Mr Justice Kitchin last week held back from giving summary judgment in Allen v Bloomsbury Publishing Plc & Anor. In this case Paul Allen, trustee of the estate of Adrian Jacobs, is suing J. K. Rowling and Bloomsbury for copyright infringement (see previous post here) and the defendants had applied for summary judgment.
The judge was unable at this stage to be 100% sure that Rowling hadn’t read Jacobs’s Willy the Wizard before she wrote Harry Potter and the Goblet of Fire. Nor was he sure that the Goblet of Fire hadn’t copied a substantial part of Willy.
The claimant says the Goblet of Fire takes five main plot elements from Willy:
1. a wizard contest
2. the wizards have to work out what their task is
3. they work it out in a bathroom
4. they complete the task using information from helpers
5. the task involves rescuing hostages held by half-human, half-animal creatures
Do these elements add up to a substantial part of Jacobs’s work?
Kitchin J, following the Da Vinci Code decision, said that ‘copyright does protect the content of a literary work, including the selection, arrangement and development of ideas…’ However he was strongly inclined to the view that the similarities were ‘at such a high level of generality that they fall on the ideas rather than the expression side of the line’.
Where is this line? Any copying of a work that isn’t slavish or verbatim copying is copying an idea, not its expression. Should ideas be less worthy of protection because they are more abstract? Do the grand schemes that caused Adrian Jacobs to jump out of the bath shouting ‘Eureka!’ deserve less protection than small incidents that came to him as he brushed his teeth?
Lord Hoffmann in the House of Lords judgment Designers Guild determined that saying copyright doesn’t protect ideas actually means copyright doesn’t protect those ideas that have no connection with the literary, dramatic, musical or artistic nature of the work, or unoriginal ideas. ‘Generally speaking,’ he said, ‘in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part.’ Generally speaking and less likely being the operative words. Surely the question must be not ‘Are these ideas too abstract?’ but ‘Are these ideas unconnected with the literary nature of the work or are they unoriginal?’
Clearly Jacobs’s five wizard themes are connected with the literary nature of his work – but are they original?
An excellent article but to escape the knit-picking it is wisest to use common sense and aske the right questions.
Why should what is common cultural heritage decide the issue? Should it not be the unique borrowings which Rowling may not have created and can be proven not to have created and their relative significance in the success of the story? It’s a bit like a burglar showing you around his house. He is not going to make a big deal about the Hi-Fi he bought legitimately in Woolworths but the sketch by Picasso he nicked from the mansion he robbed in Crete. He knows full well the common store of goods in his house do not make his house unique. The presence of the Picasso alone does that. So should it be with plagiarism suits. Which unique elements were taken from the work of another and deliberately so? And what significance or contribution to the success of the story do they consititute? From that point of view Rowling could indeed be in very big trouble as the character and whacky nature of the wizarding world created by Jacobs and which has generated so much success seems to have been lifted bodily from the mind and soul of his work. Did she know he was dead and could do nothing about it? That would mean she had access to his work and that Little her agent has possibly lied to the court. That raises a much more serious question. Did Little know Rowling before he "discovered" her?
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