Volume 27, Number 11, April 2006

INTERNATIONAL DEVELOPMENTS “The Da Vinci Code” does not infringe The case ultimately turned, though, on the written copyright to non-fiction book “Holy Blood, word rather than on the testimony of any of the parties. Justice Smith found that the “Central Theme” on Holy Grail,” British court rules which Leigh and Baigent based their case simply did not exist in Holy Blood. “I have read [Holy Blood] many A British court has ruled that Dan Brown’s novel times (over the 20 years since its publication),” the The Da Vinci Code does not infringe the copyright to the Justice said, “and to attempt to find the Central Theme . non-fiction book Holy Blood, Holy Grail, by Richard . by reading the text is a task in my view beyond any Leigh, Michael Baigent and Henry Lincoln. reader.” The ruling by Justice Peter Smith came at the end of Justice Smith also found that some of the 15 points a highly-publicized trial in London. The trial itself was of the Central Theme are not in Holy Blood at all, other newsworthy because it occurred on the eve of the release points are not in The Da Vinci Code, some are not in of the movie version of The Da Vinci Code, and because either book, and still others are not protected by the trial featured in-person testimony by Leigh, Baigent copyright. For these reasons, Justice Smith ruled against and Brown, none of whom did well for himself, in the Leigh and Baigent and dismissed their case. eyes of Justice Smith. Editor’s note: Justice Smith is himself a clever Leigh and his co-author Baigent did not accuse writer, as his lengthy opinion in this case reveals. The Brown of lifting passages or phrases from their best- manuscript for his decision (the link to which is below) selling non-fiction work. (Co-author Henry Lincoln did contains what appear to be many errors of typography – not join them in the lawsuit.) Instead, they asserted that not misspellings, but what appear to be misplaced italics in writing The Da Vinci Code, Brown copied the and bolding. They are not errors at all, however. Instead, “Central Theme” of Holy Blood, Holy Grail. the Justice inserted a code of his own into his opinion – According to Leigh and Baigent, Holy Blood’s one that reportedly refers to the name of the inventor of “Central Theme” consists of 15 specific points. These the Fibonacci Sequence – a formula for substituting included the notions: that Jesus was of royal blood; that letters that Brown used in The Da Vinci Code. Mary Magdalene was his wife; that at the time of Jesus’ crucifixion, Mary was pregnant with Jesus’ child; that Baigent v. Random House, [2006] EWHC 719 (Ch), after the crucifixion, Mary fled to France; and that their available at http://www.hmcourts-service.gov.uk/ bloodline survives to this very day. judgmentsfiles/j4008/baigent_v_rhg_0406.htm Brown testified that he did not read Holy Blood until after he finished writing a synopsis of The Da Vinci Code. Justice Smith was openly skeptical of this testimony, saying in fact that he found parts of it “unconvincing.” What’s more, the Justice faulted Brown for not calling his wife as a witness, because – as other testimony revealed – she did most or all of the research for the novel, and thus she might have read Holy Blood, even if Brown did not. As things turned out, however, it didn’t matter whether Brown’s wife may have read Holy Blood, because Justice Smith was even more skeptical – was indeed outright critical – of the testimony of Leigh and Baigent. In his written decision, the Justice said, for example, “I am not sure what Mr Leigh thought was the purpose of his evidence,” and “Mr Baigent was a poor witness.” ENTERTAINMENT LAW REPORTER 3 VOLUME 27, NUMBER 11, APRIL 2006 RECENT CASES “The DaVinci Code” does not infringe liability under California law, based on things that were copyrights to novel “Daughter of God,” said by the show’s writers during writing sessions, would infringe upon their free speech rights under the First appellate court affirms Amendment or the state Constitution. In an opinion by Justice Marvin Baxter, the Court Dan Brown’s best-selling novel The Da Vinci Code has ruled in favor of Warner Bros. and the writers, on does not infringe the copyright to Lewis Perdue’s novel grounds that are more factual than legal. Daughter of God. The Supreme Court concluded that “most of the In response to a motion for summary judgment filed [writers’] sexually coarse and vulgar language . did by Brown and his publisher, a federal District Court not involve and was not aimed at [Lyle] or other women compared the two books and concluded that reasonable in the workplace.” Because “Friends” was produced in jurors could not find them to be substantially similar. “a creative workplace focused on generating scripts