Friday, April 07, 2006

If you sue a writer, don’t get on the wrong side of the judge — especially if you’re another writer or artist

In rejecting the plaintiffs’ claim of copyright violation in the Dan Brown case, the judge appeared to reject their work as well.
In issuing his judgment, Justice Peter Smith said that Mr. Brown did indeed rely on the earlier work, "The Holy Blood and the Holy Grail" in writing a section of "The Da Vinci Code." But he said that two of "Holy Blood's" authors, Michael Baigent and Richard Leigh, had failed to define the central theme of their book and thus failed to prove their accusation that Mr. Brown had lifted it from them.

In fact, the judge said, the earlier book "does not have a central theme as contended by the claimants: it was an artificial creation for the purposes of the litigation working back from 'The Da Vinci Code.' "
Ouch! If a book of nonfiction doesn’t have a central theme, what does it have? And to have the absence officially noted in a legal ruling by a judge — that must hurt. (Financially as well, since under British law the plaintiffs are liable for the defendant’s legal bills, which ran to the millions.)

Now Baigent and Leigh know how James McNeill Whistler must felt after “winning” another transatlantic legal battle — his 1878 libel suit in London against British critic John Ruskin. The aging writer had written some very nasty things about "Nocturne in Black and Gold: The Falling Rocket," including his famous crack about its American painter —
"I have seen, and heard, much of Cockney impudence before now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public's face."
In ruling in Whistler’s favor, the judge contemptuously awarded Whistler damages of one farthing. That’s one-quarter of a penny. The outcome was emotionally and financially devastating to Whistler, who spent a fortune on the trial, much like Baigent and Leigh.

Last time the Brit came out on top, this time the American — but really the only winner in either case was free expression.

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