This introductory page is a brief summary of copyright law as relates to The Da Vinci Code and my previous works, The Da Vinci Legacy, and Daughter of God. This summary relies only on legal standards, verifiable data from the works in question and the expert analysis of the Forensic Linguistics Institute.

My works were all published and widely available many years before the Da Vinci Code, published in 2003. Specifically:

• The Da Vinci Legacy: published 1983
• Daughter of God: official publication date, January 2000. Books were actually available in stores in December 1999.
  

Significantly, my 1985 work, The Linz Testament, contains all of the relevant characters and plot points in Daughter of God. I returned to the themes of  that earlier novel because I felt it was significantly flawed in having too many characters and subplots and needed expanding in other areas.

This summary relies heavily on the legal profession's "Bible" on the subject: Nimmer on Copyright. (Nimmer, MB and Nimmer D, New York, Matthew Bender & Co. 2000) and on federal court standards regarding copyright infringement.

In a nutshell, the law protects "expression" but not:

• General plots,
• Ideas,
• Titles,
• Facts and
• "Scenes a Faire" ("similarities that are common to the genre or which are expected in a given situation.)

Except that similarities in those may be considered in the overall determination of whether infringement exists.

SUBSTANTIAL SIMILARITY

The legal buzzword for determining infringement is "Substantial Similarity."

• Substantial similarity is present in two works "…when compared in their entirety including both protectible and unprotectible material." Nimmer 13-90

• Violations are not limited literally to the text. Nimmer 13-30.5

• The plaintiff's body of work can be considered. If there is an absence of substantial similarity between one of the plaintiff's work and the defendants, but there is such substantial similarity when the plaintiff's body of work is considered, then infringement cannot be avoided. Nimmer 13-44

• If the material copied is quantitatively small, but it is qualitatively important, substantial similarity can be found. Nimmer 13-47 and 13-52

• Common Errors are seen as "the strongest evidence of copying…sometimes creating at least a prima facie case…." Nimmer 13-76

[Underlinings above are my emphasis.]

The courts have established two steps in determining infringement:

1. Extrinsic (Objective) Test
2. Intrinsic (Subjective) Test

Extrinsic (Objective) Test

Nimmer 12-32. The extrinsic test requires expert testimony, analytic dissection Nimmer, 13-37.

The elements of the extrinsic test as detailed by the U.S. Ninth Circuit Court include substantial similarities in:

• Sequence of Events
• Characters including relationships and motivations.
• Dialogue
• Mood/Style
• Setting
• Pace
• Theme/ Plot

A combination of many different elements may be sufficient to constitute infringement even if any one such element taken by itself would be trivial.

Both the Shaw case and Metcalf v. Bochco offer good pointers on how similar items need to be to establish infringement. See the whole cases (linked from this page) or this short excerpt for examples.

INTRINSIC TEST

No dissection and analysis, relies on "the response of the ordinary reasonable person." Nimmer, 13-37

A SUMMARY OF THE FACTS

Sequence of Events

More than 300 significant similarities appear in my works and in The Da Vinci Code. Those are detailed in the charts linked from below the Heroine similarities farther downnin this document.

In an analysis of more than 50 pivotal plot events, sixty-five percent of these – 65% – occur in the same order. For more information, see the plot event similarities table. 

In the significant case of Shaw v. Lindheim [this is a self-extracting file. Download and double-click to view] (919 F.2d 1353, The "Equalizer" case), the plaintiff, Shaw, submitted a list of 26 events which the court, in its written opinion found were "random" and overstated. However, despite those weaknesses, the court held:

"Even if none of these plot elements is remarkably unusual in and of itself, the fact that both scripts contain all of these similar events gives rise to a triable question of substantial similarity of protected expression."

Or this more extensive example which is identical in events, pacing, tone and sequence in both books:

1. A slain curator of art leaves a gold key,
2. concealed in a work of art,
3. painted on wood.
4. That work of art is named for the divine feminine at the center of the book.
5. The gold key is not a traditional key that opens a tumbler.
6. The key is left (with no instruction) for the book's heroine
7. who is, herself, a symbol of and related to the divine feminine.
8. The gold key allows access (but does not turn a lock) to a safe deposit box in a Zurich bank.
9. The safe deposit box holds yet another container which has a combination that must be set.
10. The contents of the container holds additional clues to finding the object of their search that send the hero and heroine to a foreign country.
11. The object of their search is a set of bones and documents relating to the divine feminine at the heart of the book.

 
There are many additional examples in the supporting documentation. And as extensive as that documentation is, it represents at most, 40 percent of the similarities which have been found so far.

In 1983, I made a historical error in The Da Vinci Legacy. I wrote that a work by Leonardo, The Codex Leicester, had been written on parchment. It was actually written on linen paper. According to John Olsson, head of the Forensic Linguistics Institute in the U.K., the only two places where this mistake appears is in my book, The Da Vinci Legacy and Dan Brown's book, The Da Vinci Code.

Characters including relationships and motivations

The hero and heroine are nearly identical in age, physical appearance, occupations, education, motivations, speech and even small personal and psychological quirks, even where these characters are unusual and non-typical for the genre.

