This article is written by Swayamsiddha Das who is pursuing a Diploma in Intellectual Property, Media & Entertainment Laws from LawSikho.
Table of Contents
Introduction
When it comes to World of Wizardry and spells, JK Rowling’s Harry Potter always tops the list. Since 1997 it has wrapped everyone be it children or adults around its fingers. Apart from attracting voracious readers and global attention, Potter has attracted various IP rights as well.
Harry Potter is one of IP’s most protected fictional characters, it falls under the contour of both trademark and copyright laws, but then is it only the fictional character that is protected? what about the literary work(novel), Soundtrack, spells, the movie/plot, etc. are they equally protected under the copyright laws? Will trans-border reputation make Harry Potter a trademark? Is Harry Potter a brand name for JK Rowling and Warner Brothers? If yes, then who is the muggle(person) who owns such rights?
Hence, character owners, music composers, writers, etc. associated with the fictional character should know the legal rights of fictional characters and elements surrounding them. For which it is very important to establish if the above-mentioned elements are protected under the IP rights or not. 
IP rights in case of fictional character
It is often said that characters are the soul of the story/movie. Without them, the writer’s mind is a blank canvas. People may at some point forget the story/plot but the characters in the story remain imprinted in their minds forever. But still, they don’t have strong legal protection from infringement.
The mere names of Sherlock Holmes, Tarzan, James Bond, and Harry Potter have significant market power and popularity among readers. When a reader becomes acquainted with a character, he/she tends to spend more time with them in their imagination and play various stories in their minds. Hence it’s safe to assume that sometimes readers use them in their literary work, not only they borrow the name, sometimes they borrow the plot as well. This very act amounts to infringement of the rights of the original creator.
The selling of the fictional character by merchandising and earning profit is also an area that needs to be protected as they tend to be vulnerable to infringement caused by other competitors in the market. To protect the rights of both the creator as well as the creator/owner individually the role of IP becomes very significant.
Harry Potter and copyright
As we know that copyright subsists in the work of original literary, musical, dramatic, and artistic works. Harry Potter is a character that is used in both literary and cinematograph works. Hence under copyright law, it is protected under the literary as well as cinematography works. But then the question as to who owns the rights of these works? Is it the author (JK Rowling) of the literary work who owns the rights both in literary as well as cinematograph film or is it the producer Warner Brothers who owns both these rights?
As copyright protects expression and not ideas, hence Harry Potter, when used in the novel (literary work), is completely owned by JK Rowling i.e. the author as it is the brainchild of the author and is the expression of her ideas. The author is considered as the first owner of the original work created and enjoys protection for a period of protection for a lifetime of the author+70 years (UK Copyright Law). So if anyone uses these characters and copies the substantial plot then that will amount to copyright infringement, In the very case of Nancy K Stouffer v. JK Rowling of 2000, JK Rowling herself along with Time Warner Entertainment (who owns ownership over the movie Harry Potter) as well as Scholastic publishers (publisher) was sued by another author named Nancy K Stouffer, for publishing plagiarised work. Stouffer claimed that Rowling has copied important elements like “muggles” from her stories The Legend of Rah and the Muggles and also the use of elements from her sequel Larry Potter and His Best Friend Lilly. Hence JK Rowling has infringed her copyright and trademark rights. Eventually, the case was ruled in favor of JK Rowling as Stouffer was unable to prove that JK Rowling has infringed her IP rights to confuse the public and the word “Muggle” used in Stouffer’s stories are very much different from that of JK Rowling and hence held that the plaintiffs claim of trademark infringement and copyright infringement cannot be sustained.
To sell the work to a large audience, authors go to a various publishing house, similar steps were also taken by JK Rowling so now the question of if JK Rowling has given her copyright right to publishers i.e. Bloomsbury Publishing (UK), Scholastic Corporation (US) and Pottermore (e-book) for publishing the books? And who owns the right to such work? The publishing house has acquired a publishing license agreement from JK Rowling that gives them license to print/produce translation etc. hence JK Rowling still owns harry potter it just she has only licensed her rights to the publishing house for printing and making translations.
The cover of a book often attracts its readers having said that illustrations used in the Harry Potter Novels are a treat to everyone’s eyes. As mentioned that the author is the first owner of the original work created so does that mean that Jim Kay (illustrator of the novel) owns copyright over it? To this, the answer is a no as the work created by Jim Kay was under contract of service, hence it is the publishing house that hired Jim Kay owns the copyright of such work.
