Is there a precedent for the DVC case and trial?

Possibly:

Ravenscroft v Herbert [1980] RPC 193

The plaintiff in this case claimed infringement by the plaintiff in his non-fiction work "The Spear of Destiny". The plaintiff had written a history of the spear which was allegedly used to pierce the side of Christ on the Cross. He detailed the history of the spear from Israel to Hofburg Museum in Vienna. The plaintiff identified it as the spear used by many legendary historical people and claimed that the spear had become a symbolic source of inspiration in Nazi Germany. The plaintiffs book was meticulously researched using a combination of empirical techniques and use of a psychic medium.

The defendant, James Herbert was fascinated by the plaintiffs book and used it as the basis of a fictional account of the post-war fate of the spear entitled "The Spear". The novel concerned a neo-Nazi group, secret agents and terrorists. The book was divided into sections. At the beginning of each section was a prologue. The prologues told the story of the spear from the Crucifixion to the end of the second world war. The plaintiff sued for copyright infringement.

The defendant admitted using the plaintiffs book as a source of inspiration for his novel.

The court upheld the plaintiff's claim of copyright infringement and in finding for the plaintiff decided as follows -

1. The defendant had infringed the plaintiff's copyright by writing the prologues using the same characters, incidents and interpretation of the significance of events

2. In assessing the quantum of damages the court had to assess the value of the infringing part of the defendant's work in relation to the whole of the original work. Although the infringing part represented only 4% of the defendants work, the value of the 4% was 15% of value of the whole derivative book. there were in all, fifty alleged instances of language copying in the defendants work.

In an article at LegalWeek.com, Barrister Amanda Michaels explains some of the issues at stake:

The difficulty is that there is no copyright simply in ideas, but only in the expression of the ideas; copyright protects the skill and labour of the author in creating his work. Naturally, it all depends on what is meant by ‘ideas’. As copying may be substantial in terms of quality rather than quantity, the ‘substantial part’ can be ‘a feature or combination of features abstracted from the claimant’s work, and need not form a discrete part of it’.

That being so, Lord Hoffman in Designers Guild considered that "the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original". Here, the defendant challenges the very existence of the central theme upon which the claimants rely, but adds that in any event the theme is of too high a level of abstraction to be protected as a copyright work.

In Ravenscroft v Herbert [1980], features of a non-fictional work tracing the history of the Spear of Destiny — a museum piece which supposedly was the very spear that had pierced Christ’s side on the cross — were used in a thriller based around the spear. Copying of text and of non-textual features, such as characters, incidents and interpretation of events, was found to infringe. The DVC case, of course, relies solely upon copying of the central theme — will this be enough?

There is a spectrum stretching from ‘pure’ ideas through elements of plot, features or themes, to specifics of text. This case raises the issue of where the boundary lies along that spectrum, between ideas which are in the public domain and protectable copyright; this may be impossible to define, but the judge will have to find on which side of it any copying in DVC may fall. His judgment may well affect the approach to be taken by writers of all kinds to copyright source material.

Comments

[talpianna]

" The plaintiffs book was meticulously researched using a combination of empirical techniques and use of a psychic medium."

Well, now you know why your book isn't outselling Dan Brown's--you failed to consult a psychic.

I knew that was going to happen....

[Clarissa Westenburger]

La-la-la-la on and on. The original source behind Brown's witless high-school plagiarism is nothing but another witless source, HBHG. Had Brown actually researched the original source within the Gospels about the "beloved disciple", all his scheming to make a clever book out of a knockoff of another lazy unresearched book may have been trashed. For instance, look carefully at the story of Jesus's disciples entering a fishing boat with Jesus at night, the "beloved disciple" is also in the boat when Peter dives into the water to see Jesus on shore cooking a fish. Gee, it doesn't take historians to confirm that women did not enter fishing boats with men who were stripped naked, not even to socialize. The "beloved disciple" was John, not Mary Magdalene in the boat. Get any version of the Bible and look it up. Duh. No wonder the Duh-Vinci Code has so many followers. "My people perish for lack of knowledge."