[FILM CLIP] IAN MCKELLAN: You and I, Robert, we have observed history. IAN MCKELLAN: We are in history now. [END FILM CLIP] BROOKE GLADSTONE: That's a clip from the upcoming film The Da Vinci Code, based on the bestselling novel. This week the novelist, Dan Brown, and his publisher Random House, were in a London courtroom defending themselves against charges of copyright infringement. Authors Michael Baigent and Richard Leigh say that The Da Vinci Code borrowed a little too much from their work of speculative non-fiction, The Holy Blood and the Holy Grail. Katherine Rushton reports for the Bookseller, and she was in the courtroom this week. Katherine, could you set the scene? KATHERINE RUSHTON: Well, it's been an interesting week, although I would say a difficult one for the claimants. Michael Baigent has been in the witness box for most of the week, and actually he's had to retract a lot of the points in his witness statement on the cross-examination and been forced to admit that a lot of the material he has claimed copyright for actually appeared in other sources that Dan Brown could have got it from. BROOKE GLADSTONE: And tell me what's at stake in this case. KATHERINE RUSHTON: Well, I suppose, for Dan Brown, not only is a lot of money at stake in the film of his book but also his credibility, whereas for Leigh and Baigent, they stand to gain a lot of money and a lot of credibility, if they win this case. BROOKE GLADSTONE: This case, obviously, is happening in Britain, but are there ramifications for authors here in the United States? KATHERINE RUSHTON: I imagine so. I think it's been taken in Britain because our copyright law is slightly different and they think it would be easier to pursue here. But if they do establish that Dan Brown infringed their copyright, presumably they would then follow that up in the U.S. and try and achieve the same ruling, in which case it would become difficult for fiction authors to use historical works. BROOKE GLADSTONE: Are they going to win this case? KATHERINE RUSHTON: Without a doubt, no. BROOKE GLADSTONE: [LAUGHS] Katherine, thank you very much. KATHERINE RUSHTON: You're welcome. BROOKE GLADSTONE: Katherine Rushton reports for the Bookseller. Writers of historical fiction are watching this case with great interest. Among them is Sarah Dunant, a former journalist. Her most recent novel, set in Renaissance Italy, is In the Company of the Courtesan, also a Random House title. She's on the phone from London. Sarah, welcome to OTM. SARAH DUNANT: Thank you, Brooke. Pleased to be with you. BROOKE GLADSTONE: Now, one question we had is what exactly is historical fiction? Is it a fictionalizing of a historical event or is it simply fiction that takes place in some historical epoch? SARAH DUNANT: Well, the answer is it can be either or both, although I suspect it can't be neither [LAUGHS] of the two. BROOKE GLADSTONE: [LAUGHS] SARAH DUNANT: I think probably by definition, historical fiction is always a mixture of fiction and fact. BROOKE GLADSTONE: In the back of your most recent book, In the Company of the Courtesan, you actually have a bibliography. What sort of sources did you consult? SARAH DUNANT: Well, I spent probably about a year researching In the Company of the Courtesan. You know, the fact is, Brooke, if I were to try and write from scratch a novel set in 16th century Florence without using other people's work for some of my facts, it would take me 250 lifetimes [LAUGHS] to do. So, of course, I need scholars who have done the work. BROOKE GLADSTONE: Okay. But that established, what about the scenarios that they may speculate on? In the Dan Brown case, they're talking about a speculation that Christ might have survived and gone onto father a child. Obviously, this isn't about fact gathering; this is about borrowing, perhaps borrowing a scenario. SARAH DUNANT: I think the problem about religion is it is based somewhere on a series of facts that nobody quite knows. The notion that Christ may have been married, the notion that Mary Magdalene may have been more than just a poor supplicant are notions that have been around for a very long time. And if a writer, particularly a thriller writer, a writer where plot is really important, where the uncovering of secrets is really important – you know, I began life as a thriller writer, and I try and weave in thriller plots to history because the better the book, the more you're drawing on stuff that is actually fact. Thriller writers do lots of research. The big question here is whether or not an idea, a bigger idea as opposed to a series of facts and opinions, can be copyrighted. And that is a huge question, which I think, even when they have ordered one way or the other in the Dan Brown case, in a sense, we'll still be asking. BROOKE GLADSTONE: So far in The Da Vinci Code case, it isn't going very well for the plaintiffs, who seem to have exaggerated the amount of borrowing that was done in the case of The Da Vinci Code. Also, Dan Brown evidently conceded right from the start that he'd consulted their work, among others. And one of the plaintiffs said, quote, "The Da Vinci Code uses the tips of the icebergs that were produced by the research that we did." It seems that the tips of the icebergs ought to be accessible to everybody, right? SARAH DUNANT: Oh, and you put your finger on something so interesting about this present moment in writing stuff about history too. For a very long time, any kind of novel about history, particularly deliberately historical novels, were more often about kind of kings and queens and big battles and the big accepted history. But the kind of history that is being done by all manner of scholars over the last 40 or 50 years, from women's research people to people who are interested in gay culture to people who are interested in the hidden bits of the sort of Christian mythology, their job has been to get under the surface, to get to those other nine-tenths of the iceberg. It's all, in a sense, new and slightly hidden history. So the historical novelist, particularly if you want to write a good thrilling historical novel, which I certainly set out to do, has to use all kinds of sources which, in a sense, are just the tip of the iceberg. Now, all I can say is that as a historical novelist writing about Venice in this period, every time I used a book which had either a series of facts I didn't know which had come from a PhD or a master's thesis to a kind of recipe for how women lightened their skin, I put down the name of the book and I put it in the bibliography. And that, in a sense, is to guard myself against the feeling that I have ripped off or stolen something. Now, it may be that part of the process of writing this is you just do absorb huge amounts of information which is factual, and then it goes through the alchemy of fiction and the imagination and comes out with some similarities and some differences. But now you're talking about a process so subtle, which is a process of the imagination, and I just don't know how you can legislate for it – BROOKE GLADSTONE: [LAUGHS] SARAH DUNANT: - in a way that stands up in a court of law. BROOKE GLADSTONE: Sarah, thank you very much. SARAH DUNANT: Thank you, Brooke. Take care. Bye-bye. BROOKE GLADSTONE: Sarah Dunant's most recent book is In the Company of the Courtesan, set in Renaissance Italy. [MUSIC UP AND UNDER]