Presenting Fiction as Fact
The James Frey (A Million Little Pieces) case shows how Random House/Doubleday benefits when fiction is misrepresented as fact. Not surprisingly, their lawyers have done the same thing in their lawsuit they brought against me.
One substantial reason I was denied a trial at the District Court level, is that Random House presented "faux history" as real history (something that is at issue in the London case as well.) History is not protectible, but fictional expression of history is. Many of the fictional "faux history" aspects of The Da Vinci Code first appeared in my works.
The judge in my case, however, mistook my fictional creations about history as real history and filtered those out those as not protected.
But the Random House lawyers persisted in their response to my appeals brief. On page 17 of their filing, they write,
"The Gnostics were early dissidents from the dominant branch of Christianity and their beliefs were excluded from the New Testament commissioned by Constantine, which bears close relation to the New Testament of today. (A-116,A-378)."
The lawyers are presenting that statement as FACT ... just as it was presented as FACT in The Da Vinci Code.
But either the lawyers don't know their history or they're deliberately presenting the court with fiction as fact -- because that is not history at all.
One of the best sources on just what is a fact is Truth and Fiction in The Da Vinci Code : A Historian Reveals What We Really Know about Jesus, Mary Magdalene, and Constantine by professor Bart D. Ehrman. In that work, Ehrman debunks that fictional fact.
Ehrman's discussion of this can be found in a number of places, primarily Chapter Four. One of those is page 81.
The point of this is to offer an example (there are many) of how presenting fiction -- especially stolen fiction -- as fact can be very profitable and (in my case) to make sure that justice is not done.
One substantial reason I was denied a trial at the District Court level, is that Random House presented "faux history" as real history (something that is at issue in the London case as well.) History is not protectible, but fictional expression of history is. Many of the fictional "faux history" aspects of The Da Vinci Code first appeared in my works.
The judge in my case, however, mistook my fictional creations about history as real history and filtered those out those as not protected.
But the Random House lawyers persisted in their response to my appeals brief. On page 17 of their filing, they write,
"The Gnostics were early dissidents from the dominant branch of Christianity and their beliefs were excluded from the New Testament commissioned by Constantine, which bears close relation to the New Testament of today. (A-116,A-378)."
The lawyers are presenting that statement as FACT ... just as it was presented as FACT in The Da Vinci Code.
But either the lawyers don't know their history or they're deliberately presenting the court with fiction as fact -- because that is not history at all.
One of the best sources on just what is a fact is Truth and Fiction in The Da Vinci Code : A Historian Reveals What We Really Know about Jesus, Mary Magdalene, and Constantine by professor Bart D. Ehrman. In that work, Ehrman debunks that fictional fact.
Ehrman's discussion of this can be found in a number of places, primarily Chapter Four. One of those is page 81.
The point of this is to offer an example (there are many) of how presenting fiction -- especially stolen fiction -- as fact can be very profitable and (in my case) to make sure that justice is not done.
posted by Lewis Perdue at 8:48 AM
19 Comments:
Do you have that exact assertion in your book? I have a hard time hanging on to this fictional history. It must be in the analysis graph somewhere.
If read Ehrman correctly it was a group decision and not a decree from Constantine? It was was your original creation that it was, and Brown copied it into Teabing?
Correct.
But it was not just the concept taken, but the context, language and even the characters involved in the scene:
(DVC)
"I thought Constantine was a Christian," Sophie said.
"Hardly," Teabing scoffed. "He was a lifelong pagan who was baptized on his deathbed, too weak to protest. In Constantine’s day, Rome’s official religion was sun worship—the cult of Sol Invictus, or the Invincible Sun—and Constantine was its head priest.
(DoG)
“But Constantine is known as the first Christian emperor.” Zoe said.
“Only on his deathbed,” Seth said. “Sol Invictus, the Sun God was his main deity until the last hours of his life. For most of his life, Christianity was a political power tactic for Constantine, a method of governing rather than a religion.”
Yeah it's substantially similar. It takes place between one different character teabing as opposed to Langdon, but if you made up this assertion about Constantine, and it's found nowhere else, it's yours.
"Christianity became a state religion in 324 although paganism was not persecuted. In 325 was held the great Church Council of Nicaea, in which the court sided against the Arians. Yet it was only shortly before his death that Constantine received baptism."
Pretty easy to find this same claim"
History Guide
Of course your exact context and language mostly copied still supports your claim adequately even though this is a widely known fact, or so it seems.
Precisely!
The historical claim is not protectible, but the expression of things, context, characters, language etc. ARE!~
Also, realize that Teabing is the Constantine expert ... as is Seth ... so they play the same role in the scene ... especially given similar statements previously.
The other technique here is that Brown switches between Langdon and Teabing in the explanations of background just as I switch between Seth and the old priest.
Technique is not protected, but the way he switches the very similar dialogue and presentation in the precise same way is yet another indication that this is not innocent.
I think so. It's definitly copied. You couldn't have something that identical from chance. My statistical knowledge is basic, but the random odds of something this similar are longish at best. The deathbed conversion is the generic fact, but the Constantinian "decree" is fictional. I think I've got it now.
And there's more ... a lot more in the Olsson Report the trial judge would not allow to be admitted into evidence.
