lewblogs
Check Out Da Vinci
Legacy News
March
31, 2004
SF Chronicle Prints
Article
On the Dan Brown Controversy
Reporter Adair Lara has done the
most exhaustive piece yet.
There are a couple of errors, however, that need to be corrected.
The corrections
are important
because it
will come back to haunt everybody when the lawsuit is filed. Lawyers
from the other
side will certainly question me on this and try to assert that I said
what I did not say.
That's why the errors need correcting quickly. The e-mail I sent
yesterday begins here:
Date: Tue, 30 Mar
2004 07:23:50 -0800
To:
dwiegand@sfchronicle.com
From:
Lewis Perdue <lperdue@ideaworx.com>
Subject:
Letter re: Da Vinci Books
Cc:
Adair Lara
Dear
Mr. Wiegand:
I
previously e-mailed this information to Adair Lara this morning and
respectfully request that you publish it as a letter. She has done a
very solid job with an enormously complicated and confusing subject.
There was a lot to absorb and many things that were very similar and
thus easy to mix up.
Specifically,
the piece says that John Olsson of the Forensic Linguistics Institute
developed 50 similarities and that two-thirds of those are scenes a
faire. That's not accurate.
The
data we sent shows more than 300 similarities which, in Mr. Olsson's
opinion represents less than 40 percent.
My
"two-thirds" statement applies to my ORIGINAL set of similarities that
I hastily crafted and sent to Random House _before_ obtaining legal
counsel or meeting John Olsson (via your piece on Richard Condon).
Yes,
a majority of that ORIGINAL list are probably scenes a faire, but _not_
the work that John and I have done. Random House has not seen the new
data and it, thus, commenting on my June 2003 communication.
What
is significant about the 50 MAJOR similarities that John developed is
that they are ALL the same in both books and 65 percent of them occur
in the SAME order.
Our
250+ data is 10 times the number of similarities found in the
landmark Shaw v. Lindheim case in which the plaintiff prevailed
even though the judge found the plaintiff's similarities were
random and not as consistent as ours.
The
statement by Professor Barnett regarding the repeated mistake that it
"doesn't matter anyway"contradicts Nimmer on Copyright
which is the foremost national authority on copyright infringement
cited by every court from the U.S. Supreme Court on down:
"[T]he
courts have regarded the existence of common errors in two similar
works as the strongest evidence of copying as a factual matter,
sometimes creating at least a prima facie case of copying." From Nimmer
on Copyright, 13.03[C], page
13-76
Technically
he could be correct and, it _might_ not matter if this were the ONLY
piece of copying, but the courts have consistently ruled that the
hundreds of other examples must be taken as a whole.
As
the Ninth Circuit Court of Appeals wrote in Shaw v. Lindheim "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." This was one of those Ninth Circuit decisions NOT
overturned.
The
analysis done by the Forensic Linguistics Institute clearly establishes
many significant and striking similarities in six of the seven
categories defined by the court:
- Sequence of Events
- Characters including relationships and motivations.
- Dialogue
- Mood/Style
- Setting (countries vary)
- Pace
- Theme/ Plot
With
regards to scenes a faire. In Metcalf v. Bocho,
CBS Entertainment (available on my
site as a .pdf) the Ninth Circuit extended copyright protection to the
ARRANGEMENT of scenes a faire: "
[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."
Finally,
because of the complicated and extensive nature of this issue, I am
opening all that data up for the public to see at:
http://www.davincilegacy.com/Infringement/.
Go
ahead, drop me a line,
lperdue@ideaworx.com
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