The July issue of Vanity Fair has an excellent article about the controversy regarding author Lewis Perdue's allegations and court battle against Dan Brown, author of "The Da Vinci Code" and his publisher, Doubleday/Random House. The magazine's contributing editor Seth Mnookin takes us on Perdue's journey through the trials and tribulations of fighting Brown, the publisher, and the court system in an article titled "DaVinci Clone?". What I found interesting in the article were the additional allegations of two more instances of possible plagiarism in Brown's past.
I have not read "The Daughter of God", but I plan to, just to compare for myself what common material the two books contain. I was not impressed with the "DaVinci Code" when I read it about three years ago. I thought it was hack-writer material but the ideas expressed in Brown's book were facinating.
Also interesting in the Vanity Fair article was that two textual analysis experts also believe Brown borrowed the plot for his book from Perdue's "Daughter of God." The two experts say they are convinced Brown borrowed heavily from Perdue's book, despite Brown's recent victory in court. John Olsson, the director of Britain's Forensic Linguistics Institute, said, "This is the most blatant example of in-your-face plagiarism I've ever seen. It just goes on and on. There are literally hundreds of parallels." The article also states that Perdue found, using plagerism-detecting software, that the judge, practically verbatim, used Brown's attorney's arguments against plagerism in it's findings, a not unusual occurance, but it bolstered his, (the judge's) opinion that the books were not similar. It IS unusual to utilize the opposing attoney's arguments as the deciding factors in a case like this, I think.
Dan Brown and Doubleday/Random House did not comment for the article.
Mnookin also cites an incident in which Brown copied an exact passage from the paper "Leonardo's Lost Robot," written by robotics expert Mark Rosheim in "DaVinci". Brown and/or Brown's publisher said the passage was covered under fair-use practice. "Fair Use", as defined by a Stanford University "Fair Use" overview is "a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist's work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work. Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute will have to be resolved by courts or arbitration. If it's not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages. The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate. In its most general sense, a fair use is any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Another way of putting this is that fair use is a defense against infringement. If your use qualifies under the definition above, then your use would not be considered an illegal infringement. So what is a "transformative" use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varying court decisions. That's because the judges and lawmakers who created the fair use exception did not want to limit the definition of fair use. They wanted it–like free speech–to have an expansive meaning that could be open to interpretation. Most fair use analysis falls into two categories: commentary and criticism; or parody.
1. Comment and CriticismIf you are commenting upon or critiquing a copyrighted work–for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:
- quoting a few lines from a Bob Dylan song in a music review
- summarizing and quoting from a medical article on prostate cancer in a news report
- copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
- copying a portion of a Sports Illustrated magazine article for use in a related court case.
The underlying rationale of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material.
A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to "conjure up" the original. "
Neither of these definitions seems to fit Brown's use of what Rosheim wrote. Rosheim says, "Every now and then I'll be giving a talk and someone will come in with The Da Vinci Code and ask me to sign a copy. Either that or they'll accuse me of copying him."
The Vanity Fair article details Perdue's legal case. Perdue first contacted Mnookin 2003 and Mnookin wrote about the dispute for Newsweek in June, 2003 and now, in the Vanity Fair article he delves more deeply into the battle being waged by Perdue. It will interesting to see how this plays out in the courts. Good Luck, Mr. Perdue, in your battle with the big guys. To read more: