“This is Doctor Zhivago. May it make its way around the world”, Boris Pasternak is to have said to the envoy of an Italian literary agent. It is indeed still doing so, making its way particularly around the English High Court and into the Law Reports.

Anna Pasternak, the great-niece of Doctor Zhivago author Boris Pasternak, brought a claim for copyright infringement in the High Court of England & Wales. Pasternak’s claim alleged that Lara Prescott’s historical novel, The Secrets We Kept, infringed the copyright in the “selection and arrangement” of the events presented in Pasternak’s biographical work Lara: The Untold Love Story that Inspired Doctor Zhivago.

Dismissing the “selection and arrangement” claim in full, the High Court gave a detailed judgment on 25th October 2022 which affirms the role of copyright protection as extending to original expression and not ideas themselves.

Every so often an intellectual property case comes along that really does have it all. On this occasion, first and foremost, it resulted in a highly insightful judgment, which helpfully summarises an interesting aspect of copyright law, where a work of fiction is alleged to have infringed the literary copyright in a prior work of non-fiction. It also comprised a rare factual matrix made up in large part of passion, intrigue, espionage, romance, suffering and CIA- sponsored anti-Soviet propaganda, but which was ultimately a story about the triumph of the human spirit. All these elements have come together to result in a penetrating analysis of the current state of play of literary copyright infringement involving authors drawing on historical sources, interwoven into the rich fabric of mid-twentieth century Cold War geopolitics.  

Introduction

Copyright infringement cases involving allegations that the author of a work of fiction has infringed the literary copyright in a prior work of non-fiction are rare in the UK. One has to go back to the well-known case of Baigent v Random House [2007] EWCA Civ 247 (the “Da Vinci Code case”) in which it was asserted (unsuccessfully) that Dan Brown’s fiction novel, The Da Vinci Code, infringed copyright in a book called The Holy Blood and the Holy Grail which was described by the Court as “a work of historical conjecture”.

From first principles, it is easy to see why such claims are rare: copyright famously “protects the expression of ideas, not the ideas themselves”[1]. That means that works of non- fiction will attract copyright protection in the expression of the facts which those works present, but not the facts themselves. Therefore, where a work of historical fiction seeks to develop those same facts in the context of fiction, a non-fiction author will struggle to make out infringement unless they can establish that the particular expression of those facts – and not merely the facts themselves – has been reproduced in the allegedly infringing work.

The recent case of Pasternak v Prescott [2022] EWHC 2695 (Ch) was another case in which a non-fiction author sought to establish infringement against an author of historical fiction. The case provides a fresh survey of the difficulties of such an endeavour, and also contains some particular curiosities.

Facts

Doctor Zhivago was the only novel of Russian poet Boris Pasternak, and he was well-aware that its criticism of the Soviet revolution, though not severe, would still make it impossible for the book to get past the Soviet censors. He was, however, persuaded to pass it to an Italian publisher for it to be translated and published abroad, knowing full well that this would cause some severe vexation to the authorities in the USSR. Unsurprisingly, given that by the late 1950s the Cold War was in full swing, the CIA decided it could be an invaluable propaganda coup if they could have the book printed in Russian and smuggled back into the USSR – a samizdat operation in a sense, although on a more sophisticated, CIA-backed level. The immense power of great literature in changing minds and hearts was not to be underestimated, and it is this CIA campaign which forms a backdrop to the defendant’s novel. Other, more infamous anti-communist CIA operations of the era, such as the one involving the Cuban leader Fidel Castro and exploding cigars (yes, it seems there actually was such a project), came somewhat later and were nowhere near as subtle or arguably potentially as powerful, as that which surrounded Doctor Zhivago.

The claimant’s work, Lara: The Untold Love Story That Inspired Doctor Zhivago (“LARA”), is a biography of Olga Ivinskaya, a lover of Boris Pasternak and speculated inspiration behind the character of Lara Antipova in Doctor Zhivago. In David Lean’s 1965 multiple-Oscar-winning film adaptation of the book, the character of Lara was played by English actor Julie Christie, with the late Omar Sharif in the role of the eponymous Doctor. The defendant’s work, The Secrets We Kept (“TSWK”), is a novel with two narrative strands: an Eastern strand focusing on Olga’s life, her relationship with Boris and involvement in the writing and dissemination of Doctor Zhivago; and a Western strand narrating a fictional account of two female CIA spies tasked with publishing copies of Doctor Zhivago outside the Soviet Union and of smuggling copies of Doctor Zhivago into the Soviet Union where it had been banned, as a means of anti- Soviet propaganda.

