As recently reported by the Leaky Cauldron, the plagiarism case against J.K. Rowling has been dismissed by a US Federal Court.
A US Federal Court disposed of a legal action today inititated against J.K. Rowling in which it was alleged that Harry Potter books were appropriated from a story published in 1987 called ‘The Adventures of Willy the Wizard No 1 Livid Land‘ by Adrian Jacobs. The action was brought by the legal estate of the little known British author.
The estate’s legal claim revolved around the claim that J.K. Rowling borrowed from Jacobs’ work in “Harry Potter and the Goblet of Fire.” It was alleged by the estate of the late Adrian Jacobs that JKR took a substantial part of the 36 pages of the children’s book and was therefore liable for copyright infringement.
The Court remarked that there were major differences between the works, in terms of their plot, central theme and that in subtance and literary style they evoked different experiences from readers.
Judge Shira Scheindlin’s judgement reflects her view that the lawsuit was rather spurious and far fetched given the gulf between the two works in terms of their overall feel. A history of the matter can be found here.
When evaluating such claims that storylines, characters, plots, climaxes and the like have been taken by an author a Court, particularly in works involving literary and playwright cases, Judges can sometimes find it difficult to resolve competing claims to coprygight.
When dealing with themes and common stock characters the courts look beyond find details for there will always be common elements, particularly where one is dealing with well worn themes taken from mythology and folklore. Archetypal stock themes are not the province of protection by copyright as they inspire further creative endeavour by other authors.
In Nichols v Universal Pictures Corporation, a landmark US case in this area the eloquent judgement of Justice Learned Hand is often cited to explain the manner in which the the idea/expression dichotomy operates in adjudicating claims relating to ownership of works of these kinds.
Justice Hand was was dealing with a case which comprised of fairly universal themes of the day, works concerned with stories about marriages between jewish men and catholic Irish girls frowned upon by the fathers. In both cases, the secret is eventually revealed relating to the true race of the young star struck lovers to both families and there is a reconciliation and happy ending. These kinds of themes cannot be granted copyright protection.
As Hand J remarked:
“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out..but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas” to which, apart from their expression, his property is never extended. ..Nobody has ever been able to fix that boundary and nobody ever can..We are rather concerned between expression and what is expressed. As respect plays, the controversly chiefly centres upon the characters and sequence of incident, these being the substance.”
It isn’t the first plagiarism claim to have plagued JK Rowling, nor will it be the last. Other authors have faced similar claims, such as Jeffrey Archer.
One of the most famous cases where such a claim was upheld involved the legal battle between the film Jaws by Peter Benchley where the Plaintiffs claimed the Defendants had infringed their copyright in the motion pictures Jaws and Jaws 2. In Zeccola v Universal City Studios the story the similarities went far beyond the mere idea of sharks terrorising a town. The Court found that the films were infringed by the earlier works based on the striking similarities in detail between the two works.
Copyright isn’t intended to protect ideas as such rather the expression thereof although some would argue that there is a fine line in reality. Therefore if you are an author remember that if you divulge your concept for a best selling novel, you don’t have a legal right to enforce it under copyright law. The best protection you can hope for is to take precautions to protect the expression in your work, in whatever form it is written.
Of course that is easier than it sounds as you need to divulge enough of your idea for practical purposes in order to find a publisher interested in publishing your work. The best you can do is to take measures to establish ownership in your work.
You may also wish to enter into a confidentiality agreement with a person who peruses your work, however proving and enforcing an action for breach of confidence can be expensive and difficult to prove.
However you cannot protect the idea or concept for a TV format, reality TV show or novel, rather only the form of expression.
However under Australian law, there is case law which shows how perilous it can be for persons to draw inspiration from a particularl work under the actions for passing off or a breach of the Trade Practices Act.
One example is the infamous Crocodile Dundee, Koala Dundee case (1988) 12 IPR 508, a case which established that a person may have a valid claim against another who misappropriates either their image or get up or the look and feel of a particular work or trader’s branding.
In Crocodile Dundee Paul Hogan and the directors of the film Crococoeile Dundee swere successful in shutting down a venture that sold tourist paraphernalia out of a Surfers Paradise Shop bearing the logo “Koala Dundee”. The tourist paraphernalia consisted of apparel with depictions of a koala bear wearing a bush hat with teeth in the band, sleeveless vests and sometimes carrying a big knife.
Hogan argued that Koala Dundee was dressed too similarly to him and that this opportunistic Koala was trying to capitalise off Hogan or Mick Dundee’s image in the Film Crocodile Dundee.
In short, Dundees’ lawyers argued successfully that this opportunistic koala was cashing in on Hogan’s good reputation or free riding.
The Court found that there had been a wrongful appropriation of the reputation of Hogan’s character and sent Koala Dundee back to his Eucalyptus tree because people who looked at the apparel or logos could wrongfully associate the goods with the imagery from the film.
There have been other cases brought by Paul Hogan based on this trademark type claim called passing off which also has recognition in the Trade Practices Act. For instance the makers of a Grosby commercial became caught up in a similar saga as the koala, who was after all only really wearing the clothes of an Australian outback character. (See Pacific Dunlop Holdings v Paul Hogan)
It would have been quite obvious to the reasonable person that the Koala wasn’t Paul Hogan, however that is not the test under trademark/passing off or ‘look and feel’ cases.
The test in this cases revolved around whether a reasonable person in the target market for the goods would look at the two products, or works and think that there may be some association with either Paul Hogan or the legendary Mick Dundee or think that there is some kind of affiliation, sponsorship or endorsement between the two rather different characters. The Hogan cases are an example of the way in which trade mark type cases and law in the form of passing off has protected to some degree celebrity personality in Australia which lacks publicity rights which are enjoyed by US celebrities in the wrongful use of their image.