If you like literature, and you like history, and you like film...well, this one's definitely for you. Although you'll probably need to like copyright law too!
Boris Pasternak and Dr Zhivago
Image source: Wikimedia commons
Many readers will know that the Russian author Boris Pasternak wrote Dr Zhivago, a classic first published in 1957. The book deals with events in Russia between the First Russian Revolution of 1905 and World War 2. The Russian authorities, of course, were never going to allow the publication of such a "seditious" book, so the manuscript had to be smuggled out of Russia in order for it to be published.
Dr Zhivago was a great success, with Boris Pasternak receiving the Nobel Prize for Literature in 1958. The book was also made into a hugely successful film that starred Omar Sharif in the lead role.
Anna Pasternak
Anna Pasternak is the great niece of Boris Pasternak. She is also the author of a biographical work entitled Lara: The Untold Love Story that inspired Doctor Zhivago.
Lara Prescott
Lara Prescott is totally unrelated to the Pasternak family. She is the author of a historical novel entitled The Secrets We Kept.
The High Court case
Anna Pasternak sued Lara Prescott for infringement of copyright, the copying complaint related to the "selection and arrangement" of events presented in Pasternak's biographical work. The case was heard in the UK High Court, Pasternak v Prescott (2022) EWHC 2695 (Ch). On 25 October 2022 the High Court dismissed the selection and arrangement infringement claim . What follows is a discussion of some of the major issues.
A work of fiction that copied a work of non-fiction
This case dealt with something rare, a work of fiction that is alleged to have infringed a work of non-fiction. Commentators have pointed out that another fairly recent example of this was the Da Vinci Code case, the UK case of Baigent v Random House (2007) EWCA Civ 247. In that case the court dismissed a claim that Dan Brown had in his book The Da Vinci Code infringed the copyright in the book called The Holy Blood and the Holy Grail.
Ideas and expressions of ideas
It is important to remember that copyright law protects the expression of an idea rather than the idea itself. This means that a work of non-fiction protects the expression of the facts rather than the facts themselves. There will only be copyright infringement where the particular expression of the facts has been reproduced.
The works in issue
Anna Pasternak's work Lara: The Untold Love Story that inspired Doctor Zhivago is a biography of Boris Pasternak's lover, Olga Ivinsaya. Lara Prescott's work, The Secrets We Kept, is a novel that also focuses on Olga's life, as well as the writing of Dr Zhivago and the book's eventual publication in the USA.
The infringement claim
Anna Pasternak's copyright claim was that a substantial part of the "selection, structure and arrangement" of her book had been copied by Lara Prescott. But Anna Pasternak shocked the court by admitting that she had never actually read Lara Prescott's book, something the judge described as "extraordinary". The judge went on to say that Anna Pasternak's "essential motivation for bringing this action was her perception... that the defendant had committed a form of identity theft".
The judge surmised that Anna Pasternak's motivation for bringing the action was "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".
The selection, structure and arrangements claim
Anna Pasternak claimed that seven chapters of The Secrets We kept reproduced the selection, structure and arrangement of Lara: The Untold Love Story that inspired Doctor Zhivago. But the judge did not find copying, saying that the two books were "fundamentally different works", and that they had been "written in very different styles". At worst, said the judge, there had been 'use of the odd words or phrases or other detail".
The judge did not reach this conclusion easily – he devoted a whopping 350 paragraphs to the analysis of each allegation of copying and found each allegation to be wanting. A word to practising lawyers out there – are you quite sure you eventually want to become a judge?
Legal costs
The judge ordered Anna Pasternak to pay 99% of Lara Prescott's legal costs, on the basis that Lara Prescott had been successful in practically the entire claim.
Copyright cases are surprisingly rare given how important this field of law is.
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