By the time of trial in July 2022, the claimant’s principal claim was that the defendant had copied, from the relevant chapters in LARA, a substantial part of the “selection, structure and arrangement” of facts and incidents which the claimant is said to have created when she wrote LARA (referred to as “the Selection Claim”). This formulation arose, in part, because the defendant had conducted an extensive analysis of the claimant’s work to reveal that large portions of it had been copied verbatim and seriatum from prior works (which the judgment acknowledges at §139). Accordingly, the claimant could hold no copyright in those portions of text as they were not original to her; the claimant’s position therefore was that the selection, structure and arrangement of those events were original and attracted copyright.

The claimant also ran a further, minor claim in relation to a passage translated from a book called Légendes de la Rue Potapov, the autobiography of Olga’s daughter, Irina. The claimant had commissioned a translation of some 22,000 words of Légendes from French into English, of which 55 words (which comprised sentencing remarks from a Russian court which committed Olga to the Gulag) were admitted by the defendant to have been copied. After issuing her claim, the claimant acquired the copyright in this translation and added this as a separate, discrete claim; this was called “the Translation Claim”.

Claimant’s motivation in bringing the claim

A striking feature of the case is that the claimant asserted, in her written and oral evidence, that she had never read the defendant’s work, either before or since issuing proceedings. This did not escape judicial comment:

“It struck me as extraordinary that an author could bring a copyright claim, claiming infringement of the copyright in their own book, without actually having read the book which is alleged to infringe their copyright…. The Claimant explained in her evidence however that she had commissioned a review of the two books, and I assume that her case in this action derives from that review. It would have been interesting to see that review, but it was not available. It may be that it is said to be subject to legal professional privilege. I was told by [the defendant’s lead counsel] that his instructing solicitors had sought a copy of the review, but that the review had not been provided. Odd as all this is, I accept the Claimant’s evidence that she has read very little of TSWK. It was clear from the Claimant’s evidence that her essential motivation for bringing this action was her perception, based upon what she was told by others and based upon the publicity for TSWK, that the Defendant had committed a form of identity theft.”

This approach to bringing a copyright infringement claim brings to mind another work of fiction, Franz Kafka’s The Trial, although perversely turned on its head. The Trial is the story of a man, Josef K., arrested and prosecuted but with the nature of his crime revealed neither to him nor to the reader. In Pasternak v Prescott, it was the nature of the claimant’s claim itself that was not initially particularly clear to the defendant or the Court.

The claimant’s motivation for bringing her action seemed to be the protection of her and her family’s good name (and to her mind only the claimant had the right to tell her family’s story) rather than her copyright – an affray which in a strange way perhaps mirrored the “struggle for ideas” between the two Cold War superpowers themselves. The forum chosen for the claimant’s struggle was never the most appropriate given the nature of the claimant’s grievance. Whilst Mr Justice Johnson had found that in LARA there was a sufficient degree of the claimant’s own intellectual creation in order for copyright to subsist in the work, subsistence is obviously only one of the issues on which the claimant needed to succeed to achieve a positive result.

It is interesting to wonder what odds the late Omar Sharif (himself a well-known gambler, horse-racing aficionado and a top-ranked world-famous Bridge player) might have given on the successful outcome of the action brought by the claimant.

The Translation Claim

This section was described by the judge as a “minor” aspect of the claim, hence we will deal with it first, before moving onto the more substantive Selection Claim. In respect of the Translation Claim, the nub of the dispute at trial was whether the defendant’s use of the 55-word extract of the Légendes translation could find immunity in the defence under section 30(1ZA) Copyright Designs and Patents Act 1988, which required (amongst other elements) that the defendant establish: (i) that the use of the quotation had been fair dealing and (ii) that the quotation had been accompanied by a “sufficient acknowledgement”.

As to (i), the judge accepted that the defendant’s use was fair dealing; the defendant had acted in “good faith” and she had used no more of the translation than was required to convey the terms of the prison sentence imposed on Olga.

