Posted: 07/04/2023
In an important case linked to the epic tale of Doctor Zhivago by Boris Pasternak, the High Court considered whether a claim of copyright infringement can succeed on the basis of a particular selection of events and facts, and examined defences in relation to the use of translations.
Rejected by Soviet publishers in 1955 and yet ultimately considered by many to be the greatest love story of the twentieth century, Doctor Zhivago became the focus of a CIA operation to embarrass the Soviet government. Nearly seventy years later, the author’s great niece Anna Pasternak issued a claim for copyright infringement of her novel Lara: The Untold Love Story That Inspired Doctor Zhivago, a non-fiction historical work detailing the love affair of Boris Pasternak and his mistress, Olga Ivinskaya. The defendant was the author of the novel The Secrets We Kept, an historical fiction book concerning the CIA operation which employed the perspective of Olga Ivinskaya in several chapters.
Anna’s principal allegation was that certain chapters of the defendant’s work infringed the copyright subsisting in chapters of her novel (the selection claim). She alleged that the defendant had copied a substantial part of the selection structure, and arrangement of the facts and incidents which she created when she wrote Lara. She also made an additional claim that the defendant had infringed the copyright in an extract taken from memoirs which Anna had translated from French into English, by directly copying the extract in The Secrets We Kept (the translation claim).
The selection claim relied on various events which the claimant, Anna, maintained the defendant had copied in chapters of her novel. Despite the bulk of the events being derived from existing source material, the claimant’s selection of them constituted the expression of her intellectual creation in writing Lara. While the events specified in the selection claim were part only of the events in the chapters, this did not disqualify them from constituting a selection of events that were part of the claimant’s creation. The claimant was entitled to identify a particular selection of events without being required to make the selection an exhaustive statement of the events.
The way in which the selection claim was set out – namely, the claimant’s submission that specific chapters of Lara were copied in specific paragraphs in The Secrets We Kept – impacted the method in which the evidence was assessed. The judge was obliged to compare the relevant paragraphs from Lara with the relevant chapters in The Secrets We Kept. The judge found the omission of several events from Lara in The Secrets We Kept, concluding that if the defendant had copied the selection of events specified by the claimant, she might have been expected to include more of them. The events that did appear in the defendant’s novel were differently expressed, ordered and contextualised than in Lara. It was concluded that the defendant had not copied the relevant selections of the events in the specified chapters of Lara or any parts of the selections.
The court held that copyright subsisted in the translation because of the creative skill employed by the translator in choosing how to convey into English the relevant parts in French of the original text. The court found that the defendant had in fact copied the translation into The Secrets We Kept. Also, it was found that the defendant had included the translated text without providing any attribution to the copyright owner.
The defendant sought to rely on the quotation defence to this claim for infringement. However, when seeking to rely on a quotation defence, there must be sufficient acknowledgement of the author of the copyright work. Whilst the obligation is not absolute, a defendant must have made reasonable enquiries to ascertain the author before publishing a work without making reference to its source. It was decided that in this case the author of The Secrets We Kept did not make enough enquiries, and so the defence was unsuccessful. The translation claim therefore succeeded.
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