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A Southern District of New York judge last week ruled that the best-selling novel “The Da Vinci Code” did not infringe on a copyright of a book published years earlier by another author. In Dan Brown and Random House, Inc. v. Lewis Perdue, 04 Civ. 7417, Lewis Perdue claimed Brown’s popular book infringed on his novel “Daughter of God,” published in 2000. He sued for $150 million in damages. Soon after the publication of “The Da Vinci Code” in 2003, Perdue contacted Random House claiming there was potential infringement. His accusations also appeared in press reports and on the Internet. Perdue was on the verge of filing a lawsuit when Brown and Random House initiated their action, which asked Judge George Daniels for a declaratory judgment concluding there was no infringement by Brown. Judge Daniels wrote that copyright infringement “requires a detailed determination of the works themselves.” The judge offered just such a detailed analysis after completing a side-by-side comparison of the novels. When direct evidence of copying cannot be proven, a plaintiff can look for “substantial similarity of expression in the respective works,” Daniels said. “The test for substantial similarity,” he continued, “is whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” The tension in many of these cases, Daniels pointed out, is the “elusive” difference between an idea and its expression. Copyright law does not protect ideas, the judge said, confirming a long-established doctrine. But an expression of an idea is protected. Differentiating between the two remains a challenge in these types of cases. Daniels provided a substantial analysis of the plots, themes, characters and other characteristics of the two books. In each instance, he found some similarities. Both books, for instance, involved ancient religious mysteries centered around women in early Christian history. Both also included male heroes and were fast-paced thrillers. In “The Da Vinci Code,” two characters chase down the Holy Grail while being pursued by a renegade monk out to murder anyone who threatens to reveal a secret that has lasted for centuries. The link to Leonardo Da Vinci is that the artist belonged to the group that has protected this secret for centuries. The secret of the Holy Grail, it turns out, is that the biblical character, Mary Magdalene, secretly wed and had children with Jesus. Perdue’s “Daughter of God” tells the story of a second messiah named Sophia, who was murdered by the Romans in the fourth century. The modern-day hero and heroine in the book are pursuing the Shroud of Sophia that could reveal the secret existence of Sophia to the world. Vatican and Russian intelligence groups are also competing for the shroud. “[C]opyright protection does not extend to thematic concepts or scenes which must necessarily follow from similar plot situations,” the judge wrote. None of these similarities, he found, amounted to copyright infringement. “Any slightly similar elements are on the level of generalized or otherwise unprotectable ideas,” Daniels concluded. Elizabeth McNamara of Davis Wright Tremaine represented Brown and Random House. Donald David of Cozen O’Connor represented Perdue.

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