Commercial associate Andrew Wilson-Bushell examines the High Court’s recent decision in Pasternak v Prescott, which relates to a copyright claim concerning similarities between fictional and non-fictional accounts of Boris Pasternak’s (the author of Doctor Zhivago) life and associated events in Russia during the Cold War.
The High Court has ruled, for the most part, against a relative of Doctor Zhivago author Boris Pasternak, finding that her biography of his lover (the inspiration for leading character Lara) was not infringed by Lara Prescott, who wrote a novel about the dissemination of his epic in Cold-War Russia. The case illustrates the difficulty in proving copyright infringement in a selection based on historic events. It also informs best practice for providing sufficient acknowledgment under the quotation exception when using extracts from other works.
Doctor Zhivago is a 1957 novel by the author Boris Pasternak. After publication was denied in the USSR, the book was published in Italy, and it went on to win the Nobel Prize for Literature in 1958. Boris Pasternak himself enjoyed a high level of fame in Russia from the 1920s onwards as an author and a poet, and he was a dissident in the Soviet Union until his death in 1960.
The claimant, Boris Pasternak’s great-niece Anna Pasternak, wrote Lara: The Untold Love Story That Inspired Doctor Zhivago, a non-fictional historic work telling the story of Boris Pasternak and the woman variously described as his lover, mistress and muse, Olga Ivinskaya. It was published in 2016.
The claimant also owned (by assignment) the rights in an English translation of a separate work, known in its French version (the version that was translated) as Légendes de la rue Potapov, written by the daughter of Olga Ivinskaya, which had not been published in English. The translation had been commissioned by the claimant and used for her research when writing Lara, and it was quoted in Lara.
The defendant, Lara Prescott – confusingly named after Lara Antipova, one of the two central characters of Doctor Zhivago – is the author of The Secrets We Kept, which was published by Penguin Random House in 2019. A work of historical fiction (based on true events), Secrets fictionalised the account 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. Certain chapters of the book are told from the perspective of Olga Ivinskaya, and in one instance the book used an extract from the translation.
The claimant argued that:
(a) when writing Secrets, the defendant copied “a substantial part of the selection, structure and arrangement of facts and incidents” from the relevant chapters in Lara; and
(b) the use of the extract from the translation infringed the claimant’s ownership of the rights in the translation.
The defendant counterclaimed for a declaration of non-infringement, and for an order for dissemination and publication of the judgment.
The defendant presented a list of events that had been included in various chapters of Lara. Infringement in those events was not claimed on an event-by-event basis. Instead, the claimant alleged that the defendant had, in a series of chapters, infringed the claimant’s copyright in the “selection” (referring to the selection, structure and arrangement of the relevant events).
Giving judgment, Mr Justice Edwin Johnson condensed the various arguments of the parties into three core questions, two of which he analysed in detail:
(a) whether each selection of events was the expression of the claimant's own intellectual creation, so as to have the benefit of copyright protection; and
(b) whether the defendant copied the selection of events (in whole or in part) set out in all or any of the sections of the claimant’s evidence.
In answering those subsistence and infringement questions, the judge went to great efforts to analyse each chapter of Lara and the corresponding sections of Secrets forensically.
The judge found that the selection of events constituted a “substantial part” of Lara and was protectible, even though the claimant had at times copied her source material verbatim when writing Lara. The judge used an analogy of an anthology of poetry, where the selection of poems would constitute the creator’s own original skill and labour in its own regard. The judge made it clear that copyright in the selection was a sliding scale, and at a certain level of individual detail “there comes a point where one is no longer considering matters which are protected by the copyright in selection”.
The defendant sought to rely on Baigent, arguing that the selection of events was a central theme, of “too general a character and to exist at too high a level of abstraction to qualify for copyright protection”. The judge disagreed, even though the selection of events for which copyright was claimed was “a long way from anything resembling the complete set of events” in the relevant chapter of Lara. In his view, the claimant was entitled to identify a particular selection of events which she alleged had been copied, “without being required to make that selection an exhaustive statement” of the work. Yet that would then be relevant to the question of whether copying had actually taken place.
Acknowledging that copyright did subsist in the selection of events, the judge also concluded that infringement could occur if there had been copying of only a part of the selection .
The judge then went to great lengths to dissect the defendant’s creative process and the similarities of Secrets and Lara on a chapter-by-chapter basis, eventually concluding that it was clear that the defendant did not copy from Lara the selection of events in the relevant chapters of Secrets (or any part of that selection).
