘The Da Vinci Code’ ‘contained a plot, pacing and structure that were very similar to “Daughter of God’s”‘ ,” and continues:

In both books, Mr Mnookin writes, the secret that drives the plot is the proof of the divinity of women in early Christianity, and in both books this truth has been alternately suppressed and protected since biblical times. In both books clues hidden in artworks lead the protagonists on their frantic, dangerous searches. Both books have two story lines that unfold simultaneously, usually in alternating chapters. In both books the main story line focuses on the action-laden quest of the hero and the heroine, while the secondary story line focuses on a shadowy group within the Catholic Church that’s willing to commit murder in order to gain control of the secret.”

Nevertheless, the article also states that Mnookin’s research has led him to believe that, while there may have been copying, it may not be sufficient to amount to a breach of copyright — apparently because the copying was of concepts and plot ideas at a very general level. This is the difficult Zeccola v Universal Studios (1982) 67 FLR 225 area of plot elements: these exist at a higher level of abstraction from the actual expression of them in the script or the movie, which is the thing that copyright protects.

The question usually becomes how specifically the grouping of plot points can be expressed, how closely they can be related to the protected words, and how much of them have been taken. For as Lockhart and Fitzgerald JJ put it: “In general, there is no copyright in the central idea or theme of a story or play however original it may be; copyright subsists in the combination of situations, events and scenes which constitute the particular working out or expression of the idea or theme.”

The article also contains the response from Brown’s publisher: “The verdicts in favor of Dan Brown, in two United States Federal Courts and the British High Court of Justice, speak for themselves. We have no further comment about the Vanity Fair story.”