A British trial hearing claims against Dan Brown, author of
widely-lampooned best-seller The Da Vinci Code, has been adjourned
until next week to give the judge more time to study the books in question. Michael
Baigent and Richard Leigh, authors of The Holy Bloodand the Holy
Grail, are suing Brown’s publishers for infringement of copyright,
claiming that central ideas in his novel were stolen from their book.

This case opens up a whole new minefield for writers. Most of us take
claims of plagiarism very seriously – not because of some fetish about
intellectual “property”, but because it amounts to fraud. If you pass
off someone else’s work as your own, you’re misleading your readers:
the real offence is against them, not against the original author.
Copyright law is a poor tool for combating that, but it’s the best
we’ve got.

What makes this case different is that Baigent and Leigh never claimed
to be writing fiction: Holy Blood & Holy Grail was billed as a
work of history. And no-one can copyright history itself – intellectual
“property” law has done strange things, but not quite that strange. The
facts of the past are the common property of all.

This, of course, was fabricated history – Dean Bertram this morning calls its leading notion “the convoluted fantasies of a
petty French fascist.” But the principles of how much you can use
someone else’s historical writing can’t depend on how reliable it is –
that would give good history less protection than bad. And novelists
use history all the time; unless they commit obvious transgressions
(like direct quotation without acknowledgement) they should be free to
do so.

It seems that the only way Baigent and Leigh can succeed is by
admitting that their work was not history at all, but fantasy, and
therefore entitled to the same protection that other creative artworks
have. If they want to pose as historians, they have to accept that you
can’t copyright the past.