If you’ve read The Da Vinci Code, you may remember a double-crossing Holy Grail expert named Leigh. As unlikely as it may sound, just such a character is now at the center of the current plot twist in Dan Brown’s real life. Last week, Brown was in an English court, defending his best-selling book against a copyright lawsuit brought by a self-appointed grail expert named Robert Leigh. Leigh and two friends are the authors of the 1982 best seller Holy Blood, Holy Grail, a nonfiction work that lays out the same claims that make The Da Vinci Code memorable. To wit (and stop if you hate spoilers): Jesus was married, Mary Magdalene was his wife, and they had kids whose descendents may still be around. Brown was kind enough to put an ad for Leigh’s book in The Da Vinci Code but Leigh and his co-authors, ungrateful, are suing Brown for stealing 15 “theme points” from their book and for ripping off its “architecture.”
The irony of the lawsuit is hard to overstate. The central premise of Holy Blood is that powerful forces have been keeping “the truth” buried for centuries. Along comes The Da Vinci Code to shout that truth to millions, and Holy Blood’s authors’ first instinct is to threaten the messenger. My own conspiracy theories aside, the Da Vinci lawsuit raises an interesting copyright question that American and English courts have differed in answering. Can one writer freely borrow someone else’s wacky historical speculations? Say a historian publishes the idea that Lyndon Johnson is a space alien who killed John F. Kennedy. Are you free to make a movie about it? The right answer, as perhaps Oliver Stone would testify, is that the nature of the claim matters. The authors of Holy Grail chose to make claims to truth—and while that gives their book a certain rhetorical power, it should also mean their work loses much legal protection. When copyright starts saying you can’t borrow claims to truth, it stops helping and starts hurting all authors.
Let’s start at the beginning. One of the basic principles of copyright law is that you can’t copyright historical facts, though you can own how you express those facts. Say you write the first article ever saying that John F. Kennedy had Addison’s disease (a fact). If the law says that you now own that fact, almost anyone who wants to write about Kennedy’s life or illnesses needs your permission. That’s a broad right, one that’s not just a damper on future scholarship and authorship but possibly a damper on that fact itself—you might, for example, be a Kennedy loyalist who wants to keep his disease secret forever.
The authors of Holy Blood make a different argument. They say that it’s one thing to repeat a fact or two. But it’s another to steal the essence of a work that required an enormous effort to write and research. Holy Blood took 10 years to put together (though, according to its critics, it’s still full of errors). And figuring out how to assemble the facts into a compelling work meant a lot of sweat. Back in 1982, Newsweek presciently said of Holy Blood that “the plot has all the elements of an international thriller.” A similar argument persuaded an English court to rule for a plaintiff just like Leigh and his co-authors in the 1980 case of the Hofburg Spear. The premise was just that too much was stolen.
This is not a ridiculous argument. Why should Dan Brown be able to walk away with tens of millions of dollars if Leigh and his pals put in all the hard labor? The answer is that Leigh et al., had a choice: They could have decided to portray their work as fiction, not history—and that, in the words of American judge Frank Easterbrook, “makes all the difference.” When you, as an author, make a claim to present the truth, you both gain something and lose something. You have a shot at changing what we think to be true, and you may gain reader interest. But you cannot own the truth the way you might own elements of a fictional story, like the character “Rocky.” To claim the truth is fine, but to own it is not.
There is little question that Holy Blood’s power (and its interest to readers) derives not from the organization of the book but largely from its claims to truth. For example, the authors write, “There is no reason that Jesus could not have married and fathered children while still retaining his divinity. … ” The authors could have offered up such claims not about Jesus but about a god of their own invention, named, say, “the Beyonder.” They could have invented a fictional order—not the Knights Templar, but, say, the Knights Ridder. But people want to know about Jesus, not the Beyonder. They don’t care about the Knights Ridder. The power of both Holy Blood and The Da Vinci Code comes from each book’s challenges to the accepted truths about Jesus’ life. And that’s why, in the end, it shouldn’t matter how much Brown took, so long as he didn’t copy verbatim. He did steal a lot from Holy Blood, but it was material he was entitled to steal.
One thing may seem odd about this discussion: When an author offers up a speculation like “space aliens killed JFK,” does it really make sense to call that a fact? After all, both Holy Blood and The Da Vinci Codes contain “real” truths (“Herod was a King”) alongside dubious claims to truth (“Jesus was a house-husband”). The answer, in legal matters, is yes. Though I’m not sure who killed JFK, I happen to count space aliens as unlikely culprits. But the reason to call the space alien theory a “fact” isn’t that we think it actually happened but that it’s useful to do so. It’s what people sometimes call a legal fiction, and the point is to err against excessive ownership of claims to truth. How can dueling authors ever have a meaningful public discussion of who Mary Magdalene was, if, for example, one side claims exclusive ownership of the theory that she was a lowly prostitute? Progress in science and scholarship requires the freedom to examine and expose claims to the truth, even crazy ones. Giving ownership to such claims would create free expression problems that go beyond book sales.
There’s another reason to treat claims to truth as facts. It relieves judges from the uncomfortable job of trying to determine what the truth is in the first place. Take the classic 1983 case of Blackie the Talking Cat. Blackie was a cat alleged to speak English, and his owner ran a business reliant on that ability. Based on Blackie’s speaking abilities, the owner argued that it would violate the First Amendment to force him to register his business. The courts hearing the case proceeded under the assumption, as claimed, that the cat could indeed speak. Why? Well, how exactly is a court supposed to prove that a cat cannot actually speak? He might just not be in the mood. In the end, a federal court threw out the case not because of the ridiculous claim that the cat had free speech rights, but for other reasons—among them, that Blackie the cat should have brought his own lawsuit if he could “speak for himself.”
This reasoning against protecting truth claims is reflected in American copyright law. In this respect, the suggestion, from the Weekly Standard’s Christopher Caldwell (a sometime Slatewriter), that the Da Vinci lawsuit is an unprecedented effort to expand copyright is slightly misleading. There have been American cases just like Da Vinci, but the point is that they’re all losers. For example, Universal once made a film, The Hindenburg, premised on the wacky idea that an idealistic crewman put a bomb on the Hindenburg and blew it up. That theory was taken directly from A.A. Hoehling’s Who Destroyed the Hindenburg? (1962). And in the 1980s, CBS produced a Simon & Simon episode premised on the idea that the gangster John Dillinger, killed by the FBI in 1934, had actually faked his own death. This wasn’t the series writers’ idea—it was the published theory of one Jay Robert Nash, author of Dillinger: Dead or Alive?
Each of these plaintiffs lost. The judges said what I’ve said: If the author calls it a fact, you can steal it. The first person to publish a historical theory, again in the words of Judge Frank Easterbrook, “does not get dibs on history.” That’s logic that the English courts would be well-disposed to follow.