'Da Vinci Code' author wins in US Supreme Court

The high court declined to hear a case alleging the bestseller used material from a California author.

A thriller writer from California has lost his bid to prove in court that Dan Brown, author of "The Da Vinci Code," illegally used his book as a template for the best-seller. "The Da Vinci Code" is one of the fastest selling adult novels of all time with more than 60 million copies snapped up by readers worldwide.

How Mr. Brown wove his tale of religious intrigue and deception into an estimated $1 billion publishing and motion picture bonanza is a mystery to many envious writers.

But author Lewis Perdue claims to know part of the secret to Mr. Brown's success. In a lawsuit, he accused Mr. Brown of using his 2000 book "Daughter of God" as a kind of blueprint for "The Da Vinci Code," misappropriating not only the central idea from his book but much of the plot, characters, motivations, and fictitious history and theology. He sought $150 million in damages.

A federal judge and a federal appeals court panel in New York dismissed Perdue's lawsuit. And on Monday, the US Supreme Court declined to take up Perdue's appeal.

Perdue isn't the only author claiming to see striking similarities between their own work and Brown's blockbuster money-maker. Some literary experts agree.

Two authors of a 1982 book, "The Holy Blood and The Holy Grail," filed a copyright infringement suit in London claiming Brown stole the essence of their book and used it for his own. A judge threw out the suit in April saying the central themes in "The Holy Blood and The Holy Grail" were too general to warrant copyright protection against Brown's novel.

In addition to the London case, a lawsuit was filed in August in federal court in Springfield, Mass., by John Dunn, author of the 1997 book "The Vatican Boys." He is asking a judge to order Brown, his publisher, Random House, and the motion picture companies Columbia Pictures and Sony Pictures to pay him $400 million in damages. The suit says Brown misappropriated "constituent elements" of his book such as its structure, patterns, characters, settings, thematic expressions, timing, and narrative sequences.

Lawyers for Brown have not yet responded to Mr. Dunn's suit. Their written response is due Tuesday.

The Da Vinci Code has spawned international controversy. Although the book is a work of fiction, some religious authorities have expressed concern that readers might embrace it as fact.

The book presents ideas that challenge a male-centric view of Christianity, highlighting instead the concept of the "divine feminine." It portrays Mary Magdalene not only as a trusted apostle of Jesus, but as his closest confidant and wife. This assertion is heresy to many Christians.

Brown acknowledged during the London trial that his wife, Blythe, conducted most of the research for the book. He said they used 39 books and hundreds of documents in preparation.

The precise issue at the Supreme Court wasn't the merits of the copyright dispute. Instead, lawyers for Perdue wanted the high court to decide whether the federal judge in New York who heard Perdue's lawsuit should have allowed the introduction of two expert assessments of the alleged infringement before deciding whether to toss out the suit.

US District Judge George Daniels ruled that the test is whether an "average lay observer" would find that the works to be substantially similar. Judge Daniels read the books and announced that he found no substantial similarities that would amount to a violation of copyright laws.

"It is a principle fundamental to copyright law that a copyright does not protect an idea, but only the expression of an idea," Judge Daniels wrote in his opinion. What is protected is the precise form in which an author presents the idea, not the idea itself, the judge said.

The judge acknowledged that Perdue's book and Brown's book shared common topics and themes. "All these similarities, however, are unprotectable ideas, historical facts and general themes that do not represent any original elements of Perdue's work," Daniels wrote.

Perdue's lawyers disagreed. "The claim is not that the original work was copied word-for-word," wrote Donald David in his brief to the high court. Instead, he said, "As the expert affidavits demonstrate, Brown took substantial elements of Perdue's novel, appropriated them as his own, and profited greatly from doing so."

Lawyers for Brown say the two books are different. "Da Vinci Code is a suspense novel built on complex puzzle clues, several of them connected to Leonardo Da Vinci's art," wrote Brown's lawyer Elizabeth McNamara. "In sharp contrast, Perdue's "Daughter" is a shoot-em-up thriller, involving Nazis and Russian mafia."

But others say those differences are only cosmetic.

One of Perdue's experts, Gary Goshgarian, an English professor at Northeastern University in Boston, found a correlation between 10 generic elements of both books. "When several generic elements in different novels fall into similar patterns, the whole effect transcends the generic and appears to be purposeful, non-accidental and suspicious," Professor Goshgarian's analysis says in part. He says that the similarities "create the suspicion that Brown, in 'The Da Vinci Code,' copied from Perdue's 'Daughter of God.' "

The other analyst, John Olsson, a forensic linguist, prepared a 12-page analysis of the two works. "I believe in this document I have given significant evidence of the overwhelming infringement of Mr. Perdue's book by Mr. Brown," he writes.

At issue in the Supreme Court appeal was whether the judge should have considered such expert analysis before ruling. The nation's appeals court judges disagree. Five appeals courts – including the Second US Circuit Court of Appeals in New York, where Perdue's case was heard – have ruled that such expert input is not permitted in such cases. Six other appeals courts – including the Ninth Circuit in California, where Perdue lives and works – permit introduction of expert assessments.

Perdue's lawyers had asked the Supreme Court to resolve the split between the circuit courts so the country could operate under a single rule for the use of expert testimony in copyright cases. If they had won on that issue, Perdue's lawyers would have asked for a full trial on whether Brown violated copyright laws in writing "The Da Vinci Code."