1709 Blog: for all the copyright community

Monday, 10 January 2011

Willy the Wizard falters in the US, but can he still pull a rabbit from

The BBC report, "Harry Potter plagiarism case dismissed" (here), will not have escaped the eagle eyes of 1709 Blog readers.  The headline refers not to the ongoing litigation in England and Wales between the estate of Adrian Jacobs and the JK Rowling crew, which is set to go to a full trial (see earlier posts on the 1709 Blog here and on the IPKat here) but to its United States counterpart.

In both the US and England and Wales actions Jacobs' estate has claimed that the plot of Harry Potter and the Goblet of Fire plagiarised parts of his earlier Adventures of Willy the Wizard. Judge Shira Sheindlin has however concluded that there were major differences between the two works, which were "distinctly different in both substance and style", adding that "the contrast between the total concept and feel of the works is so stark that any serious comparison of the two strains credulity."

While Mr Justice Kitchin, in the England and Wales proceedings, doubted that the claim would succeed at full trial, it must be remembered that the test of infringement in the United Kingdom does not turn on whether there are major difference between the works in substance or style, or whether the contrast between the two is so stark as to strain credulity, but boringly whether there has been a reproduction in the later work of all or a substantial part of the earlier one -- and a part doesn't have to be very big in order to be  substantial.  This blog accordingly waits with unfeigned excitement to see whether, as has been predicted, the action will fail or whether Willy the Wizard will have just enough magic in him to achieve a result against his best-selling foe.

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