Many of our readers will recall that our intrepid IP Whiteboard team recently purchased Willy the Wizard: No 1 Livid Land. The book is the centrepiece of another copyright action which J K Rowling must defend.
As a brief recap, Adrian Jacobs, the author of Willy the Wizard, published his story in 1987 and died in the early 1990s. His estate brought the claim almost 20 years after the author’s death. The claim concerns the fourth of J K Rowling’s Harry Potter books, Harry Potter and the Goblet of Fire. Interestingly, the Australian publicist, Max Markson, is acting for the Estate in the case (recently in the public eye through his representation of Lara Bingle). Mr Markson was reported by The Guardian in February 2010 as saying that this was a “billion-dollar case” and “[w]e believe that she [Rowling] personally plagiarised the Willy the Wizard book. All of Willy the Wizard is in the Goblet of Fire“.
However, rather than relying on third party reports, we thought we’d investigate the merits of this claim ourselves. Here’s what we think.
Willy the Wizard is a 16-page book describing a few adventures, loosely linked, of a wizard. Put generously, it’s a difficult read. The book is about wizards. That’s a similarity. But the protagonists have different names (Willy/Harry). A nil-all draw so far.
The fact that Willy the Wizard is 16 pages, and the Goblet of Fire is 636 pages, is not strictly relevant, as those familiar with the recent Men at Work case will know. However, given that the Goblet of Fire is such an epic read, we think it points against copying unless strong objective similarity can be shown between the two works.
However, we couldn’t find Willy the Wizard in the Goblet of Fire. In fact, but for the use of the occasional concept or idea common to the genre (wizards in a competition, wizards on trains, wizards playing chess, the use of a portal to go from one world to another), we could find absolutely nothing resembling Willy the Wizard at all in the J K Rowling work. And believe us. We searched!
The plaintiffs apparently point to the above matters as proof of plagiarism, and add that both protagonists won their respective wizard contests by thinking of the solution in a bathroom, assisted by clues from helpers to rescue human hostages imprisoned by a community of half-human, half-animal fantasy creatures.
Let’s test this for a minute. First, ideas and concepts are not protectable under copyright law. It is the expression of those ideas that matters. Therefore, in assessing the literary work, one must determine whether the text of the allegedly infringing work is objectively similar (or not) to the work in suit. Harry Potter fans, therefore, who recall fondly the Hogwart’s Express, the “gleaming scarlet steam engine” integral to the books, will sense no familiarity from the brief reference to “Cloud 84” in Willy the Wizard, a “pullman-like” train made of see-through platinum for chess players.
Likewise, “the second task” in the Goblet of Fire (which seems to be the area of primary complaint) involves Harry going to the Prefects’ bathroom (“It was softly lit by a splendid candle-filled chandelier, and everything was made of white marble, including what looked like an empty rectangular swimming pool sunk into the middle of the floor”) to try and work out the secret of the golden egg. Contrast that to Willy, who “sat in his bath”. It was in his “yellow bathroom-cum-study” that he was able to use a glorified TV set to find out the next wizard’s challenge. These scenes could not be more different. The fact that each is a “bathroom” is unlikely to be regarded as sufficient when examining the text.
The stories which then unfold are entirely distinct tales. The “second task” in Goblet of Fire involves help from Mad Myrtle, mermaids and mermen, and Harry saving his friends to gain points in the Triwizard Tournament. In Willy the Wizard, the story has an Australian flavour. “Kanganatives” populate Livid Land, mining gold dust from a Kangamine which is then conveyed to the Papua Mainland by swift silent canoes paddled by young (sigh) “Kangamaidens”. The story ends with Willy winning the wizard’s test after the “ladies” (read: female prisoners) have been freed.
To conclude, it’s a very long bow to think that this case will succeed. It’s also relevant to ask, if J K Rowling thought Willy the Wizard was worth copying, why did she wait until her fourth book in the series before referencing it?
