Does a historical novel infringe copyright?
A novel, “The Secrets We Kept”, by Lara Prescott, does not infringe copyright subsisting in a non-fiction, historical book called “Lara: The Untold Love Story That Inspired Doctor Zhivago”, written by Anna Pasternak (a descendant of Boris Pasternak). That was the conclusion of Mr Justice Edwin Johnson in a judgment published on 25 October 2022 (Pasternak v Prescott).
Pasternak claimed that Prescott had copied from Lara a substantial part of the selection, structure and arrangement of facts and incidents that she had created. Pasternak also claimed that there was infringement of copyright in an English translation of parts of a French work titled Légendes de la rue Potapov through copying an extract of this text in Lara.
Following an extensive trial concerning liability, the judge reviewed all of the individual allegations of copying in detail and found that the first claim failed. He said he also reached the same conclusion by considering the material as a whole: the defendant did not copy from Lara the selection of the events in the relevant chapters of her novel or any part of that selection:
“The essential reason for this is that Lara and TSWK are fundamentally different works. Lara is a non-fictional historical work … TSWK is a work of historical fiction. It is based on real events, but those real events have been woven into the story devised by the Defendant, and have themselves been adapted to suit the story … TSWK is a work of fiction, loosely based on real events. This fundamental difference between the two works is apparent on a first reading of the two works.”
In addition, the two works are written in very different styles, with different content and different arrangement. These differences are apparent in the chapters of each work.
Both authors had used the same primary sources, and the defendant admitted using Lara as a secondary source, so it is not surprising that they followed the same basic chronology and share some details. But the judge added: “None of these areas of similarity or overlap seem to me to come anywhere near establishing that the Defendant copied the selection of events in the relevant chapters of Lara, or any part of that selection. … The evidence demonstrates that the Defendant took no more from Lara than odd details which, quite correctly, are not said to have been protected by copyright.”
However, he found that the translation claim succeeded as copyright subsisted in the translation of the Accusation Act in the Legendes translation, which was assigned to Pasternak, and Prescott indirectly copied the translation by use of a quotation taken from Lara.
Historical fiction is an increasingly popular genre, and this judgment will no doubt be reassuring to its writers, publishers and readers! It has a flashback to the Da Vinci Code case from over a decade ago. Thankfully no codes have been smuggled into this more recent judgment.