Fact versus fiction: Boris Pasternak and his muse Pasternak v Prescott [2022] EWHC 2695 (Ch)

Summary

The High Court found that a novel partly based on the real-life love affair of Boris Pasternak, author of the world-famous Doctor Zhivago, did not infringe the copyright in the selection, structure and arrangement of facts and incidents contained in a non-fictional account of Pasternak’s affair written by his great-niece. It did, however, infringe the copyright in a passage from a foreign-language translation which appeared in that account.

The “Selection Claim”

 The Claimant alleged that the Defendant’s novel, The Secrets We Kept, infringed the copyright in the Claimant’s book Lara: The Untold Love Story That Inspired Doctor Zhivago, by copying the selection, structure and arrangement of certain events contained therein.

The judge was required to consider, applying the CJEU approach in Infopaq [1], (1) whether each selection relied upon was an expression of the Claimant’s own intellectual creation so as to be protected by copyright and (2) whether the Defendant had copied each such selection (in whole or in part).

Subsistence

The judge found that, in general, each selection of events relied on by the Claimant did represent the intellectual creation of the Claimant (notwithstanding the fact that the material selected was not original to the Claimant but derived from other sources which both she and the Defendant had used). He distinguished this from the well-known “Da Vinci Code” case [2], in which the “central theme” said to have been infringed was found to have existed at too high a level of abstraction to qualify for copyright protection.

 Infringement

 However, to the extent that each selection of events was present in the Defendant’s novel, the judge found there was no evidence that it had been copied from the Claimant’s work. In particular, the Defendant’s ”use of odd words or phrase[s] or other detail” from the Claimant’s work was not sufficient to support the allegation that she had copied  the Claimant’s selection of events. The Defendant had merely used the Claimant’s work as a secondary source, consistent with the Defendant’s writing method (namely, her review of her sources in advance, the fact that she did not refer to them whilst writing and that she did large amounts of re-writing, re-ordering and other editing of her text).

In reaching his decision, the judge found Laddie J’s “grains of sand” analysis in IPC [3] a useful reminder not to focus solely on similarities and ignore the differences between the relevant works and expressly noted that, in the present case, “the differences between the relevant parts of the two works, in terms of the selection of events, are too great for a finding of selection copying”.

 The “Translation Claim”

 The Claimant further alleged that the Defendant’s novel infringed copyright in an excerpt from an English translation, commissioned by the Claimant, of the French edition of a Russian-language book (written by the daughter of Boris Pasternak’s mistress). The copyright in the translation had been assigned from the author (i.e. the translator) to the Claimant.

 Subsistence

 The judge found that copyright can exist even in “fairly basic” translations, since the translator will nevertheless have exercised their own intellectual creativity in choosing how to express the original subject matter. In the present case, the relevant excerpt (setting out the terms of a prison sentence handed down by a Soviet court) consisted of just 55 words from a translation totalling 23,484 words. However, following Infopaq, the judge held that this did not disqualify the excerpt from copyright protection as a substantial part of the work: the translator’s choices were not so limited as to disqualify the excerpt from being her own intellectual creation (per SAS Institute [4]).

Infringement – quotation, fair dealing and acknowledgment

The Defendant admitted copying the excerpt from the Claimant’s book but asserted that this fell within the quotation defence at s.30(1ZA) of the Copyright, Designs and Patents Act 1988 (“CDPA”). Under the terms of s.30(1ZA), this required her to establish (inter alia) (1) that the use of the quotation had been fair dealing and (2) that the quotation had been accompanied by a sufficient acknowledgement.

Applying the Ashdown [5] guidance, the judge accepted that the Defendant’s use was fair dealing, in that the Defendant had acted in good faith and the excerpt was used solely to set out the prison sentence terms in the novel.

However, he found that there had been no sufficient acknowledgement of the author of the excerpt (i.e. of the translator who had produced the English translation), within the meaning of s.178 CDPA. He further found that the Defendant should have realised the excerpt was the work of a translator and that it had been neither impossible nor impractical for the Defendant to have identified that translator by reasonable inquiry to the Claimant or her publisher. This was the case despite that fact that the Claimant’s book (which itself had been acknowledged in the Defendant’s book) had not identified the translator in its bibliography (but had referred, rather, to the French version of the excerpt).

Nicholas Caddick KC and Jamie Muir Wood, instructed by Briffa Legal Limited, appeared for the Claimant

READ MORE: Pasternak v Prescott [2022] EWHC 2695 (Ch) (bailii.org)

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

[2] Baigent v The Random House Group Ltd [2007] EWCA Civ 247

[3] IPC Media v Highbury [2004] EWHC 2985 (Ch)

[4] SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482

[5] Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142