“Harry Potter” and the Copyright Infringement Claims

It may have had humble beginnings, but there’s no denying that Harry Potter is now a global franchise. Since the publication of Harry Potter and the Philosopher’s Stone in the United Kingdom in 1997, the boy wizard’s popularity has continued to grow, and with it, so have the claims of copyright infringement against fan-made projects and events.

Recently, a Digital Millennium Copyright Act (DMCA) has been filed against a Kickstarter project that was claimed to be infringing on Potter copyright. The anthology of 100 horror stories from around the world, originally titled The Monster Book of Monsters Film Project, was posted on the crowdfunding website on November 30. By December 13, the project name had changed to The Monster Film Project and any reference to the Care of Magical Creatures textbook had vanished.

But what is the history of Harry Potter and copyright infringement?

This latest DMCA is one of many copyright infringement cases that have been brought against Potter fan projects. Copyright law can be complicated and often involves a lot of gray areas. In Episode 17 of the podcast Reading, Writing, Rowling, lawyer Christen Church of Gentry Locke Attorneys spoke about the Harry Potter franchise’s relationship to copyright law:

J.K. Rowling, Warner Bros., and the ‘Harry Potter’ franchise have always been pretty active in making sure their intellectual property rights were enforced. We’ve seen that for a number of years.

Adding to this, Church emphasized that the reason copyright holders take action is in order to “keep control and maintain [the] value” of the brand. Where copyright can be confusing is the concept of terms of fair use and the problem of making a profit.

Terms of fair use state that there are certain situations in which copyrighted materials can be used, such as for parody or educational purposes. However, in some instances, this can be difficult to define. Additionally, Church told the podcast that while it’s not always the case, where projects are likely to fall foul of copyright infringement is when there is money to be made:

Particularly when there is ‘for-profit’ activity, we see copyright and trademark owners start to [think], ‘Let’s put the lid on this. Let’s reign things back in so that we can make sure that we’re not letting this dilution and use of this owned branding that we have to get beyond the bounds of something that we can control.’

So the question of why some fan projects are allowed to live while others are Avada Kedavra’d out of existence isn’t easy to answer. However, it is possible to take a look back at some of the previous cases and their outcomes. The following list contains examples of copyright infringement claims against three types of fan projects: films, events, and publications.

 

Fan Films: Voldemort: Origins of the Heir

 

 

One of the most recent cases of Potter copyright infringement claims was a fan-made film of the life of Tom Riddle. Similar to The Monster Film Project, Voldemort: Origins of the Heir began its life on a crowdfunding website in 2016. According to NME, the film was removed from the website after Warner Bros. cited copyright infringement. However, the film was eventually released in 2018 after conversations between Warner Bros. and the director took place. In a statement to MuggleNet, a representative from Warner Bros. revealed the company’s position on the film.

This fan film project is not endorsed by or affiliated with Warner Bros. at all. We are generally supportive of non-commercial fan activity relating to ‘Harry Potter’ whilst taking steps to preserve the integrity of these much-loved stories. That’s why we contacted the makers of this film, to ensure that they work within appropriate parameters and that it is clearly identifiable as a fan[-]created film.

In this statement, the need to protect and maintain the value of the Potter brand is clearly stated. Furthermore, according to NME and the above statement, the film was allowed to continue on the agreement that no profit would be made from the project. Therefore, although it was not official, or endorsed by Warner Bros., the release of Voldemort: Origins of the Heir was allowed to go ahead.

 

Fan Events: Chestnut Hill Wizards and Witches Festival

 

 

Another way in which Potter or Wizarding World copyright infringement is often claimed is through unauthorized fan-organized events. A recent of example of this is the Chestnut Hill fan festival in Philadelphia in the United States, which welcomed a staggering 45,000 visitors in 2017. According to the Associated Press, the festival organizers received cease and desist letters from Warner Bros. in 2018, stating that new regulations meant that the use of names, places, and objects from the Wizarding World franchise was prohibited. For Chestnut Hill, this meant that the Harry Potter Festival” had to be completely rebranded to the “Wizards and Witches Festival” and all mentions of Potter properties were removed.

In a statement to the Associated Press, Warner Bros. stated that the reason behind the cease and desist letters was to protect the Potter trademark:

Warner Bros. is always pleased to learn of the enthusiasm of ‘Harry Potter’ fans, but we are concerned, and do object, when fan gatherings become a vehicle for unauthorized commercial activity.

This statement supports Church’s explanation of trademark holders needing to protect against dilution of their brand through commercial activity. It appears that where fan events have the potential to earn a profit from the use of the Wizarding World brand, Warner Bros. is likely to take action.

Most fan projects, including the Chestnut Hill fan festival and Voldemort: Origins of the Heir, comply with Warner Bros. infringement claims and avoid entering into legal proceedings. However, there is one copyright infringement claim that did make it to court.

 

Fan Publications: The Harry Potter Lexicon

 

 

Perhaps the most well-known Potter copyright infringement claim involves the Harry Potter Lexicon. In 2007, a lawsuit was filed and a temporary injunction sought by Warner Bros. and J.K. Rowling against RDR books, which intended to publish a book of the popular website. According to the Guardian, for Rowling and Warner Bros. there appeared to be a clear distinction between a free online encyclopedia, which was considered fair use of the source material, and the publication of a book. Neil Blair, Rowling’s literary agent and founding partner of the Blair Partnership, emphasized this point to the Guardian:

There is a big difference between a free fan website, […] and a for-profit book that attempts to make money out of Ms. Rowling’s original works.

In March 2008, the claim went to court and highlighted what the Guardian then referred to as a key principle in the developing world of online fandom. Is there a material distinction between copyright of something published online and something published in print?

At the end of the court proceedings, a judge ruled that publication of the Lexicon would violate copyright. As a result, plans to publish the book were halted permanently.

 

Overall, the copyright claims above, and the most recent DCMA, show that there is still a drive from Warner Bros. to protect and maintain the value to the Harry Potter brand. As discussed in the recent episode of Reading, Writing, Rowling, there is no way to know for sure why some projects and events fall foul of copyright claims and others don’t, or even why there seems to have been an increase in action from Warner Bros. in recent years.

However, with the continued growing popularity of the Wizarding World franchise, it seems likely that we won’t be saying goodbye to copyright infringement claims anytime soon.

Lucy O'Shea

I was given a copy of Philosopher's Stone in 2001, and instantly, I was hooked. Since then, my passion for Potter has been equaled only by my passion for fair access to education (and watching motorsport). A spell I wish could exist in the Muggle world is the summoning charm because this Hufflepuff is not a "particularly good finder"!