This article has been written by Ashwene Vij, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
A walk into the wizarding world with an added sense of humour makes the content easier to be acceptable and enjoyed rather than the same content portrayed in a serious way. Parodies are quintessential in nature without which life would be nothing but as dark as Forbidden Forest. Parody in the literal sense employs humour in commentary and criticism. It is an imitation of another person’s work or existing work to expose the flaws of the original work. Successful parody is created when the audience recognizes the original work and can differentiate the work in the way it is ridiculed. It is heavily dependent on the original work as it is an extension and borrows of the original work.
Harry Potter is a global franchise and even the mighty wizard and its writer needs no introduction. It being a huge phenomenon has been parodied worldwide. The legal history of parody reveals a change of attitude and variety of approaches in different jurisdictions around the world. Some potter parodies are welcomed, and some are not as there seems to be a thin line between Plagiarism and Parody. Parody is a debatable issue as there is no set boundary even though some countries have protected it. Parallel fictional Potter worlds have been created and now such people are earning huge sums of money. A classic example of “Voldemort and the Teenage Hogwarts Musical Parody’ is not authorized, sanctioned, licensed or endorsed by J.K. Rowling, Warner Bros. or any person or company associated with the Harry Potter books, films or play.”
Legality of parody in India
The legality of parody in India is extremely subjective, as Parodies exist in grey areas and the same have neither been allowed explicitly nor disallowed under the Copyright Act, 1957. Parody falls under the umbrella of Fair use, under Section 52(1)(a) of the Copyright Act specifying that fair use or dealing with any work for criticism or review will not amount to infringement of any original work. As original work will always be traced for comparison, in the case of M/s Blackwood and Sons Ltd. & Ors. v. A.N. Parasuraman & Ors, the 2 conditions adhered for recognizing a parody must be:
(1) Market Substitution Test- Parodists must not intend to compete with the Copyright Holder; and
(2) Value of the matter must be taken in consideration as Parodist must not make improper use of the Original and shall merely use in such a manner the parody exposes the flaws of the original work.
As further clarified by Kerala High Court improper use will not amount to Copyright infringement if parody copies from the original work with a view to criticize or review it.
In the Civic Chandra Case, the Kerala High Court arrived at 3 fold test similar to that of the American Judiciary, the factors considered by the Court were:
(1) the quantum and value of the matter taken in relation to the comments or criticism;
(2) the purpose for which it is taken; and
(3) the likelihood of competition between the two works’
Further, it held that Drama did not lead to Copyright infringement and was not a parody as such, but a counter drama, as expressly termed by the Court. The portrayed Drama reached its purpose in terms that the Original drama as propagated had failed to reach its objective and since this falls under criticism or review, this would constitute fair dealing or use.
India nevertheless has not left behind in terms of Harry Potter parodies be it memes or truly driven Social media Content. Harry Potter V. Hari Puttar or cases against the authors of the book Harry Potter in Calcutta which was banned after J. K Rowling sued for IP concerns like illegal Bengali translation of the first book and the other book which was brand new text, starring the boy wizard but set in Calcutta.
Spells (Licenses) from Ministry
Though parodies are not required to be licensed but the transforming books into visual representations, gaming and theme parks are successful only after acquisition of property rights. The Book rights are owned by author J. K. Rowling has granted Bloomsbury Publishing, to publish its books which has transformed the company into a successful publishing house. The books have been translated to more than 50 Languages and thus book shops are earning good profits too. Though Bloomsbury Publishing owns publishing rights, digital rights were owned by the author herself and profits from the same through her website
Pottermore, however, the rights now have been extended to Apple and Google. Warner Bros have acquired film rights including rights of spin off films and that, “Warner Bros. also own the Harry Potter trademarks, including characters, themes and other elements.” Company has Licensed rights further to Hasbro for making sweets like Cockroach Clusters, Chocolate Frogs and Fizzing Whizbees. Gaming and action figures have been acquired by Mattel Inc. Video gaming rights are licensed to Sony while Electronic arts have the right to produce the game.
Rowling has not only limited these rights but has also tried to give the Harry Potter Franchise an existing life by the way of theme parks, the rights of which are owned by Universal studio. And finally the latest book on Harry Potter has turned into a play and the stage rights are not owned by Warner Bros.
An Open License has been issued amidst the Covid Pandemic by J. K Rowling to the teachers by relaxing her usual license fee in turn allowing the teachers to post videos online of them reading the series to teach kids via their homes.
Power of Potter
When Harry Potter parodies were/are created, they not only create a new angle of theories but also get started questioning the Original theories. For instance, after years of Parodies on Harry Potter, the fans started believing the theory that HE WHO MUST NOT BE NAMED became a cannibal to make his Horcruxes as till date J. K Rowling has kept the process of making Horcrux a secret. Another theory which also came through parodies is that Hogwarts is in Harry’s head and that he is dreaming about it in his sleep.
The Most interesting theory of all is that the people born between the years 1985 and 1998 may still be wizards as HE WHO MUST NOT BE NAMED destroyed records after 1984 as he rose to power in that year and destroyed all Muggle born wizard records.
Various works have been parodied by people all over the world. Some of them being Harry Potter Spoof Movie- a spoof of Harry Potter and Goblet of Fire- wherein all the competitors fight for a creamy bun and that Lord Voldemort tries to oppose these contests. In Scary Movie 2, the book titled as Harry Pothead was shown wherein the Harry Potter spokes pot and a picture of him sitting on a rock smoking a bong is shown.
Epic Movie parodied Harry Potter by showing an older Potter. The most recent movie parodied was Harry Potter and the Deathly Weapons which is a fan-based edit of the first movie showing wands being replaced by guns digitally and changing a few famous scenes of interaction between Hagrid and Harry’s cousin Dudley.
