The Holy Grail and the Holy Dollar-when is copying infringement?

Law and Disorder ezine legal cartoons and articles Paul BrennanIf you have read the The Da Vinci Code (DC) and The Holy Blood and the Holy Grail (“HBHG”) as I have, you have probably decided that they are very different books.  You will not be surprised to hear that a UK High Court judge supports our view.  But how is it that what would have cost a legal advice fee of a couple of hundred dollars in Mooloolaba Australia has cost $AUS4.5M in London?

Legal cartoon, barrister, court, Paul Brennan

Although it sometimes depends on the idea, the smart money was on DC as every copyright lawyer knows that copyright does not protect “the ideabut the expression of the idea”.

For instance, a story, where boy meets girl, boy loses girl and boy gets girl back, is not protected by copyright.  It is just an idea and many stories have this theme.  What if the girl was a cowboy?  This is a novel twist (or so John Wayne would have had us believe) but still just an idea.  What if you went further still and copied some words from the film such as “giddy up” or “woe boy”?  This would be good evidence but probably still not enough.

What needs to be copied is a “substantial part” of the original work.  You engineers may measure “substantial part” as 15% or 20% but in copyright law, the test is one of “quality” rather than percentage.  “Quality” how do you measure that, I hear you say? Well, it is not easy and can cost up to $AUS4.5M a throw.

The bottom line is that sometimes copying a lot less than 15% clearly is an unfair use of the sweat of some others brow and that is wrong.  Therefore, a percentage test may produce simple but grossly unfair results.

Where does this leave you?  Well:

The big lesson to learn from this case is that if you have a copyright issue, try Mooloolaba first.

© Paul.Brennan 2009. All rights reserved.

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