Tomorrow, as most of you know… “IT ALL ENDS.” The world? Not to our knowledge. The NFL Lockout? We wish. No, no, tomorrow marks the theatrical opening of the final installment of the Harry Potter series. The premiere is, without a doubt, one of the biggest movie events of the year, possibly of the decade. The blockbuster series, based on the bestselling books, has been at the top of the box office for nearly a decade, and the books upon which they are based have delighted older readers (and awakened a love of reading in the younger generation) since the first novel, Harry Potter and the Philosopher’s Stone, was released in the United Kingdom in 1997.
In honor of the closing of such a massive chapter in pop culture history, we thought it relevant to examine how much these beloved characters can really be protected under copyright laws, both in the United States and abroad. Copyrights are exclusive rights to copy creative works, and are a form of protection provided to the authors of original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished, generally granting the owner of the copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. As many know, J.K. Rowling is actively involved in the production of the films, so it is clear that her permission was granted to take her characters and creations from the pages to the big screen. But what if we here at Wheat, No Chaff® decided to write a story based on characters that startlingly resemble, for example, Albus Dumbledore or Hermione Granger? Of course, they would be named John Wizardguy and Helen Witchington instead of Albus and Hermione. Would that be a violation of Ms. Rowling’s rights in her characters? In short… it depends.
Under United States law, expressions are copyrightable, not ideas. The expression of Albus Dumbledore and Hermione Granger within the Harry Potter books and movies are certainly protectable, but what about the idea of a wise old wizard with a long beard and a frizzy haired young female know-it all? Oftentimes, courts will look to whether or not the character is the center of the story, or whether or not the basic concept of how the proposed infringing character is used is the same as the original character (for example, whether the wise old wizard who runs a school named not Hogwarts, but perhaps the Ungainly Manor, guides a young wizard in the fight against evil, or whether the young know-it-all attempts to free tiny creatures from slavery and falls in love with a red-haired scamp), or whether the expression of the idea itself is substantially similar.
In order to analyze the copyrightability of a specific character, it is important to distinguish a specific character’s traits from the actual work itself. Legal rights in characters are not likely to be recognized for “stock” characters like the friendly but rough around the edges town bartender or the nosy neighbor, because when property rights are granted for such characters who are common to and crucial to certain types of stories, the public domain will be rapidly diminished, and authors and other creators will run out of things they can express without infringing another’s right. Incidents, characters and settings which are so indispensable or common to a given topic that they aren’t protectable, such as the bartender or the nosy neighbor described above, are generally referred to as scenes-a-faire.
On the other hand, rights in a fictional character like Harry Potter may be recognized in the United States if the character is sufficiently clearly delineated and has acquired such distinctiveness and notoriety that he or she is recognized by the public separately from the work in which they appear. In order to determine whether this has been achieved, it, as mentioned above, helps to separate the character from the works in which he is originally contained. If we put Harry Potter (or a Potter-like character) in an unfamiliar situation, can the audience predict how he will react based on the attributes given to him by Ms. Rowling? If so, that character can probably be protected under copyright law. If we put Fred Weasley into an unfamiliar situation, will he react like Fred Weasley, or maybe just generally like a mischievous and comical teenager? If it’s the latter, then Fred Weasley’s character may not be protected under United States copyright law.
International law varies in how characters are treated. Of course, Harry Potter is a British creation. In general, in the United Kingdom, according to a World Intellectual Property Organization (WIPO) report on character merchandising, merely the names of characters (like Draco Malfoy, Bellatrix Lestrange or Rubeus Hagrid) cannot fulfill the requirements enabling a work to qualify as a literary work, but in exceptional cases, it is possible that the arrangements of the attributes and description of a character embodied in an original incident may constitute a protectable “substantial part” of the work featuring the character. It seems likely, though, that such an arrangement of attributes or a description would need to go beyond simply Draco’s blonde hair, Bellatrix’s heavy-lidded eyes or Hagrid’s enormous stature and beard. By contrast, in France, according to the same WIPO report, literary characters are per se copyrightable if they possess sufficient individuality and if the character (without even using his or her name) can be immediately recognized outside of the work which supplied him with his specific attributes.
Do you think that characters should be protected under copyright law separately from the works in which they are contained? What other literary characters do you think are developed enough that they are recognized by the public separately from the work in which they appear? Have you bought your tickets and practiced your spells in time for the premiere tomorrow? Let us know in the comments.
You can find more general information about intellectual property rights at www.mchattielaw.com.
(Abigail Nickerson)