High Court delivers Zhivago copyright case ruling
Historical facts and sources not protected by copyright | Dispute centred on fictionalised account of the use of the novel “Dr Zhivago” as propaganda.
US author Lara Prescott has won a copyright case brought against her by Anna Pasternak, the great niece of “Dr Zhivago” author Boris Pasternak.
Yesterday, the High Court of England and Wales concluded that Prescott’s novel,“The Secrets We Kept” (TSWK), did not copy elements from Pasternak’s own book, “Lara: The Untold Love Story That Inspired Doctor Zhivago”.
Prescott’s book is a fictionalised account of a CIA operation in the late 1950s to infiltrate copies of Doctor Zhivago into the Soviet Union as a propaganda weapon.
According to Pasternak, seven chapters of “TSWK” infringed her copyright by copying a “substantial part of the selection, structure and arrangement of facts and incidents” created when she wrote her own book.
Non-fictional “Lara” sets out the love affair of Boris Pasternak and the woman “variously described as his lover, mistress and muse”, Olga Ivinskaya. Part of Prescott’s story is told by and from the perspective of Olga Ivinskaya.
Fundamentally different works
Justice Edwin Johnson said: “It is clear that the defendant did not copy from ‘Lara' the selection of events in the relevant chapters of ‘TSWK' or any part of that selection.
"The essential reason for this is that ‘Lara’ and ‘TSWK’ are fundamentally different works.”
Johnson added that the relevant chapters of each of the books are concerned with the same historical events in the lives of Boris Pasternak and Olga Ivinskaya and, as they were using the same primary source materials, it was unsurprising that the books share a basic chronology.
“Equally, it is not surprising that one finds some of the same details in each work. None of these areas of similarity or overlap seem to me to come anywhere near establishing that the Defendant copied the selection of events in the relevant chapters of Lara, or any part of that selection,” said the judge.
He added that Prescott took “no more from Lara than odd details which, quite correctly, are not said to have been protected by copyright”.
However, Pasternak did succeed on one count—the court ruled that Prescott had infringed the copyright in the English translation of “Légendes de la rue Potapov”, a French translation of a book written in Russian by the daughter of Olga Ivinskaya.
Pasternak had commissioned a translation from French to English of the parts of the book and quoted it in “Lara”.
Indirect copying
The court found that Prescott had indirectly copied an extract of this in her own book. While Johnson concluded that the copying was fair dealing, he found that Prescott had not made inquiries to ascertain the identity of the translator or provided sufficient acknowledgment of the translator.
The court will now hear the parties on the question of what relief should be granted in respect of the translation claim. Prescott’s PR team said that the acknowledgments at the back of her book will be amended accordingly.
Prescott said: Throughout its judgment, which spans almost 150 pages, the court forensically dissected and then dismantled Pasternak’s claims that ‘TSWK’ infringed the structure, selection and arrangement of her book, finding each and every time that no such infringement occurred.
"Pasternak might have been able to come to the same conclusions herself had she ever read my book. But as she admitted in court, she’s never even read ‘TSWK’—not before first threatening to sue me, not before pitching her claims to the media, not before filing her lawsuit, and not even before going to trial.”
Prescott’s publisher Penguin Random House added: “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.”
Commenting on the judgment, Pasternak released the following statement:
"This was an action that I felt compelled to bring, both in defence of my family’s literary heritage and to give non-fiction writers adequate protection from the increasingly popular genre of historical fiction. The judge understood that I had brought this claim to question the extent to which writers of historical fiction should be able, without proper attribution, to make use of the work of historians.
"I did not want to take on Penguin Random House in a David and Goliath action, pitching me against a global publishing giant with its massive financial and legal resources. However, one major part of the defence raised against me was the assertion that my book, 'Lara' had no originality and, hence, no copyright infringement could have occurred.
"I am proud and delighted that this judgment rejects that assertion and recognises that my book, 'Lara' as historical non-fiction relying on my own unique research, is an original work. The text I relied on contains my own author’s original intellectual content in which copyright exists. (see para 142 of Judgment.)
"Although this legal action has not resulted in the total victory that I would have liked, I believe that the judgment is significant and far-reaching. It becomes part of established case law and I hope that it will be a catalyst for change."
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