Guide Through the Legal Jungle

Keeping It Legal While Getting Your Next Harry-Potter-Fix

I admit it. I’m a Harry Potter fan (albeit perhaps not a die-hard fan). I’ve “read” all the books a la Jim Dale’s superb audiobook narration and I’ve seen four of the films and have every intention of eventually catching films nos. 5 – 7 by dvd or netflix one day soon.

Now that the final film is out, how will extreme fans get their next Harry-Potter-fix? Here are some suggestions for the fans who want to keep things legal:

Websites & Books. Fans can create websites, social media networks, and reference books that explore and expand the Harry Potter world. J.K. Rowling and Warner Brothers typically welcome most such fan creations. And even if they didn’t, the First Amendment gives all fans the right to comment on and even criticize or parody the object of their fandom.

Fan Fiction/Films. Fan fiction and fan films are potential avenues for Harry Potter fans. While much fan fiction and fan films qualify as copyright infringement, Rowling has embraced fan fiction as long as it remains non-commercial and does not push the Harry Potter world into highly objectionable directions.

The Caveat. Nevertheless, Harry Potter fans should be aware that their idolatry can go beyond legal boundaries. Fan don’ts include selling products or commercial advertising in conjunction with fan creations and inaccurately referring to their offerings as the “official, authorized versions”. Rowling did file a lawsuit against a Michigan-based publisher that planned to publish a 400-page Harry Potter compendium duplicating much of Rowling’s original writing.

A New Wrinkle in Your Use of Public Domain Materials

Using public domain materials is an option for those who want to avoid the complications of clearing rights and the expense of paying licensing fees. There are already pitfalls in determining what is and is not in the public domain although I do try to explain public domain status here in 60 seconds. A federal court in the 8th Circuit has just added a new level of complexity to the use of public domain works.

Background

In the case of Warner Brothers v. X One X Productions, X One X and Avela acquired and licensed images from The Wizard of Oz, Gone with the Wind, and several Tom & Jerry short films. The images were from the films’ publicity materials such as movie posters, lobby cards, still photographs, and press books. The publicity materials had been distributed without a proper copyright notice which at the time (1939 – 1957) was a requirement for copyright protection. Hence, while the films are still protected by copyright, the publicity materials used by X One X and Avela are now definitely in the public domain.

The Court's Do's & Dont's for Using Public Domain Materials

The problem was not that X One X and Avela used the public domain materials. The problem was how they used the materials. According to the 8th Circuit:

• It is acceptable for X One X/AVELA to reproduce in two dimensions an image from any one item of publicity materials even if X One X/AVELA used or licensed the image for use on merchandise such as shirts, lunch boxes, and playing cards.


• It is not acceptable for X One X/AVELA to combine two or more public domain images on a single item or to use a public domain image with a phrase from the book on which the film was based. According to the court, such use appropriated original elements of the film. For example, a t-shirt with a publicity shot of Judy Garland as Dorothy might include the phrase “There’s no place like home”.


• It was not acceptable for X One X/Avela to use a two-dimensional publicity shot as the model for creation of a three-dimensional image/product such as an action figure or figurine. The court reasoned that the additional details required to transform the two-dimensional image to a three-dimensional object were drawn from the films and, thus, was an infringement of original elements of the still-copyrighted films.

Observations from One Attorney Who Actually Has to Advise Clients on This Stuff

Principles underlying the court’s rejection of the second and third uses seem difficult to apply. The case also leaves some unanswered questions. For example, would it have been acceptable if the X One X/AVELA designers used details from their imaginations when creating a three-dimensional image from the two-dimensional publicity shots?

I specifically disagree with the court’s conclusion that combining a publicity shot with a phrase from the book, The Wonderful Wizard of Oz (which is in the public domain) would still be an infringement of the copyrighted film, The Wizard of Oz.

Since this is an 8th circuit decision so it is only binding within the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South D akota), so we’ll have to see if any courts outside the 8th circuit follow it. You can read the full Warner Brothers v. X One X Productions decision here.

Here’s the take-away message from this case for those who want to use public domain materials. If the public domain materials are associated with a work still under copyright protection, copyright infringement is a potential risk if you stray from an exact reproduction of the public domain work.