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"Harry Potter and the Court Battle Over Creativity"by David D. Kirkpatrick ("New York Times," April 1, 2001) |
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Nancy Stouffer was a homemaker living a quiet life in Camp Hill, Pa., until two years ago, when she heard about J. K. Rowling's novel "Harry Potter and the Sorcerer's Stone."
As soon as she read it, Mrs. Stouffer said last week, "I realized there was big trouble here." Mrs. Stouffer herself had pursued a quixotic career writing children's picture books - one that included a bespectacled boy named Larry Potter and another that, like Ms. Rowling's book, was populated by characters called "muggles." Mrs. Stouffer said she was sure that she recognized several crucial elements from her own work. Although both Potters are skinny and bespectacled, their public profiles could not be more different. Ms. Rowling's Potter is familiar to more than 40 million people who have read her books in the United States alone, while Mrs. Stouffer's books were so obscure that until recently she could not locate any copies. But with a few phone calls, Mrs. Stouffer was on her way to joining a growing parade of aggrieved writers and artists who have helped to turn intellectual property litigation into a burgeoning cottage industry, with its own small plaintiffs bar and even insurance policies to protect successful writers and musicians from the high cost of fending off claims. Blockbuster books, movies, plays and songs have always provoked anger and legal actions on the part of little-known artists who say their work has been usurped. The vast majority of lawsuits are as improbable as one New York designer's unsuccessful claim that the best-selling "Goosebumps" series of children's books stole a graphic he designed for the Lithuanian basketball team. But hope springs eternal because of the occasional legal upset, like the Detroit teacher who last month won a $19 million verdict that a film studio stole his screenplay to make an Arnold Schwarzenegger film. Legal challenges filed by the famous and the little-known alike over the originality of creative works have proliferated steadily over the last 20 years, partly because of the soaring value of intellectual property in a media-saturated culture. "These cases are more intense and more frequently encountered these days than in the past, driven by the increasing appetite on the part of all kinds of people for intellectual property protection," said David Lange, a professor at the Duke University School of Law. Legal scholars say the boom in intellectual property lawsuits began with the advent of television, which added new lives to popular stories and characters. They might appear first in a book, then in a film, and eventually in perpetuity on the networks, cable and video tape. "As technology has expanded the ways you can exploit intellectual property, it has added more and more value," said Joseph Beard, a professor at the St. John's University School of Law. But the line between a new work and a knockoff can be hazy. At heart, copyright law requires judges to balance the protection of artists' intellectual property against society's interest in freedom of expression. Courts must weigh nuanced considerations like the degree of similarity between two stories or tunes. Some cases turn on questions of a defendant's creative or commercial intent, or the likelihood that one work might steal sales from another. The first point raised in Mrs. Stouffer's lawsuit is the purported resemblance between Larry and Harry. To prove copyright infringement, Mrs. Stouffer's lawyers need to show that Ms. Rowling, who lives in Scotland, had a chance to read Mrs. Stouffer's books, which were self- published in the United States in the 1980's, received limited distribution and quickly went out of print. Mrs. Stouffer bases her assertion on a comparison between some pictures of Harry Potter and her own drawing of Larry. Larry Potter lacks Harry Potter's most distinctive features - tape on his glasses, a lightning- shaped scar on his forehead and a knack for magic. Deliberate appropriation can raise deeper issues. In May, for example, Houghton Mifflin is planning to publish a novel called "The Wind Done Gone," by Alice Randall, that revisits the plantation setting of Margaret Mitchell's novel "Gone With the Wind" from the perspective of a slave. The new novel's narrator, Cynara, is the half-sister of Mitchell's heroine, Scarlett O'Hara, and the daughter of her servant, Mammy. The novel borrows plot lines, scenes, characters, and even images and phrases - for the purpose of criticizing the original, according to its publisher. Last week, the owner of the copyright to "Gone With the Wind," a trust set up for Mitchell's heirs, asked a federal judge in Atlanta for an injunction to halt the book's publication, calling it "a blatant and wholesale theft of `Gone With the Wind.' " The trust has earned millions in licensing fees from a sequel to the book and a film version of it, and the trust's lawyers argue an unauthorized spinoff threatens its future fees. Some intellectual property scholars say that "The Wind Done Gone" has the makings of a legal landmark because it raises in unusually stark terms the inherent conflict between intellectual property rights and freedom of expression. Retelling parts of "Gone With the Wind" from the vantage point of a slave is morally and politically appealing, but it may also violate the Mitchell trust's rights. For example, the trust may choose to license its own retelling of the story from a slave's perspective. In 1994, the Supreme Court considered for the first time the question of whether copyright law permits "parody." The owners of the copyright to Roy Orbison's song "Oh, Pretty Woman" filed suit over a recording by the rap group 2 Live Crew that incorporated elements of the song. Justice David Souter concluded that the group's bawdy rendition "can be taken as a comment on the naïveté of the original of an earlier day." But the court stopped short of determining how "transformative" a parody must be to qualify as new. The legal limits of literary borrowing become even more complicated when stories and characters leap off the printed page and onto the silver screen or the toy store shelf. Mrs. Stouffer, for example, also accuses Ms. Rowling of trademark infringement for selling toys and tchotchkes under the name "muggles." Mrs. Stouffer's lawyers do not contend that Ms. Rowling plagiarized the term "muggles." The use of the term antedates both authors - it was slang for marijuana and appeared in a Louis Armstrong song, among other places. And Mrs. Stouffer's "muggles" were short, hairless, quasihuman mutants, but Ms. Rowling's are just regular people who lack magical powers. Instead, Mrs. Stouffer's lawyers argue the phenomenal popularity of Ms. Rowling's books will interfere with her ability to sell her own "muggles" merchandise. In court papers, Ms. Stouffer's lawyers say she has tried for years to sell magnets, pajamas and other paraphernalia based on her own "muggles" at trade shows and elsewhere. But now the term "muggle" has become a hallmark of Ms. Rowling's books. Mrs. Stouffer's lawyers claim Ms. Rowling has effectively ruined Mrs. Stouffer's trademark. In response, lawyers for Ms. Rowling and Scholastic argue that few people ever bought Ms. Stouffer's "muggles" products or books, especially not after her books went out of print for the last time in 1991. She registered her trademark for the first time last year. Lawsuits like Ms. Stouffer's have become so common that in 1999 the British insurance brokerage firm Robertson Taylor created a policy specifically for famous musicians, to cover costs incurred defending against copyright suits. Many insurers in the United States offer similar policies, although not specifically tailored to the needs of rock stars. Sometimes just filing a case can bring its own rewards. Last month Mrs. Stouffer finally found a publisher for her books, Ottenheimer Publishers, a small company based in Baltimore. Her new publisher is making as much as it can out of the resemblance between Mrs. Stouffer's books and Ms. Rowling's. The cover of Mrs. Stouffer's book "The Legend of Rah and the Muggles" previously depicted her miniature mutants, with the word "muggles" in small print. This time, the word "Muggles" appears in large type against the backdrop of a castle reminiscent of the one on Mrs. Rowling's books. Her character Larry Potter previously played a supporting role in a series of magazine-size booklets starring his cousin, Lilly. But now he is front and center on the cover of Mrs. Stouffer's new hardcover book, "Larry Potter and His Best Friend Lilly." And the author's name has been changed, too, from "Nancy Stouffer" to "N. K. Stouffer." |
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