the Irish for rights

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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12 Responses to “Is Harry Potter making a Parody of Copyright Law?”

  1. Legal Eagle says:

    Yes, I wasn’t so sure about the parody angle either, given that there’s no exception in Australia; I’m presuming India is similar (being another ex-British colony). Common sense seems to dictate that parodies should escape copyright infringement in the vast majority of cases, but I don’t think the Anglo-originated copyright law reflects that.

    I guess Warners will try every angle possible: TM, copyright and passing off. The success of the copyright claim depends, I suppose, on how much the story mirrors the original Potter books. Although if it’s a film about an Indian boy’s experience in an English boarding school, one could equally say that Enid Blyton was the source…

  2. Eoin says:

    Yes, but the name of the title character is the giveway. If the name had been modelled on Mallory Towers, then perhaps the Enid Blyton claim would have more substance.

    Bonus news Enid Blyton has recently, and controversially, been voted Britain’s best-loved writer in a survey for the Costa Book Awards. How long will be it before Rowling (who was third, behind Roald Dahl and Blyton) displaces Blyton on this kind of list, I wonder?

  3. […] little while ago on this blog, I asked Is Harry Potter making a Parody of Copyright Law? One of the points I made was that J.K. Rowling and her publishers had sought to prevent the […]

  4. […] way of updating my earlier post Is Harry Potter making a Parody of Copyright Law? the BBC has the following report: Warner Bros lose Hari Puttar […]

  5. Warner Bros are complete Nazis when it comes to Harry Potter. Look at what they did to the sixth movie just to make a couple extra million. I cannot stand them. They want to soak every penny from this franchise

  6. […] law in the same way as close cousins are similar: there is a strong family resemblance, but there are very important differences. The similarities are enough that I can reasonably use the US text, and […]

  7. pandora says:

    Hogwarts: C’mon. What company doesn’t? Have a look at the new PG rated Terminator flick e.g. Hollywood is dead.

  8. pandora says:

    Now even New Line jumps on the bandwagon, jeeez!

  9. Imfashion says:

    sometims just have a attitude for fun, enjoy the life:)

  10. lasik says:

    Lol “Harry Puttar” who didnt see this coming?

  11. […] have an interest in the copyright travails of Harry Potter, about which I have blogged previously (1 | 2 | 3), Jeremy Phillips has an interesting blogpost on The 1709 Blog: Wizard gears up for ten-day […]

  12. That article by Jeremy Philips is really interesing indeed. Thanks for sharing.

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Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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