Harry Potter and the Idea/Expression Dichotomy

Amid the kerfuffle over the News of the World phone-hacking scandal, shaving foam humble pie, and wife Wendi's bodyguard skills, I almost failed to notice the latest (and hopefully last) instalment in the Willy the Wizard v Harry Potter plagiarism saga.

For those who would like to refresh their memories of the history of the case, see previous posts on the 1709 Blog here, here and here, and on the IPKat here. In short, Adrian Jacobs authored a book entitled "The Adventures of Willy the Wizard" and had it published in 1987. In 2004, his estate accused JK Rowling of having copied substantial parts of the book and using them in the first five books of her "Harry Potter" series. The claims referred especially to the fourth book, "Harry Potter and the Goblet of Fire".

Acccording to reports in, among others, the Guardian (here) and the BBC (here), the case was struck out, rather boringly, because the estate of Adrian Jacobs failed to pay the security for costs ordered by Mr Justice Kitchin and confirmed by the Court of Appeal.

If you are disappointed and keen on some idea/expression dichotomy exercise, you may still get it, and on three different levels at that:

- Level 1 ("I really don't have much time"): read the article in the Telegraph (here)

- Level 2 ("Willy the Wizard? I'm intrigued"): go to the "Willy the Wizard" homepage and have a look at the extracts from the book (here)

- Level 3 ("I only read contributions by the judiciary, thank you very much"): peruse Mr Justice Kitchin's account of similarities in Allen v Bloomsbury Publishing Plc & Anor [2010] EWHC 2560 (Ch), paras 20-47 (here). And bear in mind his statement at para 85:

"[C]opyright does protect the content of a literary work, including the selection, arrangement and development of ideas, facts, incidents and the like. In assessing the crucial question as to whether a substantial part has been taken, the court must have regard to all the facts of the case including the nature and extent of the copying; the quality and importance of what has been taken; the degree of originality of what has been taken or whether it is commonplace; and whether a substantial part of the skill and labour contributed by the author in creating the original has been appropriated."

Has Harry Potter crossed the line?

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?