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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
The Da Vinci Code, Dan Brown’s best-selling novel, has spawned a host of literary imitators, board and video games, a travel journal, a Fodor’s guide, a major feature film, a diet plan, and now, perhaps, a Supreme Court case. While Random House, Brown’s publisher, fended off a copyright-infringement suit in Britain, it went on the offensive against an American author, Lewis Perdue, who also believes that Dan Brown stole the basis of The Da Vinci Code from his works. Mr. Perdue wrote two novels, The Da Vinci Legacy and Daughter of God, which — as one might surmise from their titles — explore themes similar to those that form the basis of Brown’s blockbuster mystery. In their private conference on Nov. 9, the nine Supreme Court justices will consider whether to weigh in on this dispute by hearing the case of Lewis Perdue v. Dan Brown and Random House (No. 06-213). After reading Brown’s novel, Perdue was convinced that Brown stole the basic premises of Daughter of God. The Da Vinci Code (warning: spoilers ahead!) follows a professor of “religious symbology” on his quest to solve the murder of the curator of the Louvre, who was involved with the Priory of Sion, a secret society that guarded the legacy of Mary Magdalene — who, the Priory believe, married and had children with Jesus and played an important role in early Christianity. In Daughter of God, a professor of religion must find his wife, an art assessor who has been kidnapped by KGB officials and the Russian mafia because she has been given art and a lost writing of Emperor Constantine that hint at the existence of a female messiah born in ancient Rome. In Perdue’s eyes, he explained in court pleadings, The Da Vinci Code stole from Daughter of God themes such as “notions of a divine feminine, the unity of male and female in pagan worship . . . [and] the quest not only for physical objects, but for spiritual fulfillment.” With seemingly little thought to the uphill battle he faced, Perdue decided to take on one of the largest publishing houses in the United States himself. In a move quaint to any seasoned litigator, Perdue first wrote a letter to the division of Random House that published The Da Vinci Code, helpfully detailing the similarities he saw between his and Brown’s work. When this gambit fell flat (Perdue received a letter denying infringement and helpfully suggesting some case law he could read), Perdue began beating his drum on the Internet and in the press. (He currently maintains two blogs, The Da Vinci Crock and Writopia, the latter of which “focuses on Dan Brown’s pattern of falsehoods and embellishment of his personal achievements.”) Perdue also obtained counsel and, in mid-2004, sent a cease-and-desist letter to director Ron Howard and his crew as they prepared to film “The Da Vinci Code” for Sony. This got Random House’s attention. Random House and Sony turned around and sought a declaratory judgment in the Southern District of New York that no infringement had occurred. Perdue responded with cross-claims of copyright infringement and unjust enrichment, and he sought both an accounting of the monies made from the growing Da Vinci empire and a permanent injunction to stop production of the film. Random House prevailed on summary judgment, on the basis that Perdue could not show that The Da Vinci Code was “substantially similar” to his books. Judge George Daniels explained: “A reasonable average lay observer would not conclude that The Da Vinci Code is substantially similar to Daughter of God. Any slightly similar elements are on the level of generalized or otherwise unprotectible ideas.” For example, the court found, “[b]oth Daughter of God and The Da Vinci Code involve the unprotectible idea of a mystery thriller set against a religious backdrop.” The U.S. Court of Appeals for the 2nd Circuit agreed. Using words that appellate clerks everywhere thrill to hear when their judges instruct them on how to draft an opinion just argued, the panel affirmed “the decision below for substantially the reasons given by the district court.” A footnote in the district court opinion hints at an evidentiary issue that is, in Perdue’s eyes, sufficiently contentious to bring him to the Supreme Court. In Note 6 of that opinion, Daniels wrote that although Perdue had submitted expert testimony to support his claims of substantial similarity, “substantial similarity is judged by the spontaneous response of the ordinary lay observer,” such that “expert analysis of the similarities between the two works is not determinative.” Perdue wants his experts heard because, he believes, their reports show similarities that the district court’s opinion glossed over. Represented by Luther Munford of Phelps Dunbar, Perdue argues in the cert petition that expert testimony, if proffered by the plaintiff in an infringement action, should play a role in determining “substantial similarity.” Random House, whose brief in opposition features Elizabeth McNamara of Davis Wright Tremaine as counsel of record, argues that the Federal Rule of Evidence that governs the admission of expert testimony “gives judges flexibility to not rely on such evidence when it would not �assist the trier of fact to understand the evidence or to determine a fact issue.’ ” Further, Random House argues that Daniels was not really stating a rule about the utility of expert analysis to the substantial similarity test — he was merely saying that these two reports in this particular case “ created no genuine issue of fact on the determinative issue of substantial similarity.” Perdue counters that Daniels is, in fact, invoking accepted law in the 2nd Circuit (and most others) holding that “substantial similarity” is to be decided by the layman. And thus, amid all of Perdue and Random House’s Sturm und Drang is an interesting puzzle: Should, as most circuits hold, “substantial similarity” be measured by the immediate, intuitive judgment of a reasonable layman without the benefit of expert instruction? Or, rather, do “specialists in forensic linguistics” and other experts have a role to play in this analysis? If the Supreme Court does grant certiorari, Random House can console itself with the fact that a Supreme Court case next year would provide a little free publicity for Dan Brown’s forthcoming sequel, The Solomon Key. — Sarah Rispin
OTHER CASES UP FOR REVIEW • 06-197, McGladrey & Pullen v. North Carolina State Board of CPA Examiners (S. Ct. of NC) Whether a court reviewing a state professional regulatory board’s decision that prohibits allegedly misleading commercial speech should review the record de novo to determine whether the speech is misleading and the prohibition constitutional. • 05-1424, MetLife v. Hawkins-Dean (CA9) Whether the 9th Circuit erred in reviewing de novo a benefit decision by an administrator of a plan regulated by the Employee Retirement Income Security Act that grants the administrator discretion in making benefit decisions. • 06-332, Brown v. Dekalb County, (Ct. of App. of GA) Whether McMillian v. Monroe County should be construed as raising a presumption that states exercise effective control over such autonomous officials as county sheriffs in order to categorize them as “arms of the State” for purposes of determining liability under 42 U.S.C.�1983. • 06-343, Qwest v. New England Health Care Employees Pension Fund (CA10) Whether production of privileged documents to federal law enforcement authorities in the course of federal investigations and pursuant to written confidentiality agreements waives the attorney-client privilege and the protections afforded to attorney work product with respect to private litigants in separate proceedings.

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