Nonfiction

The Associated Press is taking great pains to support Dan Brown in his defense against the copyright infringement lawsuit leveled against him by Michael Baigent and Richard Leigh, two of the three authors of Holy Blood, Holy Grail.

The very well-named Jill Lawless, the AP reporter who brings us the story, tells us the suit is for copyright infringement, but doesn’t tell us why this is important. She reports on Brown’s testimony in part by saying the “courtroom [was] packed with journalists, religious skeptics and fans” – a phrase her editor somehow failed to strike for its inordinate redundancy.

For a court reporter, Lawless seems remarkably unfamiliar with the legal issues involved. For instance, she takes pains to note that Holy Blood, Holy Grail claims to be “nonfiction” while also telling us “Random House lawyers argue the ideas in dispute are so general they are not protected by copyright.” Indeed, she takes the time to directly quote Brown’s primary defense, “‘I'd never heard of it until I'd seen it mentioned in some of our other research books,’ he said…
Brown's court appearance also revealed a complex and wide-ranging research process undertaken with wife Blythe Brown, whose interest in ‘the sacred feminine,’ Brown said, led to one of The Da Vinci Code’s key themes.’”

Now, let’s take the Lawless article on the law apart piece by piece.

Baigent and Leigh claim their book is non-fiction. But they do not sue Brown for plagiarism; they sue him for copyright infringement. How can this be?

While fiction is subject to copyright law, facts are not. If I wrote a novel based on the James Bond character created by Ian Fleming, for instance, I would be violating Ian Fleming’s copyright, and his estate could sue me for copyright infringement. Fiction is copyright-protected. However, if I wrote a story about the life of William Jefferson Clinton, ex-President Clinton could not sue me for copyright infringement. I might get sued for libel (the written version of slander) if I mis-stated the facts, but that is about it. He cannot copyright the facts concerning his own life.

Now, let’s say you took existing information or discovered new factual evidence and provided a totally novel interpretation of the facts of his life, thereby completely explaining why Slick Willy has women problems and feels our pain. You wrote an outstanding article or book concerning this idea, but it failed to gain wide circulation. I saw your theory and based my biography of Clinton on your interpretation without giving you any credit. Have I violated your copyright?

Not at all. I am a plagiarist, but I haven’t violated your copyright because you have no copyright on facts either. All you’ve done is come up with a new theory that covers the facts – and I stole it without accreditation. But I don’t need to accredit you. After all, I could have looked at the facts myself and independently arrived at the same conclusion through simple logical analysis, and you would have a hard time proving otherwise.

In any case, while I may be dead guilty of plagiarism, and you may well be able to prove it, the most you can do is (justifiably) ruin my sterling reputation by proving I’m a plagiarist. You can’t recover monetary damages from me for plagiarism because plagiarism is only a crime when I’m stealing fictional material or lifting direct and lengthy quotes from your factual material without in any way acknowledging that you wrote it.

Plagiarism is not a crime if I’m stealing facts. It may not be wise, but it isn’t a crime. That’s why journalists get fired for plagiarism, but they rarely get sued for it, while novelists and playwrights sue for plagiarism but only as the basis for proving copyright infringement. Inventions can be copyrighted. Facts cannot be copyrighted.

Baigent and Leigh aren’t suing for plagiarism. They are suing for copyright infringement. They do not allege that Brown lifted whole passages of their book verbatim. Instead, they are suing on the basis that Brown stole their "jigsaw puzzle," the fictional facts upon which he built a fictional plot.

Random House, the publisher of both novels, implicitly acknowledges this. Note, Random House doesn’t argue that the suit should be thrown out because Baigent and Leigh are meticulous researchers who had not an ounce of fiction in their work, thus copyright law doesn’t apply. Instead, Random House argues that the ideas are so generally in use they cannot be copyrighted.

If copyright existed during the life of the Brothers Grimm, a similar defense would have been used. "Your Honor, while it is true that the Brothers Grimm used the character of the stepmother who is secretly a wicked witch in many of their tales, the idea is so general to works of this type that the plaintiff who is suing our esteemed authors cannot be said to have originated the idea.” It’s fiction, Judge, but it’s fiction that is so common everyone has used it.

And, lest anyone read the one-sentence summary of the Random House defense and begin to suspect, the reporter-ette then goes on to re-emphasize that Brown, Baigent and Leigh engaged in research, dammit! After all, Brown’s wife, a learned art historian, is so professional that she couldn’t get any of the art history right. Indeed, she couldn’t even get Leonardo’s name right (no art historian calls him ‘da Vinci’, since that refers to the geographical region he comes from, it is not properly part of his name). Indeed, Brown’s historical and theological research was so complex and time-consuming that essentially every aspect of it was wrong by the time it got into his novel.

Random House, Baigent, Leigh, and Brown are all interested in conducting and concluding this copyright infringement lawsuit without anyone realizing that the very fact of the lawsuit demonstrates the whole thing is an advertising setup for the May 19, 2006 movie release. Brown’s novel is three years old. It couldn’t get on Drudge or CNN without it. Reporters, aka religious skeptics and therefore Dan Brown fans, undoubtedly know this. However, they also know what sells papers, so they aren’t going to give us the facts either.

In short, the Brown-Baigent-Leigh lawsuit is like a Stalinist show trial, but the only thing that gets murdered in this one is the truth.