Is Harry Potter making a Parody of Copyright Law?

Harri Puttar poster, via chakpak website.Disney and the Joyce Estate have competition in the world of ridiculous over-enforcement of copyright. Step forward Harry Potter. There have been many, many legal disputes involving Harry, and his creator, J.K. Rowling. For example, several years ago now, Tim Wu wrote an entertaining piece in Slate called Harry Potter and the International Order of Copyright (with added links):

J.K. Rowling and her publisher [Bloomsbury / Scholastic] have launched an aggressive worldwide legal campaign against the unauthorized Potter takeoffs … [they] can use the courts in [TRIPS]/WTO-compliant countries to club her Potter rivals.

Moreover, Warner Bros (the studio behind the Harry Potter movies) takes stern action against cybersquatters on Potter-like domain names (including an infamous example where they threatened 15-year-old fan, Claire Field, with legal action, though they eventually backed down). More recently, the same plaintiffs have sought to prevent the publication of The Harry Potter Lexicon (see its earlier – and continuing – website incarnation here). While we await judgment, you could do worse than check out Neil Gaiman‘s comments on the case.

Now comes news from Legal Eagle on Skeptic Lawyer that Warners are taking on the might of Bollywood, seeking to restrain the distribution of an Indian movie called Hari Puttar – A Comedy of Terrors. Legal Eagle wonders “if they are going to attempt a breach of trademark claim? Or will it be a passing off claim?” Reflecting this, Skeptic Lawyer assets that it “couldn’t be copyright, as they’d skate by as ‘parody’.” I’m not so sure that the fact that Hari Puttar is a parody means that it is so obviously a get out of jail free card for the movie, at least from the copyright perspective.

Of course, parody would be held not to infringe if the claim were brought in the US (Campbell v Acuff-Rose Music 510 US 569 (1994), acknowledging that parody comes within the “fair use” exception; see generally RA Posner “When is parody fair use?” (1992) 21 JLS 78). So it comes as no surprise to me that the claim is being brought, not in the US, but in India. And the law there may not be to the same effect. I have always thought that this is one of those areas where US law is less protective of copyright and more open to exceptions than other common law countries. Hence, I am not sure as sure as Skeptic Lawyer that a parody exception to copyright (see generally here (doc)) would be true for the UK (Schweppes v Wellingtons [1984] FSR 210; Williamson Music v Pearson Partnership [1987] FSR 97) – or for other common law [and European] countries where superior courts have held, accepted or simply assumed that parodies infringe copyrights (see generally M Spence “Intellectual Property and the Problem of Parody” (1998) 114 LQR 594). Indeed, the Gowers Review of Intellecutal Property (published in December 2006) recommended that the UK introduce an exception to copyright for the purpose of caricature, parody or pastiche by 2008 (see pp 6, 68, 126). That year is come, though not yet gone; we still await legislative moves on foot of Gowers; and transformative works such as parody still remain copyright infringements in the Common Law world outside the US. The big question in the Hari Puttar case, then, is whether Indian law follows the US rule or that which obtains in the rest of the Common Law world. The English cases were decided under the Copyright Act, 1956, upon which (with its 1911 predecessor) India’s much-amended 1957 copyright legislation is based. It is likely therefore that the non-US rule on parody will apply. For a definitive answer, however, we must await the judgment of the Bombay High Court.

Conversely, if parody is a defence in a copyright infringement claim, can that logic be extended to defend other IP claims, such as patent infringement, trade mark infringement or passing off?

As always with Potter, there is more to this than meets the eye, and it will turn out fine in the end. But for whom?

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