JK Rowling fails to stop copyright infringement claim

22/10/2010

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.


Are Tweets Copyright?

12/08/2009

First of all, I must make it clear that this is nothing to do with Tweetie Pie,  Tweetythe canary character from the Warner Brothers series of animated cartoons, usually also featuring Sylvester

Sylvester J Pussycat

Sylvester J Pussycat

the cat. Having said that, it’s a good excuse to include some pictures and I suppose it’s just about possible that there might be some actual connection — if anyone knows the answer to that, do please let me know.

For the purposes of this item, tweets are about Twitter. Most people have heard of Twitter by now. It’s a way of finding out what people are up to and letting others know what you are up to.

Basically, you just type in an answer to the question “What are you doing?” in 140 characters or less, and then these messages, which are called “tweets”, are posted to your profile or your blog, sent to your followers, and are searchable on Twitter search.

But are tweets protected by copyright? And who cares anyway?

At 140 characters or less, tweets are very short. It’s quite likely that the absolutely vast majority of tweets will not fulfil the legal requirements to constitute a copyright literary work under UK copyright law or the equivalent under copyright laws of other jurisdictions, primarily because not enough skill and labour will have gone into writing them (UK legal requirements) or will not be regarded as sufficiently original under copyright laws elsewhere.

Until very recently, the number of words alone and might have been enough to make a reasonably-informed judgment as to whether something is likely to be protected by copyright. However, the European Court of Justice has just decided that as few as 11 words can constitute a sufficient part of a copyright work to be protectable, if the words reproduced “are the expression of the intellectual creation of their author”, and the ECJ went on to say that it is for the national court to make this determination.

Consider the following situations:

  • A poet publishes a complete (albeit short) poem, such as a haiku, on Twitter
  • A poet publishes a longer poem on Twitter, one line at a time — each lie in being a separate tweet
  • An author publishes a novel on Twitter, one sentence at a time (bearing in mind that many years ago, books were often originally published in serial form, in weekly instalments — including works by Charles Dickens — so publication on Twitter might be a way of taking this to an extreme!)

Some of the above individual tweets might not be protected by copyright, e.g. individual sentences from the novel postulated above. But others might well be protected by copyright if they involve sufficient skill and labour or are sufficiently original. And if any individual tweet in such circumstances might not be protected by copyright, would a collection of two, or three, or more such tweets together constitute a protectable copyright work? I think that might well be the case.

Consider the following scenario:

  • Someone searches through Twitter for all, or many, of the posts by a particular celebrity, say Stephen Fry, and reproduces them in a book or on a website.

Does that infringe Stephen Fry’s copyright? Does that infringe any rights (such as database right) that might be owned by Twitter, even though they disclaim ownership of Intellectual Property Rights in users’ tweets?

Retweeting is the process whereby someone sends the whole or part of someone else’s tweet either with or without something they themselves have added. Clearly this is a reproduction of someone else’s work and, if the material reproduced is protected by copyright, then questions of copyright infringement arise. However, it’s possible that there might be implied some sort of limited license to “retweet”, as this appears to be a key feature of Twitter.

Twitter themselves are clearly aware that their service has the potential to be used in such a way that it infringes copyright, since they provide a means for resolving disputes in their Terms and Conditions.

I’d be interested to hear other people’s thoughts on copyright and other IP aspects of Twitter — or indeed other social networking websites.