Harry Potter, Tanya Grotter, and the Copyright Derivative Work
24 Pages Posted: 23 Jul 2009
Date Written: 2006
J.K. Rowling's stories about Harry Potter and his friends are a global phenomenon. Harry’s establishment as a cultural icon, however, has created a demand for ever more exploits, in much wider cultural contexts, than his creator can supply, even if she were willing to do so. Various translations have been made in different countries adding new plot twists, with the most creatively ambitious of the Harry Potter take-offs being the Tanya Grotter stories created in Russia. These stories bear so many similarities to the original that a court in Holland recently granted an injunction against the English translation of Tanya. The court based its opinion on the similarities between Tanya and Harry, noting similar enemies, antics, and even eyeglasses.
This article considers whether these are the kind of similarities that copyright law is designed to protect against by first looking at which of the take-offs on Harry Potter are permitted under modern copyright law. The author then elaborates on which takeoffs, and under what conditions, should be permitted by a modern copyright law. The author concludes that courts should take the infringement analysis much more seriously, asking what the scope of protection is for a character like Harry Potter. When a Tanya Grotter appears on the scene, however, infringement simply should not be found. Moreover, even where the same character is used in a new story, the court should consider denying injunctive relief where the new work broadens in any meaningful way the qualitative cultural choices available to consumers. Injunctive relief should only be granted where the copyright owner demonstrates a real possibility of substantial future losses due to overexposure of the character, and should no longer be available at all after the death of the original author. And, following the lead set by moral rights protection for works of visual art, the no-injunction regime for new works based on protected characters should apply from creation in the case of works made for hire.
Keywords: Harry Potter, Tanya Grotter, Copyright Law
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