It is now established that when it comes to literary works (novels) every element attached beginning from publishing to illustrations made, everything is highly protected. In terms of the owner of such rights, it is JK Rowling who owns it and the publishers enjoy such rights by entering into a license agreement.
Having covered the literary aspect and coming down to cinematograph works, it is Warner Brothers who is the owner and distributor of the Harry Potter movies as in case of cinematograph films it is the producer who owns all the copyright. Without graphics, soundtrack, and dialogues a movie is incomplete and Harry Potter has some exceptional graphics and soundtracks but then are these protected? If yes, then who is the owner? Yes, these elements are easily protected as well under copyright. Concerning the soundtrack used it is Warner Brothers who own them and not the music composer. Ex: the soundtrack for Hedwig in the movie was the original work of John Williams, but then he will not own any copyright as it was under contract of service. Does it mean JK Rowling does not own any rights over the character in the movie? JK Rowling has not lost ownership over the character, she still does own it even in the movie and preserves her original concept and creativity by being an executive producer.
Having established the fact that Harry Potter is highly protected under both forms of copyright that is literary as well as dramatic work, does it mean it also excludes the concept of fair use or criticism? Will making a parody of the Harry Potter Series amount to infringement?
Before dealing with this situation we need to understand that parodies are a form of criticism and will often be considered as an exception to copyright infringement. But then the problem with sequels and parodies is as follows.
The creation of a parody or sequel to a copyright-protected work would, by definition, necessarily require the reproduction of part or all of the work. In general, copying would be considered infringement in the eyes of the law if it is done without the copyright owner’s prior permission, and if it is of the whole or a significant portion of the work in question.
The international litigation against writers was brought for publishing unauthorized sequels, parodies, or even fan fiction of the Harry Potter books, some of the unauthorized works are: “The Harry Potter and Leopard Walk Up the Dragon” published in China, “Harry in Calcutta” published in India, “Tanya Grotter and Magical Double Bass” published in Russia, etc. Some people are more imaginative than others hence the derivatives of Harry Potter are not translated works, but pastiches or variants of fan fiction. However even if these works were introducing Harry Potter in different plots still they were considered as infringement and Rowling and her publishers were successful in securing injunctions against the writers and publishers of Harry Potter and Leopard Walk Up to the Dragon, and the Tanya Grotter novels, Harry Potter’s suit in Calcutta novels for the very reason that the behind producing these parodies were not for criticism and comedy purpose rather the motives are purely commercial and parasitical.
Hence we can say that Harry Potter is highly protected under the copyright act and leaves no room for others to exploit it.
Harry potter and trademark
A fictional character, like a graphic character, cannot gain trademark protection for its own sake but can be protected when the trademark suggests a specific source of products and services.
In the case of a registered trademark, the authors or the owners safeguard their rights as they have an exclusive right to identify the logo with the merchandised products and services any unauthorized use of such a mark is an infringement of the owner’s statutory rights. The owner also has the right to prohibit anyone from using identical or confusingly similar marks without the owner’s permission.
In case of an unregistered trademark, the owner can file a passing-off suit to defend his or her rights by demonstrating that the trademark has a reputation/goodwill, that the third party misrepresented the trademark, and that the owner suffered a loss of rights.
Having discussed the role of the trademark in the case of fictional characters we can now put forward the question of whether Harry Potter being a fictional character be protected? Whether Harry Potter is a registered trademark? If yes, then who enjoys such rights? Can these rights be granted to 3rd parties?
The answer to the above questions is yes, Harry Potter is protected under the Trademark law and it is also a registered trademark, and all these rights are owned by Warner Brothers. The very reason for registering the Harry Potter characters, theme, and other elements in the form of merchandising is to gain economic advantage and prevent any unauthorized person from bank upon the goodwill and reputation acquired by the company through its character. This does not mean that no one is allowed to sell Harry Potter-themed goods/services except for Warner Brothers. A person who desires to sell Harry Potter goods and services should first acquire a license from Warner Brothers regarding the same.
Ex: famous toymakers like Hasbro and Mattel have acquired the license from Warner Brothers for selling/distributing Harry Potter-themed sweets and confectionaries like the chocolate frogs etc. in the US. From this, we can answer the last question by saying, yes rights can be transferred to 3rd parties for using the trademark Harry Potter.
Conclusion
Harry Potter was the key for JK Rowling to open her account in “Gringotts Wizarding Bank” filled with wealth forever. This undoubtedly encourages everyone to create original work using their human intellect but also teaches them the importance of recognizing the IP rights that are associated with their work. Without recognizing the IP rights surrounding Harry Potter, JK Rowling could not be one of the most loved authors of all time.
References
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