Harry Potter And The Cursed Legal Update

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

It has been about a year since we published Harry Potter Lawsuits and Where to Find Them, my attempt at a comprehensive review of Harry Potter-related litigation. Why update the article now? Two reasons. First: The long-awaited book version of Harry Potter and the Cursed Child hits the shelves on July 31, 2016. Since JK Rowling is supplementing her story, it seems like it’s a good time for us to do the same.

Second: I needed an opportunity to talk some nerd smack. Earlier this year, Ms. Rowling announced the location of the “American Hogwarts,” in other words, the fictional North American wizard school that will play some role in connection with the upcoming film, Fantastic Beasts and Where to Find Them. Before the announcement, there was speculation that some hip or trendy upstart might challenge Massachusetts for its preeminent place in witchcraft folklore, but in the end justice prevailed. Mount Greylock, the highest natural point in the Commonwealth and a mere 45 minute broom ride from Salem, was identified as the home the Ilvermorny School of Witchcraft and Wizardry. So in your face, Roanoke! Eat it, Area 51! As for you New York, you already have the entire Game of Thrones universe rooting for your football team, so you’re just going to have to let this one go.

Ok, without further ado, here are the highlights and lowlights of how Harry Potter has touched the legal world in the last twelve months or so:

Is Merrick Garland the Chosen One? As we discussed last time, many thought Justice Scalia’s reference to “jiggery-pokery” in King v. Burwell was the very first Supreme Court nod to Harry Potter, but it turned out to be a false alarm. However, the lack of SCOTUS notice of the ‘boy who lived’ seems likely to change if Obama-nominee Merrick Garland ever gets there. It turns out he is a fan. Speaking to a group of high school students in May, Judge Garland encouraged the kids to do good in the world even if they decided not to make the law a career, like “one of my favorite people: Hermione Granger.” Then, quoting Professor Dumbledore, Judge Garland continued, “it is our choices that show what we truly are, more than our abilities. So make the choice to do some good in the world.” In June, Judge Garland doubled down on the Harry Potter shout-outs and told a group of elementary schools kids: “There is an important step between dreaming and doing; you have to work for it. Dreams don’t come to you by magic, even if you’re Harry Potter.” Of course, Judge Garland must also be wondering if a little magic couldn’t hurt when it comes to Senate confirmation.

Harry Potter and the Extended Copyright Metaphor. Harry Potter continued to serve as an extended metaphor (and maybe not the most effective one) in the blockbuster Oracle v. Google copyright trial. In order to emphasize the creativity and originality of the JAVA code architecture, Oracle analogized the various levels of its computer language to the Harry Potter book titles, chapter names and topic sentences. In rebuttal, Google’s attorney reportedly retorted:

What are we looking at Harry Potter for? They want to talk about Harry Potter rather than about what the labels do . . . java.net . . . java.io . . . java.security . . . This is what we’re looking at . . . Not Harry Potter.

Google prevailed at trial on its fair use defense, and Oracle’s post-trial motions are pending.

An A-MAZE-ing Idea. Author Tize Clark brought suit against Random House and others claiming that James Dashner’s popular Maze Runner books were ripped off from her 2002 manuscript, The Maze. Among other things, Clark alleged the copying of her “ideas and concept” of a giant maze with moving walls and robotic creatures. The District of New Mexico offered a mini-lecture in comparative maze literature, from Theseus to Harry Potter and the Goblet of Fire, and informed the plaintiff that she did “not have a monopoly on the idea of . . . teenagers attempting to escape a giant maze [while being] consistently thwarted by formidable elements.” The Court also found a lack of substantial similarity between the works, and dismissed the claims.

“Harry Potter” and the Ethnic Intimidation Charge. A minor named CW and his friends were adjudicated delinquent by a Pennsylvania juvenile court after they assaulted some “different” and “weak” kids in the high school cafeteria. The specific charges were harassment and ethnic intimidation. CW appealed on the grounds that he did not knowingly waive his Miranda rights (Mom apparently waived them for him), an argument which probably wasn’t going to get him too far even if he won it, because he and his genius buddies also videotaped the whole thing and uploaded it to the internet. Among the evidence that the harassment was racially motivated were the juveniles’ use of the terms “pink” and “Harry Potter looking motherfucker.” The Superior Court affirmed.

From the Sublime to the R-r-iddikulus: Curtis Lee Washington was charged with “intentionally discharge[ing] a firearm proximately causing death.” At trial, closing arguments got very “meta.”  Defense counsel tried to pull back the veil on the prosecution strategy by explaining that it was the prosecutor’s job to pretend that doubt doesn’t exist.  The Fresno County prosecutor responded with a PowerPoint presentation entitled “Cross Exam as Smoke, Illusion and Slight [sic] of Hand,” during which he explained to the jury:

So how do you—what is a juror to use? Evidence and facts . . . Now I’m reminded of the movie Harry Potter. In Harry Potter there’s this creature called a Bogart. And it assumes whatever your worst fears are. And whatever your fears are, it becomes. So if I was afraid of a snake, and there was one here, a snake would pop out of my bag. Oh, oh, oh. And the way you get rid of this is you pull out your little magic wand and the spell is ‘ridiculouso’ also known as ‘ridiculous.’ And I would suggest that as you listen to some of those arguments Counsel [was] making that you use that wand and try it out for size, because I think if you do you’re going to find that most of them are ridiculous.

