What is copyright infringement?
If you have read The Da Vinci Code (DC) and The Holy Blood and the Holy Grail (“HBHG”) as I have, you have probably decided that they are very different books. You will not be surprised to hear that a UK High Court judge supports our view. So how is it that what would have cost a legal advice fee of about a couple of hundred dollars on the Sunshine Coast in Australia has cost over $US4.5M in London?
Although it sometimes depends on the idea, the smart money was on DC, as every copyright lawyer knows that copyright does not protect “the idea but the expression of the idea”; although it depends on the idea.
For instance, a story where boy meets girl, boy loses girl and boy gets girl back is not protected by copyright. It is just an idea, and many stories have this theme. What if the girl was a cowboy? This is a novel twist (or so John Wayne would have had us believe), but still just an idea. What if you went further still and copied some words from a cowboy film such as “giddyup” or “whoa boy”. This would be good evidence, but probably still not enough.
What needs to be copied is a “substantial part” of the original work. You engineers may measure a “substantial part” as comprising 15% or 20%, but in copyright law the test is one of “quality” rather than percentage. “Quality”; how do you measure that, I hear you say? Well, it is not easy, and can cost over $US4.5M a throw.
The bottom line is that sometimes, copying a lot less than 15% is clearly an unfair use of the sweat of someone else's brow, and that is wrong. Therefore, a percentage test may produce simple but grossly unfair results.
Where does this leave you? Well:
1. If someone copies a substantial part of your original work, you are quids in.
2. If someone copies part of your work, it could be a copyright infringement.
The big lesson to learn from this case is that if you have a copyright issue, try the Sunshine Coast first.
Listen to this episode on the Law Podcast