This lengthy judgment is a reminder that literary copyright can subsist in an author’s selection of historic events using selection in a wide sense. For copyright to subsist the author must have exercised intellectual creation in in coming to their selection. Further, this judgment is a reminder that in these types of cases, it is essential to keep in mind the distinction between subsistence of copyright (identifying the copyright work) and infringement of copyright (whether a substantial part of the copyright work has been copied). Additionally, just because subsistence of copyright is established and there are similarities with the allegedly copied work, that does not necessarily mean that copying has actually occurred or can be inferred.

Facts

The great niece of Boris Pasternak (poet and author of the famous novel, Doctor Zhivago) brought a claim for infringement of copyright in her novel “Lara: The Untold Love Story that Inspired Doctor Zhivago”, which tells the story of the love affair of Boris Pasternak and Olga Ivinskaya  The alleged infringement was the defendant, Lara Prescott, when she wrote her book, The Secrets We Kept, which is a work of historical fiction telling the story of a CIA operation in the late 1950s during the Cold War to infiltrate copies of Doctor Zhivago into the Soviet Union as a propaganda weapon.  Mr Justice Edwin Johnson, had to decide: (i) whether copyright subsisted in certain selections of events from Lara and (ii) whether these selections had been copied by Ms Prescott..

Both parties had used other books as source materials in writing their books. Further, Ms Prescott had received and read a copy of Lara in October 2016, by which time she had completed a first draft of her novel.

Johnson J also had to decide whether Ms Prescott had infringed the copyright in an English translation (the Legendes Translation) of a French work entitled “Légendes de la rue Potapov” by copying, from Lara, a very short extract from the Legendes Translation that had been quoted in Lara. The Legendes Translation was done by Marlene Hervey, commissioned by Ms Pasternak. The copyright was assigned from Ms Hervey to Ms Pasternak. Légendes de la Rue Potapov is the title of the French translation of the original book written in Russian (Legendes) by Irina Kosovoi, daughter of Olga Ivinskaya.

Decision

The Selection Claim

Ms Pasternak had gathered the allegations of infringement into Annex 2 to her skeleton argument.

Subsistence of copyright

It was common ground that: (i) Lara was a literary work; (ii) Ms Pasternak was the author of Lara; and (iii) Ms Pasternak owned the copyright in Lara. The first question was whether what was alleged to have been taken from Lara constituted Ms Pasternak’s intellectual creation.

There was also an issue between the parties as to whether the selections of events out in Annex 2, qualified for copyright protection as substantial parts of Lara. The question was whether: (i) the events listed were at too high a level of abstraction, as historical events, to allow their selection to qualify for copyright protection; and (ii) the selection of the events was not Ms Pasternak’s original work, but rather something derived from other sources.

Mr Justice Edwin Johnson accepted that copyright could indeed subsist in the selections of events in Lara, using “selection” in a wide sense to cover the selection, structure and arrangement of events and the forms of expression of events. This was so notwithstanding that the chapters also contained a large amount of material taken from other sources.

Johnson J worked through each alleged infringement in Annex 2. In each case, he found that the selection of events in Annex 2 was protected by copyright as a substantial part of the literary work that was Lara. By way of example, Johnson J found that although the bulk of the material comprising the events listed in Annex 2 from chapter 5 of Lara was not original to Ms Pasternak , the selection of these events constituted a substantial part of her intellectual creation in writing chapter 5. The selection of events in Annex 2 from chapter 5 was not a complete statement of all the events in that chapter, but could not be said to be too general or to exist at too high a level of abstraction to qualify for copyright protection.

Copying

However, Johnson J found that Ms Prescott had not copied any part of the selection of events and had therefore not infringed the copyright in Lara. To take just one example of an event in chapter 5 said to have been copied, although Ms Prescott admitted that she had written the scene in question after she had read Lara, Johnson J found that the arrangement of events in TSWK was utterly different to the arrangement of the event in Lara and any similarity was produced only by carrying out a grains of sand comparison exercise of the kind identified as illegitimate by Mr Justice Laddie in IPC Media v Highbury [2004] EWHC 2985 (Ch).

Overall, Johnson J found that, given Ms Prescott’s writing method, which involved the constant revision of her material, and constant re-reference to her sources, it was very difficult to say, without more, that she must have copied a particular detail from Lara simply because that detail first appeared in a draft of TSWK after she had read Lara. Ms Prescott might have used odd details picked up from Lara, Johnson J said, but they were too trivial to support selection copying. The evidence simply showed that Ms Prescott had used Lara as a secondary source.

