Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 14, 2006

U. S. Supreme Court Denies Cert in "Da Vinci Code" Case

The Supreme Court has denied certiorari in the copyright infringement case that author Lewis Perdue brought against Dan Brown. Perdue alleged that Brown's best seller The Da Vinci Code, published in 2003, was substantially similar to Perdue's own Daughter of God, published in 2000. Perdue v. Brown, 2006 U.S. LEXIS 8569; 2006 WL 2332372 (U.S.), 75 USLW 3074.

The Second Circuit had affirmed the district court's judgment in favor of Brown.

"To establish copyright infringement, "two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original."....In the case before us, the parties do not dispute that Appellant obtained valid copyrights for his books. Appellant therefore needs only to demonstrate that Appellees copied original, constituent elements of his books. In the absence of direct evidence, copying may be established by showing "(a) that the defendant had access to the copyrighted work and (b) the substantial similarity of protectible material in the two works." ....For purposes of the summary judgment motion, Appellees have conceded that they had access to Perdue's books. This case therefore turns on the second part of the test: "whether, in the eyes of the average lay observer, [The Da Vinci Code is] substantially similar to the protectible expression in [Daughter of God]." ....As to the copyrightable material in Appellant's books, the court concluded, on the basis of a comparison of "the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting of the [two sets of books]," that "no reasonable trier of fact could find the works substantially similar."....On that basis, the court granted summary judgment in favor of Appellees. Having considered the matter de novo, we now affirm the decision below for substantially the reasons given by the district court."

The case is Brown v. Perdue, 177 Fed. Appx. 121; 79 U.S.P.Q.2D (BNA) 1958; 34 Media L. Rep. 1609 (2006). Read more here.

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