Keep in mind the legal standards the courts use to assess these similarities:

"[T]he presence of so many generic similarities and the common patterns in which they arise do help the Metcalfs satisfy the extrinsic test. The particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element. Each note in a scale, for example, is not protectable, but a pattern of notes in a tune may earn copyright protection." Metcalf v. Bocho, CBS Entertainment [this is a ,pdf file. Download and double-click if your browser doesn't open it]; et. al. 294 F.3d 1069

A common "pattern [that] is sufficiently concrete . . . warrant[s] a finding of substantial similarity." Shaw, 919 F.2d at 1363 [this is a self-extracting file. Download and double-click to open it]; see id. ("Even if none of these [common] plot elements is remarkably unusual in and of itself, the fact that both [works] contain all of these similar events gives rise to a triable question of substantial similarity of protected expression."); id. (where main characters are both well dressed, wealthy, self-assured and have expensive tastes, "the totality of the[se] similarities . . . goes beyond the necessities of [defendants’ work’s] theme and belies any claim of literary accident"). Metcalf v. Bocho, CBS Entertainment et. al. 294 F.3d 1069 [This is a .pdf file. Download and doubleclick on it].

With that in mind take, for example, a few of the similarities in the Heroine, presented below. A similar set of these facts exists for the Hero and other major, and some minor, characters.

One particularly striking piece of expression which I created in Daughter of God and which appears in Brown's work, The Da Vinci Code details the symbolism surrounding the Heroine.

In both books, the heroine traces a family connection to the divine feminine goddess which is at the core of both books. Indeed, not only are they symbolically related, but their names reflect this connection. A detailed analysis can be found in PerdueBrown-The-heroines-are-the-Goddess.html.

The analysis clearly establishes that both books have the Great Goddess, Sophia, at their core (PerdueBrown-Goddess-is-Mary-is-Sophia.html).

The analysis also shows that Daughter of God heroine, Zoe, is symbolically the daughter of the Goddess. I chose this very carefully because Zoe, in the Gnostic Gospels, is the daughter of Sophia, the Goddess. In Da Vinci Code, the Heroine is named Sophie (Sophia) and she is supposedly in the bloodline of Mary Magdalene who, according to the Gnostic Gospels, is Sophia, the Goddess.

Please remember that in the plot events above, the entire quest in both books is for a box containing the bones of and documents relating to the goddess.

The courts have held that infringement does not have to be word-for-word. However, assessing whether similar dialogue is infringing needs to look at more than just the dialogue: are the same characters involved, acting for the same motivations with the same state of mind and moving toward the same goal?

Many of these exist between my works and The Da Vinci Code. Take the following example:

HEROINE THINKS CONSTANTINE WAS A CHRISTIAN

"I thought Constantine was a Christian," Sophie said. Teabing responds: "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. (DVC:232)

"But Constantine is known as the first Christian emperor." Zoe said. Seth responds: "Only on his deathbed," Seth said. "Sol Invictus, the Sun God was his main deity until the last hours of his life." (DoG:15-16)

The settings are different.

• France and England for The Da Vinci Code.
• The United States, Netherlands and Italy for The Da Vinci Legacy.
• The United States, Netherlands, Switzerland and Austria for Daughter of God.

As the Court wrote in Metcalf v. Bocho, CBS Entertainment et. al.: "the totality of the[se] similarities . . . goes beyond the necessities of [defendants’ work’s] theme and belies any claim of literary accident."

Like the hair and fiber evidence gathered by forensic experts at a crime scene and presented in court, one hair or ten fibers or even more may not be sufficient to convict a criminal. But it is a well-established principle in criminal law that there comes a point at which the sheer number of small items accumulates and elevates the case from one in which coincidence can be believable.

I have touched very briefly here on just a few of the hundreds of striking similarities between my works and The Da Vinci Code. Many more exist as regards the characters, motivations, antagonists, shapeshifters, villains (one named "The Schoolmaster" in Da Vinci Legacy and "The Teacher" in Da Vinci Code) and other important elements.

It's worth discussing the very relevant concept of "scenes á faire." The courts have defined scenes á faire as "incidents, characters or setting which are as a practical matter indispensable, or at least standard, in treatment of a given topic."(Barbara Chase-Riboud v. Dreamworks, 987 F. Supp. 1222).

Scenes á faire are also variously described as standard, genre-specific devices or characters.

A good example of scenes á faire, drawn from one of my first examples, would be the presence of a Swiss bank in a thriller. That's a pretty standard item. Likewise a safe deposit box in a Zurich bank. However, when you have an entire series of specific expressions relating to this, the events and items are elevated out of the scene á faire category and into the protected realm of expression. The devil is, foremost, in the details.

Remember also the court's writing, above, that the arrangement of unprotected items, including scenes á faire are like notes in a musical tune, not protected individually but protected as arranged.

Infringement Across Multiple Works

Because a lot of material from two of my novels, Da Vinci Legacy and Daughter of God shows up in Da Vinci Code, it is significant to understand how courts view the issue of multiple works:

"Conversely, suppose the plaintiff is the copyright owner of a series of works, and that there is an absence of substantial similarity between the defendant's work and any one of the plaintiff's works, but there is substantial similarity between the plaintiff's series as a whole and defendant's work. It would seem that the defendant should not be able to avoid liability by the fact that plaintiff's claim is predicated upon several different copyrights rather than a single one. See Warner Bros., Inc. v. American Broadcasting Cos., 530 F. Supp 1187 (S.D.N.Y, 1982) affirmed 720 F.2d 231 (2d Cir 1983)"

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