DVC Plagiarism V Copyright Verdict, The Problem Continues

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There have been several high-profile plagiarism cases in the past year where novels have been withdrawn after someone noticed a familiar sentence from Grahame Greene or Jane Austen or George Orwell, and it snowballed from there, as other online researchers joined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.

Blake At 250 – The Unsolved Mystery

This year is the 250th anniversary of the birth of William Blake, and there are various ‘Blake At 250’ academic conferences, commemorative walks, and so on. It remains to be seen whether there will be any explanation of the greatest mystery of his career: what was the inspiration for his poem beginning, “And did these feet in ancient time /Walk upon England’s mountains green….?” This allusion to what is known as England’s ‘Holy Legend’ – that Christ visited England – has never been adequately explained. Where did he get this from? He doesn’t seem to be making it up, simply alluding in passing to an event he has evidently heard about, and asking if it could really be true. How much he expected readers or listeners to grasp of the allusion is impossible to answer. Blake’s work is famously esoteric (I recall some four decades ago carrying around a paperback of his poetry for months, hoping to make sense of it by dint of perseverance.) It’s been said before that millions sing these words as part of England’s ‘alternative national anthem’ Jerusalem without even understanding the allusion to the Holy Legend. But where does this incredible legend actually come from?
Some years ago I came across a 1989 article by A.W. Smith in the Folklore Society Journal which tried to trace the legend back to its source, and couldn’t. There were plenty of local ‘holy visit’ legends around the southwest coast, maintained by Cornish tin miners, but none could be dated back very far. The writer concluded it was all an invention … of the British Israelite Movement. Certainly a proponent of this theory, that the British were descended from a lost tribe of Israelites, was a vicar of Glastonbury who wrote a book on the Holy Legend. But this was in the 20th century.The British Israelite Movement is thought to date back to around Blake’s time, or even to the 17C Puritans, but did the Puritans really just invent it?
There are some aspects of the mediaeval Glastonbury Abbey legends of the founding of Christianity in Britain which suggest it goes right back to the Dark Ages. Representatives of the mediaeval British Church sought precedence over that of Rome (which sounds dangerous) on the grounds their church was established by Christ’s disciples, in the last years of the reign of Tiberius – which would put it within five years of the Crucifixion. The reliable mediaeval historian William Of Malmesbury, though he could not get any details, refers to the discovery of "documents of no small credit, which have been discovered in certain places to the following effect: ‘No other hands than those of the disciples of Christ created the church of Glastonbury.’ "The idea Christ’s disciples came to England (presumably fleeing the Romans, who had not invaded Britain) of course does not mean Jesus did too. The tin-miner’s version of the legend have Jesus visiting with his ‘uncle’, Joseph of Aramatheia, who became a major figure in the Arthurian Romances as keeper of the Grail. The rationale is that Joseph knew Britain from his trips as a tin merchant, and on one of his trips he had brought his nephew, the boy Jesus, but there seems no way of ever documenting this. The Bible says nothing about Jesus ‘s life between ages 12 and 30. The Vulgate Bible gives Joseph as nobilis decurio and a decurion was a term often used for an official in charge of mines. (Cornish tin-miners folklore had a saying and song that "Joseph Was A Tin-Man and the miners loved him well.")
There have been claims Blake was a kind of honorary Druid who was indoctrinated into an esoteric, i.e. secret oral tradition. But this is not only unprovable, the poem ‘outs’ the supposed secret in a way that implies others would grasp the allusion. The legend is so radical it may be there is reluctance to tackle it. But it would be something if for Blake’s 250th someone could produce, if not new evidence, at least a coherent explanation.