Barry Eisler

Thursday, April 13, 2006

Origins of the Frivolous Da Vinci Lawsuit

I'm pleased that Da Vinci Code (DVC) author Dan Brown prevailed in the frivolous copyright infringement suit brought against him by Michael Baigent and Richard Leigh. Baigent and Leigh, the authors of "Holy Blood, Holy Grail," claimed that Brown had stolen the "architecture" of their book in writing his blockbuster DVC -- that is, their theory that Jesus and Mary Magdalene had a child, and that their bloodline survives to this day. For a summary of how hard the court slapped B&L down, click here.

As a former copyright lawyer, I was surprised that B&L's case was even allowed to proceed beyond what in the US is called summary judgment (where, essentially, you get tossed out of court for a meritless claim), but I don't know the UK system. What I do know is that copyright protects expression, not ideas, and that B&L's invention of the word "architecture" in a copyright context was a cheap attempt to distract the court from their lack of a legal claim.

What makes B&L's behavior doubly reprehensible is that Brown went out of his way to thank them in DVC, actually mentioning their book in the text of his own. And that B&L's book, a bestseller when it was published in 1982 but subsequently largely forgotten, became a bestseller again precisely because of Brown's gracious mention in DVC.

The good news is, the court denied B&L's request for an appeal and ordered them to pay 85% of Brown's publisher's legal fees (which could come to a couple million dollars). Still, you have to wonder: how do people bring such baseless lawsuits? How can two people who Brown brought fame and fortune be so ungrateful? Here's my novelist's answer:

B&L read DVC and feel ripped off because Brown obviously took their "Jesus and Mary Magdalene" theory and turned it into a mega-blockbuster.

B&L find a lawyer and say they want to sue. The lawyer advises them that they don't have a case because copyright law doesn't protect theories or other ideas, only expression. But, but, but...

Dan Brown made $70 million last year. He's a busy guy. Maybe he'll settle to make us go away. If he doesn't, we'll probably lose. And we'll have to reimburse him for, say, $2 million in legal fees. But... how do those Mastercard ads read? "Legal fees... $2 million. Publicity for B&L's book just before the worldwide release of the DVC movie starring Tom Hanks and publication of the mass market paperback... priceless."

So there you have it. Two men who Dan Brown made rich and famous decided that they wanted to be even more rich and more famous, and that the way to achieve it was to sue their benefactor, try to smear his reputation, and waste the public's time and money, just to get their names back in the media. And the sad thing is, it probably worked. When I checked on Amazon a few days ago, their book was #16. They'll sell even more copies when the DVC movie comes out in May.

BTW, the book's third author, Henry Lincoln, didn't take part in the suit. My guess is that he has a sense of shame, and some integrity. His coauthors have neither.
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23 Comments:

Blogger Mark Terry said...

I'm with you on this Barry. I felt it was frivolous. My extremely limited knowledge of copyright and patent law involves biotechnology, but I was quite puzzled by the lawsuit on the basis that the novel was infringing on a supposed nonfiction book (with theories that are remarkably unprovable).

I'm not sure if this is actually true, but in the British legal system, if you lose a lawsuit you file aren't you automatically required to pay for the legal fees of the people you sued? I don't know if that's actually an urban legend, but I've read it as one reason why there are fewer frivolous lawsuits in the UK than in the US.

Best,
Mark Terry
www.mark-terry.com

Thursday, April 13, 2006 12:47:00 PM  
Blogger Sandra Ruttan said...

It would seem that Mr. Brown's troubles are not over yet:
http://www.timesonline.co.uk/article/0,,13509-2129945,00.html

CSI NY "borrowed" a crime from one of Mark Billingham's books. I've seen Mark asked about that repeatedly, and heard his 2 cents on it. You don't see him filing a lawsuit.

Can't feel too sorry for Dan Brown, though. All the free publicity the lawsuits generate will inspire more people to see the movie or read the book. Although I won't be one of them. I have no interest in TDC.

Thursday, April 13, 2006 12:50:00 PM  
Blogger Sandra Ruttan said...

"I'm not sure if this is actually true, but in the British legal system, if you lose a lawsuit you file aren't you automatically required to pay for the legal fees of the people you sued?"

This is true in Canada.

Thursday, April 13, 2006 12:52:00 PM  
Blogger Brett Battles said...

Barry, couldn't agree with you more. I think your analysis of the motivations is exactly right, and it's a damn shame, too. I was also wondering about the third author...how I would have hated to be in his position.

