In which Harry Potter encounters his most dangerous nemesis yet: Copyright Infringers!

EXPECTO INFRINGUM!!

Foolish muggles.  You know what happens when you get into a lawsuit with JK Rowling, author of the immensely popular Harry Potter book series?  You suffer an abject, ignominious defeat.  And, if you press the case too hard, you are so thoroughly obliterated that you may only be identified by dental records or traces of your DNA.  Why?  Because Rowling’s richer than the Queen of England, that’s why.  Free legal advice: David only defeats Goliath in court if everyone hates Goliath (like Exxon, BP, and Enron).  Or maybe if Erin Brockovich digs up some compromising dirt. 

Her Majesty

Yet, Vernon, Dudley, and countless other Dursleys keep trying it on or, worse, subjecting themselves to the wrath of Britain’s Wealthiest Woman.  Since we first met Harry & co. in 1997, Rowling and her publishers have defended against countless plagiarism, copyright and trademark lawsuits, libel actions, and at least one blackmail attempt.  Jo (as she likes me to call her) has also gone after a hoard of hapless squibs around the world for attempting to publish unauthorized derivative works.  A couple of these are so audacious it’s hilarious – the Russian Tanya Grotter and the Indian Hari Puttar come to mind.  But do the rip-off artists ever prevail?  Never.  Here’s how much power we’re talking about: In 2005, a Canadian bookstore inadvertently sold copies of the sixth book in the series, Harry Potter and the Half-Blood Prince, before its official release date.  Rowling’s Canadian publisher got the Supreme Court of British Columbia to enjoin the innocent Canucks that bought the books from reading them.  Think about it: the high court of the land precludes book buyers from reading books they bought until a particular date!  In other words, Rowling introduced the Petrificus Totalus spell to Canadian copyright law.

Despite the fearsome omnipotence and bottomless fortune of her empire, widespread and public infringement of Rowling’s copyrights are arguably being perpetrated on an ongoing basis, by large and organized groups, outside in broad daylight!  I’m talking, of course, about QUIDDITCH.  Get down:

[youtube id=”bypVpDKkHbo” width=”600″ height=”350″]

The athletes in the video are playing ‘Muggle Quidditch’, based on the most popular sport in Rowling’s wizarding world.  Like the fictional game, Muggle Quidditch is coed and seven a side.  As in the books, you’ve got your seeker, your keeper, two beaters and three chasers.  There are also three hoops to score through at each end of the pitch, as well as the ‘quaffle’ (a deflated volleyball) and ‘bludgers’ (dodgeballs).  Muggles can’t fly, so they must run with a broom between their legs during the match.  There’s a golden snitch, too, although it’s not an enchanted flying gizmo.  Rather, the snitch is just a humble tennis ball stuffed in a sock and tucked into the waistband of a speedy runner dressed in gold, like my flash boy here. 

Though Muggle Quidditch started out as an intramural goof at Middlebury College in Vermont, it’s grown into a highly organized competitive sport.  The International Quidditch Association governs roughly 1000 teams (600 in the U.S.), and has held a World Cup every year since 2007.  Peep their snappy logo at right.  The current top five ranked IQA member teams are: Ball State University, Univ. of Miami, Univ. of Texas Austin, Univ. of Maryland and UCLA.  Quidditch is represented in 45 states, with American teams split into five regions: Northeast, Southeast, Midwest, Southwest, and West.  Other countries with teams or leagues that play by IQA rules include Canada, Mexico, Brazil, Colombia, Peru, France, Germany, the UK, India, South Korea, Australia, and New Zealand.  It’s a big honkin’ deal and it’s happening everywhere.

