In Paul Gregory Allen (acting as trustee of Adrian Jacobs (deceased)) v Bloomsbury Publishing plc  EWHC 2560 (Ch) Mr Justice Kitchin denied a summary judgment application against claims that Harry Potter and the Goblet of Fire infringed the copyright in Willy the Wizard.
Willy the Wizard (WTW) was written by Mr Adrian Jacobs in 1987 and published in the United Kingdom by Bachman & Turner in the same year. Mr Jacobs was declared bankrupt in 1989 and died in February 1997. In 2004, the Official Receiver in Mr Jacobs’ bankruptcy assigned the copyright in WTW along with any accrued causes of action to Mr Jacobs’ son, Jonathan Jacobs. In March 2004, solicitors acting for Mr Jacobs wrote to Ms Rowling asserting that the five Harry Potter books that had then been published infringed copyright in WTW. The allegation was refuted and after three months of correspondence, the matter was not perused.
Mr Jonathan Jacobs appointed Mr Allen as trustee of Mr Jacobs’ estate, and assigned the copyright and causes of action to him. On 2 July 2008, new solicitors instructed by Mr Allen and Mr Jacobs’ estate wrote to Ms Rowling renewing the allegation of copyright infringement. While it was still asserted that the same five Harry Potter books infringed, the letter stated that Mr Allen only intended to pursue a claim in relation to Harry Potter and the Goblet of Fire (Goblet). A claim was ultimately made against Ms Rowling and Bloomsbury Publishing Plc, the publisher of Goblet in the United Kingdom.
The Defendants applied for summary judgment on the basis that Mr Allen had no real prospect of succeeding in the claim since the books were not similar save at the most generalised level and that any similarities between them had arisen by chance. Ms Rowling claimed never to have heard of WTW or Mr Jacobs prior to the publication of Goblet.
At the heart of Mr Allen’s case, however, was an allegation that in 1987, Mr Christopher Little, who became Ms Rowling’s literary agent some eight years later, was given copies of WTW and that he gave a copy to Ms Rowling before she wrote Goblet or any of the other books in the Harry Potter series.
The Alleged Similarities
Mr Allen’s case was that WTW had five main plot elements and that the same elements were the theme of and important to the plot of Goblet. These five main elements of plot architecture were as follows:
- The main characters of WTW and Goblet are wizards who are to compete in a wizard contest that they ultimately win.
- The main characters are required to deduce the exact nature of the main task.
- The main characters uncover the nature of the main task covertly in a bathroom.
- The main characters complete the main task using information gained from helpers.
- The main task for the main characters involves the rescue of human hostages imprisoned by a community of half-human, half-animal creatures.
- Off this “spine” of main elements was said to hang the ribs of the sub-plots, themes and incidents of WTW. Each of these sub-elements was also said to be found in Goblet, making a total of 27 similarities.
Access and Copying
- Mr Allen’s case on access was that Mr Little was given copies of WTW in 1987 and that Mr Little gave a copy to Ms Rowling at some point before she wrote Goblet, or any of the other of the Harry Potter books. On the evidence, the judge was not prepared to accept that Mr Allen had no real prospect of establishing that Ms Rowling did not have access to WTW as alleged and copied from it. There were inconsistencies in and issues with the Defendants’ evidence, some of which Mr Allen had not been afforded an opportunity to test. Moreover Mr Allen’s case was supported by two experts, whose evidence the judge was not prepared to discount outright.
REPRODUCTION OF A SUBSTANTIAL PART
Kitchin J was not prepared to grant summary judgment to the Defendants on the final issue, namely whether the similarities relied upon by Mr Allen amounted to a substantial part of WTW.
Applying Baigent, the judge accepted that copyright does protect the content of a literary work, including the selection, arrangement and development of facts, incidents and the like. In assessing the crucial question as to whether a substantial part had been taken, the court must have regard to all the facts of the case, including the nature and the 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.
Applying these principles, the judge considered the similarities on which Mr Allen relied constituted ideas that were relatively simple and abstract and he strongly inclined to the view that they were at such a high level of generality that they fell towards the ideas rather than the expression. However, he did not feel able at this stage to say that Mr Allen’s case was so bad that it could properly be described as fanciful. As Baigent made clear, a judgment has to be made as to where the line needs to be drawn in light of all the facts, including the degree of originality of the literary material taken and its importance to the original work. Mr Tucker’s evidence was that the similarities comprised ideas and devices that were original and unusual and constituted what he described as plots and themes of WTW. Moreover, they constituted, on Mr Allen’s case, the “spine” of five main elements and the ribs “of some 22 subelements” that ran right through WTW. While the judge had reservations about the repetition they involved, he accepted that there was a real prospect of establishing that collectively they represented the core of its architecture.