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IP/Entertainment Case Law Updates

Allen v. Scholastic Inc.

Court grants defendant publisher’s motion to dismiss copyright infringement claim filed by author of book about wizards, holding there is no substantial similarity between plaintiff’s book and Harry Potter and the Goblet of Fire.

Adrian Jacobs wrote a book called The Adventures of Willy the Wizard – No. 1 Livid Land, which was published in the UK in 1987. Livid Land is a 16-page illustrated children’s book about an adult wizard who wins a competition with the assistance of apprentices and elves.

Plaintiff, as trustee of Jacobs’s estate, filed a copyright infringement claim against Scholastic, publisher of Harry Potter and the Goblet of Fire, the fourth book in the popular series about wizards written by J.K. Rowling. Goblet of Fire is 734 pages long and chronicles Harry’s participation in a tournament between rival magic schools when he is fourteen years old.

Scholastic moved to dismiss the complaint, asserting that there is no substantial similarity between the two works. The court agreed.

The court conducted the “ordinary observer” test which asks whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” The court explained that where the allegedly infringing work contains both protectible and non-protectible elements, the usual “ordinary observer” test becomes more discerning, and requires the court to attempt to extract the unprotectible elements from consideration and ask whether the protectible elements, standing alone, are substantially similar.

For purposes of the motion to dismiss, the defendant conceded that the plaintiff has a valid copyright in Livid Land and that actual copying occurred. “The operative question is thus whether a substantial similarity exists between Goblet of Fire and the protectible elements of Livid Land.”

Applying the “ordinary observer test” to the protectible elements in each book, the court compared the total concept and feel, theme, characters, plot, sequence, pace and setting of the works. The court held that, because the works at issue are primarily created for children, the total concept and feel of the works - rather than their plot and character development - is the most important factor for purposes of establishing copyright infringement. According to the court, “the contrast between the total concept and feel of the works is so stark that any serious comparison of the two strains credulity.”

The court described Livid Land as “a series of fragmented and often tangential scenes, each of which summarily recounts Willy’s various exploits without any supporting detail, contextual explanation, or suspenseful build-up.” By contrast, it described the Goblet of Fire as a “a cumulative work, in which one scene builds upon and transitions to another. The storyline is highly developed and complex, and captures the attention of both children and adults for long periods of time. . . . The text is rich in imagery, emotive and suspenseful. Sophisticated literary devices, such as foreshadowing, are frequently employed.”

The court went on to compare theme, characters, plot, sequence, pace and setting of the works, and concluded that there is no substantial similarity between any of these elements.

Regarding theme, the court stated that “Livid Land is entirely devoid of a moral message or intellectual depth. It does not present any overarching message or character development. . . . The characters never face any difficult choices, or experience any type of conflict.” By contrast, the court found that Goblet of Fire “has a highly developed moral core, and conveys overarching messages through its plot. Indeed, the book’s characters are frequently subject to ethical scrutiny. The choices that they make are often difficult and marked by clear trade-offs, which are explored and elaborated upon.”

Regarding character, the court said that “it is unlikely that a rudimentary character like Willy can be infringed upon at all. Livid Land provides only a few details about Willy, such as where he lives and what he does, but does not imbue him with a discernible personality or distinguishable appearance. . . . Willy is but a bland and interchangeable medium through which a story is told, instead of a purposeful and deliberate actor. Because Willy’s character does not display any creativity, it does not constitute protectible expression.”

Regarding plot and sequence, both works tell the story of a wizard competition. Both works also involve a protagonist wizard who takes part in and ultimately wins a competition. However the court discerned “no similarities beyond this level of abstraction.”

The court concluded that there is no substantial similarity between the total concept and feel, theme, characters, plot, sequence, pace and setting of the works, and granted the defendant’s motion to dismiss.

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