Great blog, Barry. Completely enjoying the topics and discussions.

Thursday, April 13, 2006 12:59:00 PM  
Blogger E. Ann Bardawill said...

No many people are aware of this, but the DVC is really a giant anagram. Once it's unscrambled correctly and read backwards it is, in actual fact, a verbatim transcript of some of Ron Jeremy's best work.

Like, it took me a whole weekend to figure it out.

Thursday, April 13, 2006 1:21:00 PM  
Blogger Jim Winter said...

Anyone notice DVC and the mass market edition of HOLY BLOOD, HOLY GRAIL are by THE SAME PUBLISHER?

Yes, kids, Bantam Dell is owned by Random House, who's legal fees are getting paid by the plaintiffs.

Most likely by taking a smaller cut of HBHG's sales.

Nobody's crying over this one except maybe the judge who wishes he'd tossed the case early on.

Thursday, April 13, 2006 1:42:00 PM  
Blogger Adam Hurtubise said...

Couldn't agree more, Barry.

Thursday, April 13, 2006 2:37:00 PM  
Blogger JD Rhoades said...

I agree it was a ridiculous lawsuit.

But don't "tort reform" advocates insist that a "loser pays" system, like Britain's, will get rid of frivolous lawsuits?

Didn't work here, diddit?

Thursday, April 13, 2006 4:04:00 PM  
Blogger Barry said...

Mark - yes, I believe the UK system is loser pays unless the court decides otherwise. I would love to see the US adopt the same system, but of course the trial lawyer lobby opposes the change -- purely out of concern, of course, about giving the little guy his day in court (insert sarcasm emoticon here). Actually, finding the right balance between protecting the little guy's right to sue and not overburdening society with frivolous lawsuits would be a good subject for a future posting...

Agreed JD, the loser pays system didn't work here. But this is an exceptional case, in which the plaintiffs rightly figured that the publicity would be worth paying Brown's publisher's legal fees.

Sandra, thanks for the link. Sounds like an exact repeat of the UK case -- same dynamics, same trumped-up charges, same hassle for Brown. I like what Anikin, who's threatening to bring suit in Russia, says about DVC: “When I read the book, I was shocked at its poor quality and because it used my ideas. This book tells lies about the Church which upset me morally.” Does this mean Brown used Anikin's lies? Interesting.

I don't think Anikin and his ilk are any different from the woman who dropped a severed finger into her Chili's last year, then sued for her emotional distress. I'm fascinated by how people rationalize their actions. How do you look in the mirror and say, "Sure, I'm an extortionist, but I'm a good, worthy person"?

Sandra, it's true the lawsuits mean even more publicity for Brown, but I'd bet that, on balance, he'd prefer to go on making $70 million a year and not have to deal with these frivolous suits.

Brett, welcome, and thanks for the kind words about HOTM. Another writer! Look for Brett's book, Hung Out to Die, from Bantam in 2007.

Jim, I partly agree with you about Random House's take on the lawsuit -- huge publicity for both books, and RH gets reimbursed for their legal fees. But I'll bet this is a notion they use to comfort themselves from the hassle of the lawsuit. Even for a big corporation, being sued is unpleasant.

Thursday, April 13, 2006 4:51:00 PM  
Anonymous kathie said...

Nice recap of the case. The thing that bothered me most about the clowns who sued was that they wanted to be viewed as academics, dealing in fact and discovery. And though I can't take their work and copy it, pretend I made their "discoveries", or sell it as my own, I can use it for the factual basis of my fiction book. Like anyone who uses an area of study, its subtleties and structure for the basis of fiction--to make it realistic--this is the way the world works. Thank God there was common sense in play when all was finished in court.

Thursday, April 13, 2006 5:15:00 PM  
Blogger Tim said...

You know I work in a bookstore and i was familiar with Holy Blood Holy Grail before DVC came out. I remember wondering at the time if problems were going to arise from some of the similiar themes.

But the fact of the matter is that one is a work of fiction based on a theory that was in the works long before either book came along. And the other is a non-fiction book exploring that theory.

I was disappointed to hear about the lawsuit but at the same time I was surprised at least something along this line hadn't happened sooner.

But at least i have my Signed 1st printing/1st edition and my ARC of DVC to sell on ebay later ;)

Thursday, April 13, 2006 5:53:00 PM  
Blogger SAND STORM said...

