Nathan Fan is a JD Candidate at Osgoode Hall Law School
Despite the multi-billion dollar success J.K. Rowling has achieved with her Harry Potter franchise (or perhaps in light of that success), Rowling has been unable to side-step copyright infringement lawsuits. On 14 October 2010, Justice Kitchin of London’s High Court held that plagiarism allegations by the estate of the late Adrian Jacobs against Rowling and publisher Bloomsbury will go to trial, after an application by Rowling to dismiss the lawsuit was rejected. The estate of Adrian Jacobs filed a £500 million suit last year alleging that J.K. Rowling’s fourth book, Harry Potter and the Goblet of Fire, misappropriated copyrightable material from Jacobs’s 1987 children’s book The Adventures of Wily the Wizard.
Jacobs’s estate claims that Rowling’s book copied substantial parts of his. Allegedly, there are many similarities in both characters and elements of the plot, such as Willy and Harry both being required to solve a task as part of a wizard contest, both characters trying to rescue humans from half-human creatures in a bathroom, and the idea of wizards traveling on trains. Jacobs’s estate also alleges that Jacobs first sent the manuscript to Christopher Little at Bloomsbury Publishing, who later went on to represent Rowling, before having his book published by a smaller company. Although Justice Kitchin has stated that the claims from Jacobs’s estate were “improbable”, the claim was allowed because it may still succeed at trial.
This is not the first claim of plagiarism against Rowling’s Harry Potter franchise. In 1999, Nancy Kathleen Stouffer alleged that Rowling and publisher Scholastic infringed her 1984 works The Legend of Rah and the Muggles and Larry Potter and His Best Friend Lilly (see Scholastic v Stouffer). It was alleged that Stouffer had first created the concept and term “muggle” and the concepts in the Larry Potter work, to which the Harry Potter series bore similarities. Ultimately, the U.S. District Court dismissed the allegations, holding that “no reasonable juror could find a likelihood of confusion between ‘Larry Potter’ and ‘Harry Potter’” and that Stouffer had fraudulently changed her documents to retroactively insert the word “muggle” into her works.
Jacobs’s lawsuit takes the form of the oft-pursued copyright infringement suit against successful writers and franchises. In Preston v 20th Century Fox Canada Ltd, Preston was the author of a 1978 Space Pets script that told the story of warring tribes of small, furry creatures inhabiting a rain forest on an unexplored planet. Also within the script was Preston’s name for one of the tribes – “Ewok”. Preston alleged that he had sent the script unsolicited to 20th Century Fox, addressed to George Lucas, in 1978. Five years later, George Lucas released the Return of the Jedi. The Federal Court held that Lucas would not have had access to unsolicited mail and would not have read the script. However, even if Lucas had access to the script, the scenes to which Preston claimed infringement were not subject to copyright as they were “drawn from a common pool of folklore” (i.e., within the public domain).
Another well-known plagiarism lawsuit found George Harrison of the Beatles guilty of plagiarism. In Bright Tunes Music v Harrisongs Music, it was found by a U.S. court that George Harrison’s “My Sweet Lord” had infringed the copyright in the song “He’s So Fine” recorded by the Chiffons. Although there was no evidence that Harrison had direct access to “He’s So Fine”, the court ultimately held that due to the song’s popularity, Harrison must have subconsciously copied the elements of the song.
Returning to Jacobs’s case against Rowling and Bloomsbury, the determination of copyright infringement will of course depend on the finding by the trial judge. As noted, there are certain elements in genres of works that belong in the “common pool” of the public domain and cannot be copyrighted. Thus, the only actionable causes for infringement that Jacobs could succeed on are similarities that lie outside of these public domain elements. Further, if it is found that Rowling had access to Jacobs’s work through Bloomsbury Publishing, or that Bloomsbury’s knowledge of Jacobs’s work could have influenced Rowling’s writing, it may diminish Rowling’s defence of independent creation and open her up to a greater risk of a finding of copyright infringement. Ultimately, if Jacobs’s estate wins the infringement suit, the judge may award the estate’s claim for an injunction from the sales of all Harry Potter and the Goblet of Fire books and a substantial monetary award in damages or a share in the profits.