Majority books have been parodied being Barry Trotter and the Shameless Parody, Harry Putter and the Chamber of Cheesecakes and unnecessary sequels like Harry Putter and the Deathly Hairballs, Henry Potty and the Pet Rock: An Unauthorized Harry Potter Parody, Parry Hotter and the Seamy Side of Magic and many more and in many different languages. Mad Magazine being a humour magazine has parodied each of it the seven books in its issues through art and headlining them as Harry Plodder and the Pre-Teen Nerds Are Actin’ Bad, Harry Plodder Has Gotta Retire and Harry Potter is a Hot-Blooded Putz etc.
Harry Potter stage shows have also paved the way of parodies being the unauthorised House full shows like Potted potter show, describing all seven books in seventy mins or Potter puppet pals, a parody puppet show showing characters performing on oddly catchy songs.
Defence against the Dark arts
Some parodies or websites have led to plagiarism and infringement of its copyright. In the Lexicon case, Steven Vander Ark created a website like catalogue which was leading to publication of book (encyclopaedia), mentioning the tiniest details to even creating some parodies of Original work. However, the court ruled in favour of Warner bros and J.K. Rowling stated that the work was not consistently transformative even though some parts fell under the ambit of fair use.
The court further added that commercial use and profits weighed more against the purpose of fair use. The position of it being released as a book could be harmed and cause trouble in sales of her books. A key take away from this judgement was that the court specified, “Notwithstanding Rowling’s public statements of her intention to publish her own encyclopaedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works.”
In the case of Harry Potter v. U.S Army, the U. S Army printed a comic in the magazine, The Preventive Maintenance Monthly showing a character similar to that of Harry Potter residing at Mogwarts school under Professors Rumbledore and Snappy.
This comic basically was created to teach soldiers to maintain their equipment and was stated as a non-infringing parody. However, after legal notice was sent by J.K. Rowling’s lawyers as (Harry Potter’s IP is owned by her but the images are owned by the film company Warner Bros), stating that there has been infringement of copyright. After discussion with Rowling’s representative, the army stated and reiterated as to never use the same again.
In another case, the book titled, Tanya Grotter and the Magical Double Bass, was released by Russian author Dmitry Yemets, stating the story of girl residing with her foster family who treats her poorly and that has a distinguishing facial scar which was received during an attack and attends the Tibidokhs School of Magic. The story was stated by Yemets as parody, covering Russian folklore and burlesque sister in relation to Rowling’s work. However even after numbers to cease and desist notices and legal notices stating commonality as ground between Tanya and Harry, Russian author and the publisher still churning out various sequels in form of parodies are earning substantial amounts of profits. The Russian Publisher and the author are not stopping to that but instead, over the parody row, “the author has placed Tanya in the World Dragon ball championship against a character called “Hurry Pooper in one of its books.”
Effect on Image of Harry Potter Franchise
When an original work is being used for criticism or review i.e. parody falling under this umbrella, does not require Licence or permission for the owner of the original copyrighted work. In other words if work is a parody, no license is required. Another defence could be that Parodies are the free speech under Article 19 incorporated in the Constitution of India or in the First Amendment of US law and hence this right is exercised under the justification making the parody of the original work.
A Global Phenomenon happened to the world being, Harry Potter Series or now to say Harry Potter Lawsuits and where to find them or Pottah or Barry Trotter. Parodies on Harry Potter are like derivative works. Few Parodies created on Harry Potter are more creative or ambitious like Harry Potter and the Showdown, in which the father of Chinese boy tells a story in Arabian Night style, after the boy demands reading more about Harry Potter after finishing the first six books and some parodies are insensible like Harry Potter and the Chinese Porcelain Doll, wherein Voldemort is teaming up with Chinese counterpart Yandomort to fight off Harry Potter.
The image that the original Harry Potter franchise has created is simple, magical and out of the box as compared to its parodies. Parodies are not only affecting the image of the Original Version, but the stories have also been tweaked in such a way that the followers of these parodies start believing that the Original Potter series is nothing but a hoax for the world of imagination. Parodies are simply capitalizing on its name and there seems to be no attempt to weave creatively new plot lines or simply just criticize or review the same.
There is no attempt to review the flaws, but instead racist, double meaning and snobbish parodies are being made with an attempt to attract attention and capture its commercial venture with the object to make it turn profitable. Even parodies on its trademark are akin to producing a product that is similar to another registered trademark hoping to confuse its consumer which is basically commercial and parasitical. The original work even though being successful is encroached by these parodies. Few Parodies are made with a view to showcase derogatory treatment of the original work which goes against the interest of the original artist or their valuable moral rights, one of the books using the movies names like Hairy Potty and the Underwear of Justice and also Hairy Pothead and the Marijuana Stone.
Parodies are the way Muggles have turned into Wizards. Ample number of defences to parodists have been provided in the Indian as well as the US laws. Parodies are content that are not built to last as they might stay in the public eye as long the original content is being seen or visible. Fair use should not only include parody specifically but also shall not limit parody to criticism and review. Harry Potter Parodies are not evergreen and can do more harm than good.
It may be a good idea to demonstrate the lighter side but shall not be shown in a manner that is bad for business. Parody cases must be viewed with an open mind and in such a way that nothing shall be avoided by characterizing it as a derivative work. The courts must transparently view and be able to define legal and ill-legal parodies. For a parodist, Parodies could make or break his career. Parodies with respect to Harry Potter are now even more apparent than ever. “The parodist’s works could have a stifling effect on the creation of work with successful litigation against these Parodists which goes against the strain of copyright’s ideals and aims: to encourage learning.”
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