July 15, 2010 11:39 AM

Harry Potter and the Curse of IP Litigation

Posted by Zach Lowe

It is, we suppose, the price of an author attaining unmatched popularity: There will be many, many intellectual property battles to fight. After winning a landmark fair use case in 2008, Harry Potter author J.K. Rowling has another IP headache to deal with, according to The National Law Journal, one of our sibling publications. 

Andrews Kurth is representing the trustee for a late British author who claims Rowling stole key plot points for "Harry Potter and the Goblet of Fire," the fourth of seven Potter books, from a prior work published in 1987 in the U.K., the NLJ reports. (Andrews Kurth partners Joseph Patella, Thomas Kline and Michele Schwartz appear on the docket.) Adrian Jacobs, the author of "The Adventures of Willy the Wizard," passed away in 1997, three years before Scholastic Inc. published "Goblet" in the U.S. Jacobs's estate has already sued Rowling and the British publishers of "Goblet" in the U.K., but on Tuesday the estate and its lawyers filed suit against Scholastic in federal district court in Manhattan. 

Rowling has claimed she never read "Willy," and Scholastic released a statement Wednesday saying the suit is without merit, the NLJ reports.

According to the suit, "Willy" is centered around a yearlong tournament competition among schoolboy wizards in which the contestants had to parse clues and, in one task, rescue "hostages imprisoned by a community of half-human, half-animal creatures." The plot of "Goblet" centers on Harry's participation in the Tri-Wizard tournament, which features a task in which he has to rescue a friend held underwater by sea creatures. Both Willy and Harry emerge as tournament winners, and both figure out a key clue during a trip to a bathroom, the complaint states, according to the NLJ. (Potterphiles, of which we are one, will remember that Harry's bathroom epiphany comes with help from Moaning Myrtle.)

The suit seeks profits from "Goblet" sales, an order banning future sales, and the destruction of all copies of the book still in Scholastic's possession, the NLJ says.

This is not Rowling's first IP litigation go-round outside the U.K., of course. She relied on Dale Cendali (then at O'Melveny & Myers, now at Kirkland & Ellis) to successfully stop the U.S. publication of a lexicon of Harry Potter facts in 2008 on the grounds that the Potter encyclopedia did not fall under fair use protections. And Warner Bros., which owns part of the "Potter" movie rights, tried and failed to stop an Indian production company from releasing a Bollywood comedy called "Hari Puttar: A Comedy of Terrors." 

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