The loser pay system did work, they lost they pay 85%.

The case did exactly what they wanted it to do (and maybe RH as well) just go to your local book store and see the huge display of TDC and HBHG side by side.
It's marketing 101 folks "no coverage is bad coverage".

Thursday, April 13, 2006 7:56:00 PM  
Blogger Bonnie Calhoun said...

Barry, great post...and I agree completely. But you brought up a perk that I had never entertained...that the lawsuit would bring HBHG back into the limelight.

I had wondered on the purpose of such a seemingly "no-win" lawsuit. Youve put a very nice spin on it ...thank you!

Now we have a second person looking for his fifteen minutes of fame!

Thursday, April 13, 2006 9:23:00 PM  
Blogger ZenPupDog said...

Gah! Everyone involved cried their way to the bank. Barry? Next time you hit Los Angeles, I'll lend you my copy of the Big Book of Conspiracies; I wish the folks who debunked both books would be the ones getting richer.

- ZPD

Thursday, April 13, 2006 10:50:00 PM  
Blogger Lauren Baratz-Logsted said...

OK, Barry, but don't expect the HBHG authors to ever blurb you!

Friday, April 14, 2006 3:42:00 AM  
Blogger Sandra Ruttan said...

That's okay, Lauren. There are plenty of us that will do those blurbs.

(Publishers dictating to their authors over who they are and are not allowed to blurb? No, I didn't see a clause that said I was handing over my conscience in exchange for my deal.)

Friday, April 14, 2006 5:42:00 AM  
Anonymous M.J. Rose said...

There are publishers who do dictate - well - strongly suggest - who their authors should and shouldn't blurb.

Loving the blog, Barrie.

Friday, April 14, 2006 6:26:00 AM  
Anonymous M.J. Rosed said...

Yikes Barrie? Sorry, Barry. What was I thinking. I read Peter Pan too long last night.

Friday, April 14, 2006 6:28:00 AM  
Anonymous M.J. said...

And I spelled my own name wrong in that last post... I'm going to get more coffee. My dyslexia is screwing up your blog.

Friday, April 14, 2006 6:39:00 AM  
Blogger Lady M said...

I just want to say:

I don't think there is an original story anywhere - the difference in the nuances of the telling is what makes the book original or "new".

A million stories have been told about religion, butterflies, space... you name it.

Hopefully - as a writer, he will win on every single lawsuit, unless someone can PROVE beyond a reasonable doubt that he plagarised (z or s, can never remember) them line for line and word for word.

Otherwise - why should writers write anything, anymore? To live in fear that the idea you just put hours, months, years into will be taken to court - because someone else had an idea similar?

If this were so - every romance novelist would give up the pen.

Lady M

Friday, April 14, 2006 8:55:00 AM  
Blogger Barry said...

Jim, Sand Storm, and Zenpupdog -- you might be right about this thing being orchestrated by B&L, RH, and Brown. Financially, they all benefit. Still, I doubt that Brown would sign up to be accused of what the public will look at as plagiarism. There's some embarrassment factor here for RH, too, although not as acute as the discomfort Brown would feel for having his reputation attacked. My guess is still that the protagonists here were B&L. But I could be wrong.

Lauren, Sandra, and MJ -- blurbing, that's a subject worthy of its own blog entry, sometime soon...

MJ, welcome! Another writer, folks, although I doubt an introduction is necessary: MJ is the author of the Morgan Snow thriller series, latest entry The Delilah Complex, and the force behind Buzz, Balls & Hype, where MJ kindly mentioned a few days ago that I was starting HOTM. MJ, no need to apologize for spelling mistakes... you should see what I do before I've had my coffee...

Lady M, agreed on all points, and US (and, I believe, UK) copyright law certainly reflects your thinking. Glad the court applied it sensibly in the matter at hand.

Friday, April 14, 2006 9:48:00 AM  
Blogger David Terrenoire said...

I'm working on a historical novel now and if I had to share my miniscule advance with every writer I've read for research, I'd be buggered.

I think the writers saw the gravy train and wanted to jump on board. I'm glad they missed it.

Friday, April 14, 2006 2:30:00 PM  
Anonymous Jeff Henkes said...

Barry. Excellent insight. When I first heard of the lawsuit I made up my mind never to read HBHG or buy any of their books. I won't support authors who lack integrity.

Sunday, April 16, 2006 1:08:00 AM  

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