On a habeas petition to the Eastern District of California, the Court held that this speech was a fair response to defense counsel’s argument and not prosecutorial misconduct. The Court corrected the prosecutor’s misspelling of “Sleight of Hand,” but nobody bothered correcting several egregious misspellings of the “Riddikulus” charm.

Too Young for Hogwarts. In September 2015, the Children’s Advertising Review Unit (“CARU”) of the Better Business Bureau announced some concerns with Pottermore.com, an official Harry Potter fan site. The main area of CARU’s focus was on the ability of clever kids under 13 to register without parental consent, thus running afoul of CARU privacy guidelines about the collection of personal information. The site operators agreed to make certain changes to ensure the verification of parental consent, and to add some other minor privacy enhancements.

Saint-Adeniran v. Twentieth Century Fox. Plaintiff, the alleged author of an unpublished story about a princess with the special ability of making flowers bloom, brought a copyright infringement action against Twentieth Century Fox, alleging that the studio copied her story to make the movie Epic. In a complaint punctuated with smiley and frowny-face emojis, Plaintiff explained that she had written a “Christian” response to Harry Potter, because “it is WRONG to glorify magic. It’s very, very WRONG.” So, in order not to glorify magic, she “decided to write about this Princess Sophia – myself, who naturally has this awesome gift SHE IS BORN WITH. No magic. Nothing.” Plaintiff was at first outraged when she tried to sell her story, because:

I NEVER HEARD BACK FROM ANYONE!!!! At first I was unsure why I hadn’t heard back even though I was sure my story . . . treatment was FANTASTIC! But thankfully, I then remembered J.K. Rowlings billionaire author of Harry Potter said she had sent out Harry Potter script to 400 different people, and NO ONE got back to her .:… J.K. Rowling. We all know that later Harry Potter became huge. I think they were planning to steal her script. That’s what these people do. UNFORTUNATELY!

Plaintiff alleged that the makers of Epic “must have … somehow” got a hold of one of the manuscripts she had distributed, either through the U.S. Mail or through an alien spying virus known as “preterinfection.” The Central District of California dismissed the case at the first opportunity, finding Plaintiff’s complaint “nonsensical.”

Harry Potter and the Obvious Patent. Richard Correll attempted to register a patent for a “museum for horror, science fiction and fantasy movie artifacts,” comprising an entrance hall, an interior exhibit hall, and “at least one movie artifact positioned in the interior exhibit hall to show how the artifact was used in a movie to frighten and entertain.” The patent was rejected as being obvious in light of an earlier patent with a priority date of June 2001 for an “interactive dark ride,” one embodiment of which included the “theme of a ‘magic’ training center for would-be wizards in accordance with the popular characters and storylines of” the Harry Potter book series. Aha, argued Correll! That’s just for books – there were no Harry Potter movies back then (the first movie was released in November 2001). So perhaps Correll’s claims were not so obvious after all, right?  Wrong, said the PTAB, which took “official notice” of the Harry Potter film release dates and held that, by the time of Correll’s priority date in 2008, there were plenty of Harry Potter movies. The rejection of the patent claims was affirmed.

US v. See. Harry Potter may have ended the political career of a frequent Republican candidate for the Pennsylvania General Assembly. According to a two count Information filed in the Western District of Pennsylvania, Michael K. See was selling pirated Harry Potter DVDs on eBay even while he was running for office. In June 2016, See pled guilty to criminal copyright infringement.

Harry Potter and the Shamelessly Parasitic Headline. Finally, we feel obliged to mention what appears to be the darling legal story of the UK tabloid press this summer: Just type “Harry Potter lawyer” into Google and you’ll see tons of stories about Solicitor Alan Blacker. Blacker got himself into trouble by allegedly exaggerating his credentials and showing up in Court wearing eccentric outfits. After skipping his disciplinary hearing because it was being held on his birthday, Blacker has now reportedly been “struck off” the rolls and fined. What’s the connection to Harry Potter? Well, a judge once told Blacker: “If you want to look like something out of Harry Potter you can forget coming to this court ever again.” This was apparently related to Blacker’s superficial resemblance to the actor Robbie Coltrane, who plays Hagrid in the movies. As a result of this one offhand remark, Mr. Blacker’s plight has become a shameless excuse for every UK media outlet (including the BBC; sigh) to put the words “Harry Potter” in the headline of a bunch of stories that are decidedly not about Harry Potter. Some of you may be thinking that I’m not the best-positioned blogger in the world to be making this criticism. Fair point, M’lud, I’ll take it under advisement.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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