Quidditch is not a minor pastime mentioned in passing in Rowling’s series.  It’s prominently featured in every single book; most notably in Harry Potter and the Goblet of Fire, in which our intrepid Gryffindors attend a World Cup match between Ireland and Bulgaria.  In addition, Rowling (under the pseudonym ‘Kennilworthy Whisp’) wrote Quidditch Through The Ages, purportedly a volume from the Hogwarts library.  This short tome, the proceeds from which Rowling donated to charity, describes the evolution of the game from its inception.  ‘Whisp’ not only discusses the pitch, equipment, referees, and rules in place “since the Fourteenth Century,” but also provides a thorough account of the advent of the snitch, “anti-muggle precautions,” the development of the “racing broom,” and biographies of notable teams and players.  In short, Quidditch is a fully-formed, historical institution in Rowling’s universe – as important to the wizarding world as NASCAR is to rednecks.  An original work of magical fiction if there ever was one.

The Copyright Act defines a copyrightable work as “an original work of authorship fixed in a tangible medium of expression.”  Like novels, say.  The Act further provides that a copyright holder is allowed to control when the work is performed “publicly.”  A performance is considered “public” when the work is performed in a “place open to the public or at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered.”  We know that Muggle Quidditch is wholly based on Rowling’s original work.  It includes each possible element – teams, hoops, balls, snitch, brooms – and takes place outdoors before spectators.  So why hasn’t JK got all Voldemort and descended to bring the broom-happy hoards to their knees?  Doesn’t Muggle Quidditch constitute copyright infringement?  Maybe not.  The Copyright Office explains:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it.  Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game.  Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.  Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

In plain English, the important distinction that’s keeping Muggle Quidditch athletes out of Azkaban is that they’re playing the game, not performing it.  The teams that compete in IQA matches are not reenacting scenes from Rowling’s books.  If the players were simply acting out Quidditch matches between the Hogwarts houses, it would be an unauthorized public performance of Rowling’s work that would constitute infringement.  But that’s not what Muggle Quidditch is about.  Like any sport, the contestants are trying to win the game, not dramatize a fictional event.  

Since The Wizarding World of Harry Potter theme park opened in Orlando in 2010, you can pick up a replica quaffle.  But, trying to score by flinging it through a hoop wouldn’t magically transform the ball from playing gear into a stage prop.  (Besides, you’d have to go to Florida to get one and they have cannibals there now, you know.)  Warner Bros. also sells a vault’s worth of HP merch but very little in the way Quidditch gear.  They offer only a kids’ kit, a helmet and goggles – obviously costumes and not actual athletic gear.  

 

Naturally, merchandise is available for Muggle Quidditch, too.  Here’s the official kit of our national squad from the IQA store (yes, we have a national squad).

Does the sale of these items change our inquiry?  Probably not.  Since the Copyright Office advises that the name of game is not copyrightable, teams are free to feature ‘Quidditch’ and the IQA logo prominently on their uniforms.   If, however, the muggle merchandise did feature images or logos belonging to Rowling there might be a claim for trademark infringement or for interfering with the licensing rights of her publisher and studio.  For these reasons, the muggle teams don’t wear anything that specifically refers to Rowling’s books.  Instead, they usually wear their own school colors rather than Slytherin green and silver or Hufflepuff yellow and black (although you’ll see some jerseys slyly numbered 9¾).  Moreover, the IQA is a registered non-profit organization, so no one’s making a buck off Rowling’ imaginary game, or compromising the charitable opportunities generated by her wildly popular series.  

Jo hasn’t told me how she feels about Muggle Quidditch and I’ve never seen her mention it in the press.  Since she’s not losing any cash perhaps she doesn’t mind it, or is even amused about the whole thing.  Just don’t get any ideas about peddling your own line of Nimbus 2000s or Firebolts – then only really powerful magic could protect you.

 


 

[This post is lovingly dedicated to the Headmistress, the World’s Greatest Seeker, and the Brightest Witch of her age…and everyone else that can name their patronus without having to think about it.]

 

About the Author

Jonny Balfus

I was supposed to be a rock star but, through no fault of my own, ended up an intellectual property lawyer in Los Angeles. I'm not saying that's your fault, but I'm not not saying it, if you know what I mean.

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