Harry Potter and the Royal Courts of Justice

JK Rowling, author of the phenomenally successful Harry Potter series of novels, has confirmed that she plans to aggressively defend a claim of copyright infringement issued in the High Court which accuses her of plagiarising ideas and concepts from Adrian Jacobs’ 1987 book “Willy The Wizard – No.1 Livid Land” in “Harry Potter And The Goblet Of Fire”, published in 2000. The claim has been issued against both Rowling and her publishers Bloomsbury PLC, and was originally filed in June 2009.

The Harry Potter Franchise is a huge moneymaker for JK Rowling, her publishers Bloomsbury PLC and Warner Brothers, who make and distribute the film adaptations of the original series and as such it’s not hard to understand why the number of legal cases which have involved the character could now almost fill out the pages of a legal textbook in their own right.

In 2007, JK Rowling and Warner Bros. sued the publishers of “The Harry Potter Lexicon” in New York after a fan-made encyclopaedia on the series made its way into print after starting out as an unofficial online resource. This saw the Court rule in Rowling’s favour amid claims that the author intended to compile her own encyclopaedia and give the proceeds to charity on the basis that the book would go beyond what the US courts refer to as “fair use.”

2003 saw the character involved in setting a ground-breaking legal precedent when Rowling and Bloomsbury obtained an injunction against “the person or persons who has or have physical possession of a copy of the said book or any part thereof without the consent of the Claimant” to maintain secrecy on plot details in the run-up to the release of “Harry Potter and the Order Of The Phoenix”. Effectively, the injunction was made against “persons unknown”, which was previously unheard of in the UK.

What Rowling and Bloomsbury are being accused of is copyright infringement by way of “stealing ideas” from Jacobs’ book by, amongst other things, having the title characters “work out the exact nature of the main task of the contest which they both achieve in a bathroom assisted by clues from helpers, in order to discover how to rescue human hostages imprisoned by a community of half-human, half-animal fantasy creatures”. According to Jacobs, this amounts to the copying of “substantial parts” of the much shorter predecessor.

Ironically enough, this case could well turn on the facts of a case involving another modern literary phenomenon – the Da Vinci Code.

Copyright Infringement takes place when, as Jacobs claims, a “substantial part” of a previous copyright work is reproduced. What amounts to a substantial part is a matter of fact in each case and is a qualitative rather than quantative test, meaning that copyright can be infringed even if a new novel or play does not reproduce a single sentence from the original – the use of enough original elements of a story, if copied, can be an infringement.

In the Da Vinci Code case, author Dan Brown was accused (although not as a Defendant to the Claim) of “appropriating the architecture” of the Da Vinci Code from Michael Baigent and Richard Leigh’s 1982 book “The Holy Blood And The Holy Grail” – ironically both published by the same company. Brown had admitted that the earlier book had inspired him whilst researching and writing his novel, even going so far as to name one of the key characters after Leigh and Baigent, but had always denied copying the “central theme” of their work.

The Court (and subsequently the Court of Appeal) agreed with him, finding that whilst Brown did copy some material from “Holy Blood and Holy Grail”, he did not copy a sufficient amount of the actual text to have used a “substantial part” and had mainly used ideas and “generalised propositions” present in the first book (which did not constitute a substantial part of Brown’s story) rather than entire passages to write his own.

Assuming that Rowling hasn’t copied whole sections of the book in question, then this claim will probably fail. Copyright protects the expression of ideas rather than the ideas themselves – plotlines are rarely protected until they are expressed in writing. However, this case is slightly more risky to fight than Da Vinci Code as the “Willy The Wizard” book is much shorter; if parts of the text have been copied, then they are much more likely to form a substantial part of the story than a longer work.

That said, the claim is, in the words of the Claimant, based upon the alleged misuse of “ideas” rather than actual parts of the manuscript and Rowling’s statements notes very carefully that she had never heard of or had access to Jacobs’ book whilst writing “Goblet Of Fire” – this is a key consideration in cases of this nature and comes straight out of the “Da Vinci Code” judgment.

It’s hard to see how this claim could be successful. If the plot points and ideas raised by Jacobs were repeated very closely and the rest of the books had no other major plot twists, then the case may be decided differently. As it stands, however, it may well be that the Da Vinci Code judgment will in fact provide enough ammunition for an application to dismiss the claim immediately on the basis that it is “without merit”.

Even if the case did make it past this hurdle, it’s doubtful that the claim would be anything like the “billion-dollar” victory that the Jacobs family’s PR team expects it to be. It’s worth noting that Lawyers acting for Jacobs only added Rowling as a Defendant to the claim when they learned that they were not prevented from doing so by limitation (i.e. after the time limit for bringing a case has expired) – the recent “Whiter Shade Of Pale” case allowed a copyright claim to go ahead over 40 years after the release of the original song.

The more cynical amongst us may think that this a publicity stunt designed to focus attention on a case which seems to be less than a sure thing. Whilst JK Rowling has not been shy about entering into litigation to protect her own copyright, she has normally kept away from the media spotlight and was sued in 1999 by American author Nancy Stouffer for copyright infringement of her books “The Legend Of Rah And The Muggles” and “Larry Potter And His Best Friend Lilly”. That case was thrown out for different reasons (after allegations involving the fabrication of evidence) although it’s hard to see how this case will get past chapter 1.

The twist ending here may well be that, if this case were to go much further, it could end up costing Jacobs’ family far more than it’s worth.”

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