The UK Court Of Appeal has ruled against HBHG co-authors Baignent and Leigh in their suit against DVC publishers Random House, saying that copyright law only protects text, rather than ideas, themes, or structures. As one judge put it, copyright does not "extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about."
This is more strongly worded than might be expected (appeal courts supposedly rule on the fairness of the original trial, rather than retrying the case). But I can’t think of anyone who would actually be surprised at this ruling outside of the defendants themselves (not sure whether to include their lawyers in that or not). The general reaction will be one of relief, over an end to the prospect of copycat (if that’s the right word) suits of the 'you stole your film script from my history textbook' sort. This was more of a danger than it might appear, for plagiarism is a broader concept than copyright. It was really plagiarism the two HBHG authors were referring to in their claim when they said the whole ‘architecture’ of their work had been copied. Plagiarism is a major offence in the academic world whose integrity depends on independent individual research efforts. But in journalism, plagiarism is a way of life. Freelancers are always complaining about this when they send ideas in to TV producers, and legal actions have been brought and settled over this. But it seems it’s only when someone is found to copy specific details they will lose a legal action.
There have been several high-profile plagiarism cases in the past year where novels have been withdrawn after someone noticed a familiar sentence from Grahame Greene or Jane Austen or George Orwell, and it snowballed from there, as other online researchers joined the game of spot-the-plagiarism. Experienced biographers like Lady Antonia Fraser say they invent insignificant but telling details as part of a literary ‘sting’ setup to catch out copycats, the same way dictionary publishers do with an invented word, or the Ordnance Survey catches out other map publishers by putting imaginary roads on their maps. One academic biographer set up a sting when he heard a bestselling writer was being commissioned to produce, within a year, a massive biography of Poet Laureate John Betjeman for his centenary. Suspecting his own work over many years would be plundered, he quickly planted a fake letter on the newcomer, and then publicised the sting.
The key legal point here is that the detail is an original invention, and not a fact. It’s possible that if the HBHG authors had concentrated more on specific details rather than broad structural similarities they themselves could not decide on (changing their claim particulars midway), the outcome might have been different. Baignent and Leigh said in a statement today: "We feel that today is an ominous one for those who wish to research a book of their own and come up with their own theories. It is a carte blanche for those who would rather not bother, but simply take another author's ideas and adapt them."
Plagiarism without specific copyrightable details being copied can still be the basis of an action, especially in today’s litigious climate. (Variety recently did an editorial saying that people in the industry are now afraid of their own Hollywood lawyers, one of whom has been trying to patent storylines.) When Robert Bolt was writing the script for David Lean’s Lawrence Of Arabia in 1960, he feared the most recent of Lawrence’s many biographers might bring such a suit, and got an acquaintance to agree to say, if necessary, that it was his earlier biography Bolt had drawn on for historical research. In the end, Bolt got dragged into a plagiarism hearing anyway, because when the film was restored in the late 80s, scriptwriter Michael Wilson asked Bolt for shared credit, his early script work had been shelved by the producers. Bolt refused to share credit on the basis he had never even seen anything by Wilson. Wilson went to the Writers Guild Of America arbitration committee, who ruled Wilson should get a credit on all restored prints, on the basis there were a dozen points of similarity in the structure between Wilson’s script outline and Bolt’s script. The implication was the producer had told Bolt to follow the structure which Wilson had developed, though there was no proof of this.
This is not an isolated case – something similar happened with one cause celebre case that made it to the British courts, over the cult 1970s British drama serial Rock Follies written by Howard Schuman, where a judge accepted the actresses’s claim they came up with the idea themselves, though there was no evidence, almost ruining the writer’s career. Sir Arthur Conan Doyle has now been accused of murdering his collaborator on his most famous novel to cover up alleged plagiarism. In Robert Bolt’s case, he thought this an outrageous precedent when dealing with history, for it is the events themselves that provide the structure – the choice and sequence of scenes - and the sequence of historical events cannot be copyrighted. But does that mean it can still be protected by claims of plagiarism brought by other means besides copyright suits? The jury seems to be still out on that one.