Both authors drew from a similar selection of sources when preparing their works, including published accounts from various people involved in the lives of Boris and Olga and the CIA’s operation. The defendant admitted that she had read Lara and had used it as a secondary source for her work, although she remarked that she found it a disappointment, as she did not consider Lara to contain anything new.
As such, any similarities between the works were concluded to be due to common sources and due to the chronology of the real historical events – the judge noting that “there can be no copyright in the chronological order itself” – rather than as a product of copying by the defendant. This was supported by the fact that, while events did overlap, the claimant’s selection of events that she alleged had been copied were limited, in comparison to the whole text of Lara.
The judge concluded that the books were “fundamentally different works”, given that Lara is a non-fictional historical work describing actual events, whereas Secrets is a work of historical fiction, based on real events, which have been woven into the story devised by the defendant, and have themselves been adapted to suit the story.
Accordingly, the selection claim failed.
The judge considered this to be “a minor part of this action”. The subsistence of copyright in the translation and the valid assignment of that copyright to the claimant was not in dispute. Yet the judge noted that the translation would have satisfied the barrier for intellectual creation of the author, applying Martin v Kogan. The defendant had also already admitted that she had copied the text from Lara (and so had indirectly copied the translation in that regard).
The defendant sought to argue that the copying of the few relevant lines (out of the 50-page translation) was not a substantial part and had been modified by the defendant (in this instance, by making minor editorial changes).
Additionally, the defendant maintained that she had, when copying the text, believed it to be “an actual quotation from history, as someone would quote George Washington or Thomas Jefferson or any speech” (i.e. an actual quotation of the Soviet court, although failing to take into account that it would need to have been translated), and that she could rely on the exception for fair dealing for the purposes of quotation under section 30(1ZA) of the Copyright, Designs and Patents Act 1988 (CDPA).
The four statutory tests that the defendant would need to satisfy to rely on the quotation exception are: (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). In this case only elements (b) and (d) were at issue.
Applying Infopaq, the judge found that there had been an infringement via the copying of a substantial part of the translation, and the defendant’s other arguments were not relevant in the context of copyright infringement. The judge noted that an exception under section 30(1ZA) of the CDPA might have been available: the use was fair dealing of a work (in that the use was in good faith and did not commercially compete with the translation, applying Ashdown ). Yet the exception did not apply as the defendant had not provided the “sufficient acknowledgement” required by limb (d) and had failed to make a “reasonable inquiry” as to authorship of the unpublished translation in order to show that it was “impossible for reasons of practicality or otherwise” to provide the acknowledgement.
Interestingly, the judge considered that it would have been necessary as part of a “reasonable inquiry” for the defendant to contact the claimant or the claimant’s publisher. Context (as well as the acknowledgments contained in Lara) should have put the defendant on notice that the extract was an unattributed English translation with its own copyright – regardless of the fact that Lara did not fully attribute the translation to its original author, from whom the claimant had commissioned the translation before using it in Lara.
So the translation claim succeeded.
The quantum of damages in the translation claim, along with a decision on any other relief in the selection claim, has yet to be determined.
Penguin Random House UK is reported as saying: “This ruling is a timely reminder that copyright law exists to protect authors’ rights and creative expression at the same time as enabling writers to draw from the historical record. It does not permit anyone to monopolise historical facts or sources.”
In the words of the judge, this is “an apt warning, in a case where authors are using common sources and making reference to actual historical events, against assuming copying simply because of a similarity or apparent similarity of events and their selection”.
In this instance, the claimant’s motives for bringing her claim seemed to align closer with protecting her family’s legacy than her copyright. She said that she had only read 10% of Secrets, declaring it “to be a trashy book that Boris and Olga would have hated”. The judge took a dim view of this: “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” .
So the case serves as an instructive reminder that, while copyright can protect a series of events as a sequence, it will normally be hard to prove infringing reproduction of a sequence of historical events, which will be a question of fact in each case. And if someone is considering bringing a claim for copyright infringement, they should clearly read all of the allegedly infringing work first.
The case also provides helpful guidance on the extent of “reasonable inquiries” necessary to show that it would be impossible to provide a “sufficient acknowledgement” for the purpose of relying on the quotation exception. The judge’s reasoning implies that an acknowledgement simply of Lara would not have been sufficient, as the defendant should have realised from the context that a separate copyright work existed in the English translation of the extract. That probably goes further than might be expected by most authors, editors and publishers, who will need to pay careful attention when reviewing drafts.