As to (ii), the defendant relied on (amongst other matters) the fact that she had included the claimant’s work in her acknowledgements, and the fact that the claimant’s work had acknowledged Irina herself (and not the French translator) in respect of the extract. This limb of the defence failed, as the judge held that the defence required a sufficient acknowledgement of the author of the excerpt – namely, the translator of the French edition into English – and not the author of the work in which the extract had been reproduced (namely, the claimant). Further, although the identity of the translator could not have been ascertained from inspecting the claimant’s work (which credited Irina, and not the translator), it ought to have been apparent that Irina could not have authored the extract in English and therefore the defendant ought to have made enquiries as to the identity of the inevitable translator.

The Selection Claim

The claimant’s case on the Selection Claim was that seven of the 11 chapters in the East section of TSWK reproduced the selection, structure and arrangement found in seven of the 12 chapters of LARA. As an illustration of how this case was put, the claimant relied on seven events abstracted form chapter 5 of LARA, which were said to be copied in chapter 1 of TSWK:

• Olga discovering her pregnancy and the conditions of her confinement in the Lubyanka being eased.
• Olga being told during interrogation that she is being taken to see Boris; then being taken in a van to another government building, to a morgue.
• Olga being taken back to her interrogator, where Irina’s English teacher is brought in to confess.
• The teacher later writes to Olga to apologise.
• Olga suffers a miscarriage, brought on by her experience in the morgue.
• Irina’s reflections on the miscarriage.
• Olga sentenced and reference to

Applying the copyright subsistence standard under Infopaq,[2] the judge held that the selection, structure and arrangement asserted by the claimant were “original” works of the claimant. In doing so, the judge accepted the claimant’s submission that the Infopaq test for originality – namely the author’s “own intellectual creation” – was a “relatively undemanding threshold.” He then proceeded to examine each allegation of copying in respect of each part of the selection, structure and arrangement in question. In a detailed analysis, the judge declined to find copying in respect of any. The reasons for his findings were fact-specific, but many could be summarised as follows:

• Many of the scenes or choices which the claimant alleged were copied had been alighted on by the defendant prior to the defendant having been sent a proof copy of LARA by her literary agent;
• Many of the scenes were chronological in order;
• Some of the scenes or choices had been derived from the same historical sources, including Olga’s own autobiography, which both the claimant and the defendant had used;
• Some of the scenes or choices simply bore little resemble to those said to have been copied from LARA – they were too differently expressed, or appeared in too-different a context in TSWK as compared to LARA. 
• Many of the similarities had in fact been produced by an artificial legal exercise which had produced the appearance of “similarity by excision”, when the reality of the two works revealed “differences between the relevant parts of the two works, in terms of the selection of events, [which] are too great for a finding of selection copying.”

Having devoted some 350 paragraphs to a detailed analysis of each and every allegation of copying and found each to be wanting, the judge reinforced his conclusion of non- infringement by finding that Lara and TSWK “are fundamentally different works” (§408), a “fundamental difference” which was “apparent on a first reading of the two works” (§408), “written in very different styles, with different content and different arrangement” (§409). The judge found that the defendant had done no more than the “use of odd words or phrase[s] or other detail” from the claimant’s book (§411), which fell far short of the threshold for copyright infringement.

The Costs Hearing

In a separate costs hearing, on 2nd December 2022, Mr Justice Edwin Johnson ordered the claimant to pay 99% of the defendant’s legal costs, on the basis that the defendant had won substantially the whole claim, with a 1% reduction to reflect the claimant’s success on the Translation Claim. As for damages, the claimant accepted a payment of £1.38, which reflected pro rata the amount paid by the claimant for the original Légendes translation.

Take-home remarks

There are two particular points in the judgment which should be noted. First, it seems clear that works of historical fact may always struggle against works of historical fiction, unless there is clear evidence that there has been copying of the selection, structure and arrangement of facts and incidents, or some other protectable expression. Second, one should also beware the inference of copying where two authors have used the same historical sources.

Returning to our hypothetical question posed earlier – what might have been the experienced risk-taker Omar Sharif’s view of the odds of the claimant’s action succeeding? With knowledge of the pertinent background facts to this case (or, as he may have viewed it, the hand the claimant had been dealt) and in this hypothetical scenario his being extremely well-versed in English copyright law, Mr Sharif would almost certainly have concluded that the outcome of the case was as predicted and expected: the claimant had never possessed a winning hand nor, unwisely, had she even cared to look at her hand before making her decisive move.

Carpmaels & Ransford represented the defendant.

Footnotes

[1] Baigent v Random House [2007] EWCA Civ 247, [5]

[2] Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2010] FSR 20