JK Rowling, author of the phenomenally successful Harry Potter books, and her publisher Bloomsbury Publishing plc, have failed in their attempt to stop a copyright infringement claim going any further on the grounds that it has no chance of succeeding at trial.
In a judgement issued on 14 October 2010, the judge said that “I have reached the conclusion that this claim may succeed but that it is improbable it will do so”. On this basis, he was not able to throw out the claim entirely, as Ms Rowling and her publisher had wanted, and the judge may now require the claimant to provide security for Ms Rowling’s and Bloomsbury’s costs before being allowed to proceed further with the claim.
The claim involves two books: the first is called called Willy the Wizard (“WTW”), and was written in 1987 by the late Mr Adrian Jacobs.
The other book in this case is somewhat better known – it’s Harry Potter and the Goblet of Fire, the fourth book in JK Rowling’s Harry Potter series.
The claim is being brought by the trustee of Mr Jacobs’ estate, Mr Paul Allen, and is essentially that, as a result of copying, the Harry Potter book reproduces a substantial part of WTW. This is not one of those cases where the claimant can show that there are large parts of his or her work that have been reproduced more or less verbatim. Instead, the case is that aspects of the plot, sub-plots, themes and incidents in WTW have been copied. This is like the Da Vinci Code case (where Michael Baigent and Richard Leigh sued Random House, publisher of The Da Vinci Code by Dan Brown), claiming that Dan Brown’s bestselling book had copied essential elements from their own book.
Both this case and the Da Vinci Code case make it clear that “Copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves.”.
Mr Allen’s claim is based on the argument that in 1987, Christopher Little, who became Ms Rowling’s literary agent some eight years later, was given copies of WTW and that he gave a copy to Ms Rowling before she wrote Goblet or, indeed, any of the other Harry Potter books.
There was a substantial disagreement as to the facts, which the judge is not required to resolve on this type of an application, since that requires the sort of evidence only available at the full trial. However, the judge did go on to consider the elements of WTW that the claimant said had been copied in the Harry Potter book and the principles that would have to be applied in assessing whether or not a substantial part of WTW is reproduced in the Harry Potter book as a result of copying. The judge concluded that “the similarities upon which Mr Allen relies seem to me to constitute ideas which are relatively simple and abstract and I strongly incline to the view that they are at such a high level of generality that they fall on the ideas rather than the expression side of the line. However, I do not feel able at his stage to say that Mr Allen’s case is so bad that I can properly describe it as fanciful.”.
So this case will continue, assuming that the claimant is able to fulfil any conditions about security for costs that might be imposed by the judge when he has heard further argument from each side. I can’t imagine that JK Rowling and Bloomsbury will settle the case, irrespective of the merits (or otherwise) of this particular claimant’s case (as to which I am not really in a position to pass comment) – to do so might open them up to an avalanche of further claims from others hoping to profit from the success of the Harry Potter books.