Monday, March 13, 2006

Truth, Plagiarism, and the American Way

The Da Vinci Code court case is a model example of what is wrong with Intellectual Property law. Or, at the least, what is wrong with contemporary jurisprudence in interpreting Intellectual Property law and in allowing such looney claims to be made. Everyone can own anything in Intellectual Property law now, and force anyone else to pay them in order to think it or write it. Okay, maybe it's not that bad yet. But if the plaintiffs win their case against Dan Brown, it may well be. For those of you that do not know, the case involves the authors of Holy Blood, Holy Grail, who first argued many of the quasi-historical claims being uttered by the characters in The Da Vinci code. The book, as put forward by them, is a nonfiction. So why are they suing A WORK OF FICTION for copyright infringement? Since when can historians sue historical novelists for writing about history? Since when can scientists sue scifi writers for discussing their theories in novels? Or, even better, can a newspaper sue another newspaper that covered a local fire and mentions the same statistics about property damage and injuries? The case turns such basic assumptions upside-down. Slate states:

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.


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.

I haven't read The Da Vinci Code, or this book. Mostly because a lot of people who's taste I trust more than the NYT bestseller list have told me it's trash, and the subject matter doesn't interest me a whole lot. But few other than Dan Brown's most devoted and deluded fans would call it a history book, or a true story. And, what's more, Dan Brown references Holy Blood in Da Code, which academics might call "citing a source," I believe? So while this lawsuit is pretty much just a sour grape-eating contest everyone should be bothered that it is actually being entertained in court. For the magnificent reasons Slate stated above, what happens if you can copyright the truth? Is no one then permitted speak it? Can you earn royalties based upon facts? I'd say it's about as ridiculous as being able to patent someone's genes, but the courts allowed that, didn't they?

If the British court does file for the plaintiffs, it will crush any sort of cultural production we have. As much as conservatives whine about Hollywood being out of touch, a move like this could legally force them to under the threat of more lawsuits than they already have to contend with. The notion that being able to write about similar ideas, or events that actually occurred is a foundation for inquiry, be it scientific, journalistic, or historic. And to be able to spin fictional stories out of such real life events and possibilities is the main principle of writing accessible literature. To allow a "truth-patent" would destroy all of that. So, despite my hatred for pop-lit trash like Da Code, I stand with Dan Brown. Because how credible does it make your work of "fact" look when you're saying Da Code copied it?