1709 Blog: for all the copyright community

Wednesday, 20 July 2011

Harry Potter and the Idea/Expression Dichotomy

Amid the kerfuffle over the News of the World phone-hacking scandal, shaving foam humble pie, and wife Wendi's bodyguard skills, I almost failed to notice the latest (and hopefully last) instalment in the Willy the Wizard v Harry Potter plagiarism saga.

For those who would like to refresh their memories of the history of the case, see previous posts on the 1709 Blog here, here and here, and on the IPKat here. In short, Adrian Jacobs authored a book entitled "The Adventures of Willy the Wizard" and had it published in 1987. In 2004, his estate accused JK Rowling of having copied substantial parts of the book and using them in the first five books of her "Harry Potter" series. The claims referred especially to the fourth book, "Harry Potter and the Goblet of Fire".

Acccording to reports in, among others, the Guardian (here) and the BBC (here), the case was struck out, rather boringly, because the estate of Adrian Jacobs failed to pay the security for costs ordered by Mr Justice Kitchin and confirmed by the Court of Appeal.

If you are disappointed and keen on some idea/expression dichotomy exercise, you may still get it, and on three different levels at that:

- Level 1 ("I really don't have much time"): read the article in the Telegraph (here)

- Level 2 ("Willy the Wizard? I'm intrigued"): go to the "Willy the Wizard" homepage and have a look at the extracts from the book (here)

- Level 3 ("I only read contributions by the judiciary, thank you very much"): peruse Mr Justice Kitchin's account of similarities in Allen v Bloomsbury Publishing Plc & Anor [2010] EWHC 2560 (Ch), paras 20-47 (here). And bear in mind his statement at para 85:
"[C]opyright does protect the content of a literary work, including the selection, arrangement and development of ideas, facts, incidents and the like. In assessing the crucial question as to whether a substantial part has been taken, the court must have regard to all the facts of the case including the nature and extent of the copying; the quality and importance of what has been taken; the degree of originality of what has been taken or whether it is commonplace; and whether a substantial part of the skill and labour contributed by the author in creating the original has been appropriated."

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