Saturday, 22 April 2006
Further evidence of the music industry adage “where there’s a hit, there’s a writ”: the 2nd Circuit Court of Appeals in the United States has rejected an appeal by author Lewis Perdue in respect of his claims that Brown copied from two of Perdue’s works in writing The Da Vinci Code.
The case was not a simple copyright suit brought by Perdue; it was actually brought by Brown and his publisher, Random House, seeking a declaration of non-infringement. Perdue then counter-claimed for infringement. Brown succeeded at first instance, and the court of appeals just upheld that decision. The appeal decision is not available online, but most of the trial documents are, at a website maintained by the plaintiff Perdue.
The intriguing part is that Pierce Law IP News reproduced part of an email that Perdue sent them last month, in which Perdue claims to have received advice that he would have succeeded in going to trial in the 9th circuit, but not in the 2nd circuit, which he says is more publisher-friendly. He accuses Random House of forum-shopping by initiating suit in New York (2nd circuit) to preclude a trial in California (9th circuit).
Perdue’s remaining option would now be to convince the Supreme Court to grant certiorari.
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2 Responses to “YADVCL (Yet Another Da Vinci Code Lawsuit)”
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April 22nd, 2006 at 9:40 am
My law firm (Cozen) is preparing cert petition now.
I am also expanding the team to include experts with constitutional/scholarly experience.
And yes, as I indicated in the email referenced above, the adjudication of summary judgement in copyright infringement cases is vastly different in Ninth Circuit than in Second.
In the present case, the 2d Cir also failed to address any of the five main grounds included in our appeals brief, opting to rubber stamp the District Court and even referring in its opinion to the factually flawed descriptions of the books as described by the District Court (said inaccurate decriptions, ironically, lifted mostly word-for-word from the Random House brief).
The 2dCir also mistakenly repeated the Random House assertion that we had abandoned our infringement claims and failed to consider its own precedent that works be considered “as a whole.”
June 7th, 2006 at 2:14 pm
[…] The New York Times is reporting on a story by journalist Seth Mnookin that will appear in the forthcoming issue of Vanity Fair about author Lewis Perdue’s lawsuit against Dan Brown. I commented a couple of months ago on Perdue’s loss in the Court of Appeals for the Second Circuit. […]