MSN news had an update to the litigation across the pond involving Dan Brown plagiarism trial re: Holy Blood, Holy Grail.
No individual credit was given for the reporting, but it was 'mentioned' that Judge Daniels dismissed your suit.
Is the media so far behind that they don't know that there is an appeal going on?
I'm beginning to think that the media is getting their news off internet and copying off each other.
The media tend to overgeneralize, oversimplify and frequently have no clue that even the best of judges do make mistakes.
The appeals process is a murky mystery to most.
Yeah they don't actually have anyone on it. Maybe the AP book guy Hillel Italie would but that's about it.
Hi
I work for intellectual property attorneys in the UK, and found your website and the recent publicity interesting, and somewhat misleading. Until I saw your post dated Feb 27, 11:26:33 in this thread I thought you were also under the impression that copyright protects themes, as most websites seem to talk about Dan Brown copying the themes from your book being a copyright infringement.
This is of course wrong - copyright (literary in this case) only protects expression i.e. the exact words used. Consider West-side story for example - the storyline and themes are from Romeo and Juliet, but this would not be an infringement of Shakespeare's copyright (if it was still in force) as different expression (words) are used.
The other important point is that there is only infringement if a substantial part of the work has been copied. The meaning of substantial is qualitative not quantitative. So if for example, (and borrowing from musical copyright for a moment) a recognisably famous chorus was taken from a song, if that chorus was only 10% of the whole song it could still amount to a substantial part of that song if copied, and there would be infringement of copyright.
I have read Dan Brown's book but not yours, so I cannot comment on how many theme similarities there are , or the number of expression similarities, but from the comments I have seen so far it strikes me that the majority of the similarities are theme-based, and the expression similarities do not amount to a substantial taking of the work. On the face of it there seems little chance of proving copyright infringement, but it will be interesting to see what the judge has to say.
BV
BV ... thanks for your comments.
Random House seems to be the only party which persists in trying to make the world think that themes, facts and other generalities are what I am trying to protect.
This is why they have tried so hard to keep matters from coming to trial and convinced the District Court NOT to admit the expert witness analysis or his data into evidence.
As shown by that analysis, the extensive and comprehensive plagiarism of my work consists of several hundred very specific instances of infringed expression.
In addition, many more have been documented after that report had been completed.
A complete archive of all legal filings can be found here.
Interestingly enough, the most prominent, highly acknowledged and oft-cited expert on U.S. Copyright, Melville B. Nimmer seems to indicate that there are enough similarities between West Side Story and Romeo and Juliet to sustain an infringement judgement.
In addition, U.S. courts have consistently ruled that plagiarism can be found even without exact copying word-for-word, that the structure, sequence of events, characters, motivations and other significant details constitute expression.
Actually it was the expert evidence that made me think that you were unlikely to win the case, as it seems to discuss themes more than the actual words used ('65% plot points similar' for example).
As such, the 'several hundred very specific instances of infringed expression' seem to me to be more like specific instances of similar themes, a number of which are already in the public domain.
I don't think expert evidence is of particular use anyway as the comparison is factual not subjective to opinion - and no doubt the opposition would be able to find their own expert to prove the opposite if such evidence was admissable.
With regard to Nimmer's commemts on Romeo and Juliet vs West-Side Story I dont think the situation is as clear-cut as you make out. He says that they are substantially
similar in expression although acknowledges that some courts might
fail to 'accept the above pattern as a sufficiently concrete expression of an idea
so as to warrant a finding of substantial similarity'. He also indicates that most courts deny protection for a plot, although if there is a sequence of events this can be persuasive (which I think is the point you are making about the US courts finding expression).
Incidentally I found a Yale Law Journal (see link:
http://www.yale.edu/yalelj/112/RubenfeldWEB.pdf)
which quotes Nimmer and concludes that Romeo and Juliet would not infringe West side story!
In your situation you have a sequence of events which will help, but is hardly conclusive as these things tend to determined on a case-by-case basis.
There are far, far more similarities than the plot points.
A general plot, theme or idea would not be protected, but U.S. courts have consistently held that "specific" expressions and events that drive the story are protected, especially if in the same order.
If the level of abstraction is too high, no protection.
But my case does not hinge on the plot points. Very similar language in conversations involving the same characters, same context ... and even a repeated mistake that is found no where else ... identical characters, motives etc.
In my case, these are facts that need a hearing, something that has been denied me so far.
Ok so it seems to me that the case will turn on whether or not the judge considers that the specific expressions allegedly copied by Dan Brown amount to a substantial amount of the work. Maybe that's why he's re-reading them ...?
I would think that's a fair assessment, along with the fact that -- in light of testimony -- he may want to look at specific points to determine what is "real" history (unprotected fact) and what is "faux" history (protected expression) that was made up for HBHG ...
Regardless of the verdict, it is clear that the HBHG authors are getting a detailed and scrupulous hearing on the issues.
I would be grateful to have the same opportunity, especially given that Random House brought suit against me (rather than the other way around).
Matt: You mean the ski is NOT purple?
"A lie, repeated often enough, will end up as truth." -- Dr. Paul Joseph Goebbels, Hitler's Minister of Propaganda
Obviously Random House, their legal filings and their public relations people have learned this well.
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