Wednesday, June 17, 2009

Harry Potter yet again in court (or trying to get millions magically)

The Australian Daily Telegraph brings the news that the estate of Adrian Jacobs is suing JK Rowling’s publisher, Bloomsbury, for copyright infringement and claiming £500 million. The suit has its origin on the allegation that Harry Potter and the Goblet of Fire contains the same concepts presented in Jacobs’ Willy the Wizard, a 36 page book of which 1,000 copies were made.

According to the newspaper, the claimants argue that

Both Willy and Harry are required to 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, the merpeople in Harry Potter, Mr Markson said in a statement to The Daily Telegraph.

"Many other similarities are described in the Claim filed by the Estate, which include the idea of wizards travelling on trains, famously referred to in Harry Potter as the Hogwarts Express.

"It is alleged that all of these are concepts first created by Adrian Jacobs in Willy the Wizard, some 10 years before JK Rowling first published any of the Harry Potter novels and 13 years before Goblet of Fire was published.

"It is also alleged that, at the time in trying to get his work published, Mr Jacobs sought the services of a literary agent, Christopher Little, who also later became Ms Rowlings literary agent in the Harry Potter series.

Leaving apart the issue that Jacobs’ book was in the hands of whom then became JK Rowlings agent, it seems that the whole lawsuit is based on some ideas being similar and there is where things are difficult to understand. The Copyright, Designs and Patents Act 1988 in its section 16 (3) makes clear that, subject to some exceptions, it is not necessary to copy the whole work, but it has been clarified in Warwick Film Productions Ltd v Eisinger (1969) that a substantial part of it should be reproduced in order to have infringement. Here it is important to remember that substantial refers to the quality more than the quantity of the copy, as explained by Lord Reid in Ladbroke (Football) Ltd v William Hill (Football) Ltd (1964). Furthermore, substantiability refers to being substantial in the copied work and not in the copying one, as decided in Designers Guild Ltd v Russell Williams (Textiles) Ltd (1998) reaffirmed by the House of Lords in 2001(it would not be a defence to say that Willy the Wizard is one tenth of the Goblet of Fire, because the suit does not claim that JK Rowling is not creative, it claims that Jacobs’ work has been copied). So, it first has to be established how much of the Jacobs’ work is constituted by the parts referred to above.

The other issue relevant to copyright infringement is to address whether the protected work has been reproduced or not and to establish that we need to look at how similar both works are and then if the similarity has been brought by the act of copying. The previous discussion makes clear that the infringing work needs not be identical, but it can be argued that courts have made a huge disfavour to the certainty and clarity of this issue by blurring too much the distinction between expression and idea, distinction that is central to the concept of copyright. The case Ludlow Music Inc v Robbie Williams (2001) is a prime example of courts making an appalling mess of the law of copyright by finding infringement due to one song taking its central idea from other (yes, there is not mistake, the court did refer to copying the idea as infringement!). Generally speaking, the infringing work should reproduce the original in some form, although this does not imply exact word-by-word copying. CDPA 1988 s16 (3)(a) makes clear that reproduction does not need to be exact, which has been interpreted as covering the way of arranging ideas too, in Harman Pictures NV v Osborne (1967). Finally, it is the case Ravenscroft v Herbert (1980) the one that may give the claimants some hope of success because it establishes that an author cannot use the language and arrangement of facts of a previous work (artificially protecting ideas without saying so).

Fortunately, the Da Vinci Code case, Baigent v Random House Group Ltd (2007) put some rationality in the common law arena and established that facts, themes and ideas were open to anyone to use (although the claimants got away with using the courts to make their previously unknown book a best-seller).

So, is this a genuine case or a way to try (yet again) to use courts to change the fact that a writer has written a book that few people want to buy and other has written a different book with some similarities that has sold millions of copies around the globe? The situation is not helped by the involvement of a publicist promoting the action and making a point that Mr Jacobs died penniless and JK Rowling is a billionaire. The law of copyright shouldn’t be concerned with the fact that an ignotus author died poor due to losing everything in the stock market (unrelated to the book or the current action) and it shouldn’t be affected by the sympathy that a publicist is trying to attract to his (?) cause (by the way, in a system with no juries, shouldn’t you get a good lawyers instead of a publicist? or the whole lawsuit is just to make money by becoming a “celebrity”?). But there is quite strong argument that courts are to blame for this type of lawsuits.

In England the characteristics of common law give some flexibility to the law but they also mean that many cases are decided based on the personal preferences of the judges (what is always strongly denied by them or common law analysts), who many times use their rulings to relax or restrict principles that are quite well defined in other jurisdictions., like the distinction between expression and idea. And on the policy side, why a court should protect the way that facts, information and ideas are presented by someone, not the way they are expressed, when other person uses the same way but expresses them in a form that is preferred by the public? Even more, courts in this side of the Atlantic seem to be lenient to claimants that use the courts to change their lack of success in the market even when the claim can be understood as frivolous and without merit. Across the pond, however, courts have been less reluctant to deal nicely with this type of lawsuits and in Scholastic, Inc. v. Stouffer 221 F. Supp. 2d 425 (S.D.N.Y. 2002) the judge fined Ms Stouffer U$S50,000 for her “pattern of intentional bad faith conduct” and in Canada a judge ordered Kim Baryluk, the song writer behind the almost unknown The Wyrd Sisters band that sued Waner Bros for CAD40,000 for…no reason, to pay the CAD140,000 legal costs of the defendant.

Isn’t it time that courts make clear in England that if the public does not like your creation courts are not there to give you a hand paying your bills? And also, although it is true that due to the robes and wigs English courts look like Hogwarts, it is also time that people understand that they are not a place where lack of talent can be magically transformed into millions...

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