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Forget Voldemort — Harry Potter has a new nemesis to contend with. Unfortunately for Harry, neither magic nor help from Hermione Granger will help him win this legal fight. As a sequel to the pending suits against the British publisher of J.K. Rowling’s Harry Potter series, the Estate of Adrian Jacobs recently filed suit against Scholastic, Inc., the U.S. publisher of the Harry Potter books. Jacobs’ Estate alleges that the fourth book, Harry Potter and the Goblet of Fire, infringes on the copyright of Jacobs’ 1987 book, The Adventures of Willy the Wizard, in violation of the Copyright Act.
In order to establish a claim of copyright infringement under the Copyright Act, the Supreme Court in Feist Publications v. Rural Telephone Service Co. held that the plaintiff must show: (1) that he is the owner of a copyrighted work; and (2) that the defendant misappropriated protected elements of that work. As the first prong of this test is easily demonstrated, the second prong serves as the source of most copyright litigation. The courts have held that a plaintiff can show that the defendant copied original elements of the copyrighted work by providing direct evidence of such plagiarism, or by demonstrating that the defendant had access to the plaintiff’s copyrighted work and produced material that was “substantially similar” to it. In determining whether the defendant’s work is “substantially similar” to the plaintiff’s copyrighted material, the courts ask whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Even if this test is met, the plaintiff will fail to state a claim for copyright infringement if the appropriation is de minimis.
To support its argument that J.K. Rowling had access to Willy the Wizard while writing and publishing Harry Potter and the Goblet of Fire, and that the works are “substantially similar,” the complaint outlines a list of suspicious circumstances and parallels in “theme, plot, characters, setting, and total concept and feel.” The complaint first sets out its “access” claim by noting that in 1987 and 1994 respectively, Jacobs and Rowling employed literary agent Christopher Little to promote and secure a publisher for their books. Although Harry Potter and the Goblet of Fire was not written until 2000, three years after the death of Jacobs, the plaintiff asserts that because Little had been given copies of Willy the Wizard in 1987, and remained Rowling’s agent in 2000, it was highly likely that Rowling had access to the story while writing the fourth installment in her series.
In order to illustrate the “substantial similarities” between the stories, the complaint points out that each book tells the story of a year-long wizard competition in which both protagonists solve clues and “rescue hostages imprisoned by a community of half-human, half-animal creatures” to become the victor. Among the numerous similarities listed in the complaint is the fact that in Willy the Wizard, Willy rescues the hostages from creatures with “torsos like humans and legs like kangaroos,” while in Goblet of Fire, Harry rescues his friends from creatures with “torsos like humans and are otherwise like fish.” In both books, Willy and Harry “rely on elves and others who obtain key pieces of information by eavesdropping,” and discover vital information on how to complete this task “us[ing] a tool available in a special bathroom.”
The suit is seeking an injunction against Scholastic to stop the publishing house from selling any more copies of Goblet of Fire. Additionally, the suit is asking the court to compel Scholastic to destroy all remaining copies of Goblet of Fire that it has in its possession, as well as pay the plaintiff all profits derived from the sale of the book. While Rowling has stated that she has never read Willy the Wizard, the New York district court will nonetheless have to determine whether Rowling did indeed have access to the book while writing Goblet of Fire, and whether the plot parallels rise to the level of being “substantial” enough to warrant a victory for the plaintiff.
– Casey McLaughlin
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