Johnson J said that he would have reached the same conclusion if he had considered Lara as a whole. Lara and TSWK were fundamentally different works. Lara was a non-fictional historical work describing events and incidents, whereas TSWK was a work of historical fiction loosely based on real events. The two works were written in very different styles, with different content and different arrangement. Given that both works concerned the same historical events in the lives of Boris and Olga and both authors used the same principal source materials, it was not surprising that the sequence of events in each work followed the same basic chronology and that some of the same details appeared in each work. None of these areas of similarity came anywhere near establishing copying. Ms Prescott had taken no more from Lara than odd details which, quite correctly, were not said to be protected by copyright.

Translation Claim

The relevant part of the Legendes Translation was an English translation of the statement of crimes that the Soviet authorities said Olga had committed when she was sentenced to her first term of imprisonment, quoted in chapter 5 of Lara (the Accusation Act).

Johnson J noted that, in principle, copyright can exist in a translation. The translator will have exercised their own creativity in choosing how to express the original material in translation. Here, copyright did indeed subsist in Ms Hervey’s translation of the Accusation Act as a substantial part of the Legendes Translation, albeit that the intellectual creation used was at a fairly low level.

As for copying, Ms Prescott admitted in cross-examination that she had copied the text of the Accusation Act from Lara and had therefore indirectly copied the Legendes Translation .

However, Ms Prescott contended that her use of the quotation from Lara was not an infringement by virtue of s 30(1ZA) of the CDPA, which states that there is no copyright infringement by using a quotation from a work provided that: “(a) the work has been made available to the public, (b) the use of the quotation is fair dealing with the work, (c) the extent of the quotation is no more than is required by the specific purpose for which it is used, and (d) the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise)”.

Johnson J noted that the defence raises quite difficult points on the interpretation and application of this subjection, which might have engaged much more argument and analysis in another case where much more turned on the availability or otherwise of the defence.

Johnson J said it was clear that Ms Prescott’s use of the quotation was fair dealing with the relevant work, namely the Legendes Translation, within the meaning of paragraph (b).

As for “sufficient acknowledgement” in paragraph (d), this is defined in s 178 of the CDPA as “an acknowledgement identifying the work in question by its title or other description, and identifying the author unless— (a) in the case of a published work, it is published anonymously; (b) in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry”.

TSWK contained no acknowledgment identifying the Legendes Translation or Ms Hervey as its author. There was a general reference to Lara, but this fell well short of what was required to satisfy “sufficient acknowledgment” under s 178.

Further, the Legendes Translation was not a “published work”, as required in paragraph (a) of the s 178 definition, as it had been privately commissioned by Ms Pasternak.

Johnson J disagreed that the Accusation Act had, in effect, been published anonymously in Lara. The quotation of the Accusation Act was attributed in Lara to “Légendes”, indicating a reference to the French edition of the Russian work, Legendes. Therefore, the attribution was incomplete. In any event, publication in Lara of a quotation that comprised only a small part of the Legendes Translation was not capable of qualifying the Legendes Translation as a published work. Even if “published work” was assumed to include a quotation, it was difficult to see how its use in Lara qualified it as a published work. What was required in that situation was publication of the quotation, as publication is defined in the CDPA, not its use as a quotation in a different published work.

As for paragraph (b) of the s 178 definition, the evidence was that Ms Prescott had made no inquiries of Ms Pasternak, neither had her publishers or literary agents or anyone else acting on her behalf.

In Johnson J’s view, it was reasonable to expect Ms Prescott to have made inquiry, given that she was using a quotation that had clearly been translated. She had therefore failed to discharge the burden of showing that it was not possible to ascertain the identity of Ms Hervey by reasonable inquiry and the test in paragraph (b) of the s 178 definition was not satisfied.

This meant that the condition in s 30(1ZA)(d) was engaged. The test was whether it was impossible, for reasons of practicality or otherwise, for Ms Prescott to acknowledge either the Legendes Translation or Ms Hervey.

Given that it would have been possible to ascertain the identity of Ms Hervey by reasonable inquiry, Johnson J could not see that it would have been impossible, either for reasons of practicality or otherwise, for Ms Prescott to obtain that information. If this was possible by reasonable inquiry, it was not impossible for reasons of practicality or otherwise.

Therefore, the condition in s 30(1ZA)(d) was not satisfied and Ms Prescott could not rely upon s 30(1ZA).

Accordingly, the Translation Claim succeeded.  However, the judge noted that the relief to be granted would need further consideration, given that only a minor part of the overall claim, which did not involve infringement of copyright in Lara, had succeeded. (Anna Pasternak v Lara Prescott [2022] EWHC 2695 (Ch) (25 October 2022) — to read the judgment in full, click here).