FIRST YOU READ, THEN YOU WRITE - Mystery Commentary by Mike Nevins.

    An English judge has just dismissed the copyright infringement suit brought against the author and publisher of The Da Vinci Code by two men who claimed that Dan Brown ripped off the speculations in their nonfiction book Holy Blood, Holy Grail about the people and events of early Christianity.  Unless English copyright law is radically different ours, the case should have been thrown out of court years ago.  As chance would have it, most of the American precedents involve aspects of the kind of fiction that presumably interests readers of this column. 

    The plaintiff in Musto v. Meyer (1977) was a Baker Street Irregular who claimed that the book and movie The Seven per Cent Solution stole key elements from his article arguing that Sherlock Holmes got over his early cocaine addiction by going to Vienna and being cured by the young Sigmund Freud.

    In Hoehling v. Universal City Studios (1980) the author of the nonfiction book Who Destroyed the Hindenburg? claimed that the George C. Scott action thriller THE HINDENBURG stole the book’s premise that the dirigible was sabotaged by anti-Nazis out to embarrass Hitler. 

    The claim in Miller v. Universal City Studios (1981) was that a TV movie about a psycho who buried a girl alive with a limited air supply stole from the plaintiff’s true-crime book dealing with the same case.  Nash v. CBS (1990) was about a claim that the premise of one episode of a TV cop show – that it wasn’t John Dillinger but a look-alike who was shot down by the FBI back in 1934, and that Dillinger himself lived to a ripe old age in anonymity – was stolen from the plaintiff’s book about American criminals. 

    Every single one of these plaintiffs lost – and rightly so.  The factual discoveries that I make, the speculations or theories I set forth about historical events or personalities or fictional creations like Holmes, are not among the aspects of a work that copyright protects.  Kudos to that English judge!


    I haven’t read The Da Vinci Code but from those who have I gather that it’s a Ludlumesque page-turner of an international thriller – and that it has more factual mistakes than a toad has warts.  At least three books and several websites are devoted to pointing out these mistakes, some of them crucial to the plot.  But anyone widely read in mystery fiction knows that The Da Vinci Code is hardly unique in that respect.  For obvious reasons most of the howlers I catch in the novels and stories I read and the movies I see have to do with law.  Remember the scene in Martin Scorsese’s version of CAPE FEAR where Gregory Peck threatens to have the ABA disbar Nick Nolte?  As if the American Bar Association had the power to disbar anybody anywhere! 

    There’s a mercifully never collected pulp story by Cornell Woolrich in which a shyster lawyer devises a wild and crazy scheme for his racketeer client to kill a rival.  He is to take the guy prisoner, frame himself for the man’s murder before the deed is done and get himself acquitted.  Then, he explains, even if his client should murder his rival in front of a thousand people he could never be prosecuted for it. 

    This gimmick has an ancient lineage in crime fiction and movies and even pops up in the Gene Autry shoot-em-up GOLDTOWN GHOST RIDERS (1952), but it’s best known to today’s audiences from DOUBLE JEOPARDY (1999), starring Ashley Judd.  Need I add that as a matter of law it’s dead wrong?  Woolrich goes on to compound the blunder when, asked for the name of this marvelous rule of law, the shyster replies: The Statute of Limitations!  John D. MacDonald, Ellery Queen, Rex Stout, the list of crime novelists who have screwed up legal or other matters goes on and on.  Dan Brown is in excellent company.

    Before TV became our medium of mass entertainment, hundreds of weekly and monthly magazines could be found on America’s newsstands and dozens of professional authors wrote nothing but short fiction in various genres.  One of these was William Fay, who mainly wrote sports shorts but also, between the late Forties and the early Sixties, turned out lots of non-series tales about various big-city cops, mainly for the Elks Magazine and the Saturday Evening Post.  Fay never wrote an original story for Ellery Queen’s Mystery Magazine – no doubt because the Post paid several times the going rate at EQMM – but over the years Fred Dannay reprinted ten of his cop tales. 

    Fred had a compulsion to change the titles of just about every story he bought, and of the ten by Fay that he reprinted, he retitled eight.  As longtime EQMM readers may remember, the copyright notice in small print at the bottom of the first page of each reprinted story would usually indicate the original title and place of publication.  But as I serendipitously discovered a few nights ago, there was a slip-up with Fay’s first appearance in the magazine.  Reading the fine print at the foot of the first page of “Ambitious Cop” in the March 1955 issue, we learn that the story first appeared in Elks Magazine back in 1949 but nothing is said about a title change. 

    In fact it was originally published as “A Nice, Clean Job,” and under that title it was included in David C. Cooke’s Best Detective Stories of the Year anthology published in 1950.  (According to Cooke’s introduction, Fay wrote the story in a single day.)  But it was Fred’s title in the credits when, a few months after its EQMM appearance, a 30-minute TV film version of the story was aired on the CBS Schlitz Playhouse of Stars series.  The cop was played by Gene Evans, best known from his appearances as various sergeants in the war films directed by Samuel Fuller.


    “Bad blood is for lawyers what a bad tooth is for a dentist.”  Nero Wolfe said it, in The Red Box (1937), which is a treasure trove of Neronic one-liners.  “Nothing is more admirable than the fortitude with which millionaires tolerate the disadvantages of their wealth.”  “That’s what a fortune is for, to support the lawyers who defend it for you against depredation.”  Small wonder that, more than 70 years after Rex Stout created that obese genius, we still read him.  Legal blunders and all!

      Other installments of this column can be found by going here.  


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