Da Vinci Legacy Author Loses on Appeal

Dan Brown and Random House, Inc. v. Perdue (2nd Cir. April 18, 2006)

This appeal involves a copyright infringement action between Appellant Lewis Perdue (hereinafter “Appellant” or “Perdue”), author of two novels, The Da Vinci Legacy (1983) and Daughter of God (2000), and Appellees Dan Brown, Random House, Inc., and several associated entertainment companies (collectively “Appellees”), who respectively wrote, published, and made into a movie, the best-selling fiction novel The Da Vinci Code (2003). After Appellant publicly alleged that Appellee Brown had, without permission, appropriated content from his two novels in creating The Da Vinci Code, Appellees filed suit against Perdue in federal court, seeking a declaratory judgment that they had not engaged in copyright infringement. Appellant promptly counterclaimed against Brown, his publisher, and the movie studios, seeking injunctive relief and $150 million in damages. In response to motions for judgment on the pleadings and summary judgment, the District Court for the Southern District of New York (Daniels, J.) ruled in Appellees' favor, granting declaratory relief to Appellees and dismissing all of Appellant's claims.

“For the purposes of the summary judgement motion, [Appellees conceded] that they had access to Perdue’s books” whose valid copyrights were undisputed. Thus, the question under appeal was “‘whether, in the eyes of the average lay observer, [The Da Vinci Code is] substantially similar to the protectible expression in [Daughter of God ].’” Unfortunately for Perdue, the Second Circuit agreed with the district court below that the works were not substantially similar:

In the case before us, the district court first distinguished between noncopyrightable and copyrightable work, following “a principle fundamental to copyright law,” that “a copyright does not protect an idea, but only the expression of an idea.” . . . . As to the copyrightable material in Appellant's books, the court concluded, on the basis of a comparison of “the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting of the [two sets of books],” that “no reasonable trier of fact could find the works substantially similar.” On that basis, the court granted summary judgment in favor of Appellees. Having considered the matter de novo, we now affirm the decision below for substantially the reasons given by the district court.

Holding: Judgement of the district court is affirmed.

Other: Lewis Purdue maintains a blog, called the Da Vinci Crock, which provides his personal insight on this legal dispute.