20 March 2006

Dear Client: If we lose, it's all your fault. Love, Attorney

Taken from a client's perspective, if moving forward after losing a case is like learning to live with an open wound, having your own attorney publicly blame you for the loss would certainly be akin to a nice dose of salt. Bloomberg reports an instance of preemptive wound-salting by an attorney in the not-yet-decided DaVinci Code plagiarism trial:
A British trial over whether author Dan Brown plagiarized parts of his best-selling "The Da Vinci Code'' ended with the admission that one of the writers bringing the case was a "poor witness'' who didn't back his own claims.

Michael Baigent and Richard Leigh are suing Brown's publisher, Random House Inc., for copyright infringement. They claim Brown lifted the theory Jesus married Mary Magdalene and sired a royal bloodline from their non-fiction "The Holy Blood and the Holy Grail,'' published more than 20 years earlier.

A lawyer for the two men today admitted that Baigent, one of the main witnesses during the two-week trial at London's High Court, was "overawed by the circumstances'' and wasn't able to identify many of the ideas his case is based on. Still, the two men should prevail on their claim that Brown stole from their work, Jonathan Rayner James QC told the court.
Now there's a winning argument!

I've not followed the British trial particularly closely, but judging by what little I've read, the plaintiffs' case seems to have some inherent weaknesses -- most notably that it is inconsistent with the longstanding legal principle (on both sides of the Atlantic) that one cannot plagiarize true events. If Biagent and Leigh had represented their earlier work as one of fiction, then perhaps the numerous similarities in Brown's later novel (with a bit of other legal and factual support) would be actionable.

Instead, the Holy Blood authors have always claimed that theirs is a work of non-fiction -- that it is a true account of the events depicted. To my knowledge, it has not been alleged by Biagent and Leigh that any passages in The DaVinci Code were lifted from their book, only that the underlying premises were very similar. Given that, their chances of prevailing in their suit against Brown seem as slight as Bloomberg's would be against me, if I were to write a novel about a plagiarism trial based entirely on today's article.


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