for Purdue appealed, but without success. The appellate an adult-oriented comedy show featuring sexual themes, court reviewed the books for itself and affirmed the we find no reasonable trier of fact could conclude such dismissal of the case “for substantially the reasons given language constituted harassment directed at [Lyle] by the district court.” because of her sex. .” The Court also found that if “offensive comments Brown v. Perdue, 2006 WL 1026098 (2nd Cir. 2006), were made about women other than [Lyle] because of affirming, 2005 WL 1863673, 2005 U.S.Dist.LEXIS their sex, we find no reasonable trier of fact could 15995 (S.D.N.Y. 2005) conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive. .” Use of sexually coarse and vulgar language As a result, the Supreme Court reinstated the trial by writers of TV series “Friends” did not court’s summary judgment in favor of Warner Bros. and constitute harassment of female writers’ the writers, “without addressing the potential of assistant, California Supreme Court rules infringement on [their] constitutional rights of free speech.” Warner Bros. has escaped potential liability for the alleged harassment of a female writers’ assistant who Lyle v. Warner Bros., 2006 WL 1028558, 2006 was hired to work on the TV series “Friends.” The case Cal.LEXIS 4719 (Cal. 2006), available at that exposed the company, as well as its writers, to such http://www.courtinfo.ca.gov/opinions/documents/ liability was one in which Amaani Lyle, a former S125171.PDF writers’ assistant for the show, alleged that she was sexually harassed by things the writers said – not to her, but during writing sessions in which she was present and Use of vulgar language by male coach of working. University of North Carolina’s women’s Initially, Lyle’s case was dismissed by a trial court. soccer team did not sexually harass player, But the California Court of Appeal reversed in an federal appellate court affirms opinion that held that Lyle was entitled to trial on her sexual harassment claim, based on things that writers Anson Dorrance – one of the male coaches of the said and did during those writing sessions (ELR University of North Carolina’s women’s soccer team – 26:4:12). allegedly used “vulgar language” and participated in The California Supreme Court took the case to “sexual banter” with some of the women he coached; consider whether the use of “sexually coarse and vulgar and once, he directed a “vulgar question” at a 17 or 18- language” by the writers of the television series year-old player named Melissa Jennings. “Friends” could constitute “sex harassment” under Dorrance really ought to have known better, because California law. When the Court agreed to hear the case, when Jennings was later cut from the team, the it also indicated it would consider whether imposing ENTERTAINMENT LAW REPORTER 4 VOLUME 27, NUMBER 11, APRIL 2006 foreseeable happened: she sued him and the University the $150,000 in costs or attorneys fees they incurred in for sexual harassment. defeating the case. Jennings’ case was dismissed by the District Court. And now that ruling has been affirmed by the Court of Mestre v. Vivendi Universal, 2005 WL 1959295, 2005 Appeals. U.S. Dist. LEXIS 41024 (D.Or. 2005) (merits), 2005 Writing for a 2-to-1 majority, Judge James Dever U.S. Dist. LEXIS 41023 (D.Or. 2005) (fees/costs) acknowledged that “When the evidence in this case is viewed most favorably to Jennings, the evidence shows that Dorrance used vulgar language and participated in Most, but not all, claims are dismissed in sexual banter at practice with some women that he suit alleging “White Chicks” was plagiarized coached and that he once directed a vulgar question at Jennings.” from screenplay “Johnny Bronx” Nevertheless, Judge Dever noted that “Jennings immediately responded to Dorrance's vulgar question The writers of a screenplay titled “Johnny Bronx” with her own profane reply. .” What’s more, the judge believe it was copied by the Wayans brothers when they said, “Dorrance never touched, never threatened, never wrote the movie “White Chicks.” The writers – partners ogled, and never propositioned Jennings.” in a company called A Slice of the Pie Productions – For these reasons, Judge Dever concluded that “no submitted their screenplay to the Wayans’ agent, twice, reasonable jury could find that Dorrance sexually allegedly in response to the agent’s request. And harassed Jennings.” “Johnny Bronx” and “White Chicks” share a similar Judge Blane Michael dissented. concept: in both, African American FBI agents disguise themselves as white. Jennings v. University of North Carolina, 2006 WL While this case could have been filed as a pure 925477, 2006 U.S.App.LEXIS 8869 (4th Cir.

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