The appeal came after last year's High Court ruling, which rejected Baigent and Leigh's claims that Brown had copied major themes from their 1982 non-fiction best-seller, including the theory that Jesus married Mary Magdalene and that his descendents are still around today. Back in April, all eyes were on the trial and the ruling was hailed as a victory for the freedom of ideas. It even made a minor celebrity of Justice Peter Smith when he cheekily embedded a coded message into his written decision. This time around, few knew (or cared) that the appeal was even taking place, Brown didn't testify and the judges weren't in a playful mood.
The outcome, however, was the same. You can't call dibs on an idea. "Everybody is allowed to have ideas, so there's no legal protection for them," says legal commentator Ian Caplin. "But once you express an idea, the law says that copyright can protect that expression." But in this case, both courts agreed that the theories Baigent and Leigh are trying so hard to protect are ideas, not expression. So Brown and anyone else is free to use them. Upholding last year's ruling, the appeals court said that the law can't be used to "monopolize historical research or knowledge and prevent the legitimate use of historical and biographical material," and that the theories Baigent and Leigh claim Brown pilfered from their book "lay on the wrong side of the line between ideas and expression" to warrant protection.
Like the original High Court judge, the appeal court judges noted that the theories weren't all unique to Baigent and Leigh either. Some of the ideas they say Brown copied from them are based on historical facts and hypotheses that they culled from various other sources.
That the case even got to an appeal says a lot about how unusual it is. "This case stretched the envelope in terms of the traditional copyright claim scenario," says Caplin. Most copyright trials deal with more obvious breaches of the law, like when chunks of text are lifted from one source and plunked down into another. Cases of cut-and-paste can be pretty cut-and-dry. But the Da Vinci Code case deals with the intangible concepts of ideas, theories and themes. "Has Brown taken away abstract ideas from another source, ideas that are too general to get copyright protection?" says Caplin. "Or has he taken something that is an expression of an idea, which could have protection? Those questions were tested here and in making their decision, the judges have indirectly fallen on the side of freedom of artistic expression. It means that creative writers who are looking for sources of inspiration can still sleep easy."
But it's a nightmare for writers who deal with the facts, say Baigent and Leigh. "Today is an ominous one for those who wish to research a book of their own and come up with their own theories," they said in a statement. "It is a carte blanche for those who would rather not bother, but simply take another author's ideas and adapt them." The decision means the Holy Blood authors can't claim massive royalties from Random House (who also published their book) and still have to pay the $6 million legal bill. They can still appeal the appeal and try to convince the House of Lords, Britain's answer to the Supreme Court, to take the case. But at this point, they'd have better luck trying to walk on water.