Dueling Da Vincis: Legacy vs. Code
"This is the most blatant example of in-your-face plagiarism I've ever seen.
There are literally hundreds of a parallels."
-- John Olsson, Director of the Forensic Linguistics Institute, quoted in the
New York Post.

Is it plagiarism? Take a look and you decide.

Find out more. Listen to Lew's March 31, 2004 interview
on KNBR's London Morning Show, San Francisco
(Windows Media Player required)

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To Reading and Comparing
Daughter of God and Da Vinci Code

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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:

Go ahead, drop me a line, lperdue@ideaworx.com



462 West Napa Street, Suite 201
Sonoma, CA 95476
(707) 939-6655 Fax: (707) 938-2755
Email: lperdue@ideaworx.com