Harry Potter in New Hampshire

A curious story came to light last week, that of a film studio exerting influence over the design of a curriculum. Warner Brothers took issue with an English course, prepared by the University of New Hampshire and offered this past summer to children, titled “Harry Potter as Storytelling: An Online Adventure for the Young Fan.” Most coverage of the story emphasizes that Warner Brothers was concerned that people would think the studio had sponsored the course. However, the cease and desist letter, courtesy of Michael Brindley writing for New Hampshire News, shows a decidedly more strident tone than that of concern:

Warner Bros. is the exclusive owner of all trademark rights, and certain other intellectual property rights in and to all elements contained in the best selling series of “Harry Potter” books and popular motion pictures, including, but not limited to, “Harry Potter and the Sorcerer’s Stone,” “Harry Potter and the Half-Blood Prince,” and “Harry Potter and the Deathly Hallows” (hereinafter, collectively, the “HARRY POTTER Properties”). Because of these rights, no one may utilize the HARRY POTTER Properties without the express written permission of Warner Bros.

(Of course, the last sentence is patently false; fair use and fair dealing expressly permit some unauthorized uses of any copyrighted work, including the HARRY POTTER Properties.)

What is striking about the letter is its lack of precise detail. While rushing to claim its trademark rights and “certain other intellectual property rights”, Warner Brothers only goes so far as to state that words and concepts were used in the course. The studio does not explain how this is a violation of any intellectual property right:

[The] course is entirely themed around the HARRY POTTER Properties and makes extensive use of them for commercial and marketing purposes. For example, each of your five classes mimics the fictional classes taught at Hogwarts School of Wizardry as expressed in the HARRY POTTER books and motion pictures. In addition, there are “magical areas” (e.g. Azkaban, Honeydukes, etc.) which are derived from protected elements of the HARRY POTTER Properties. Other elements of Hogwarts are used, such as “prefects,” and school houses, etc., all of which are obviously designed to mimic an experience in the fictional world of Hogwarts. Moreover, the website uses trademarks owned by Warner Bros. to promote the course. These include the name “Hogwarts,” “Harry Potter,” and depictions of the lightning bolt and glasses – all derived from and associated with the HARRY POTTER Properties.

Intellectual property rights are contingent upon the nature of the use made of the claimed property. It is not enough for any intellectual property claimant to merely state that something was used. How it was used and why it was used are germane to the claim of right. And it is not at all clear what portion of law would actually support most of Warner Brothers’ objections.

To suggest that anyone can, or should, control the use of the word “prefect”, or the use of the idea of school houses, is audacious. There is no basis in law to claim rights to a common word or concept. Besides, the terminology and concept have been in popular use since English boarding schools were created; even today, among the private schools that cater to children of the Empire, we still hear of prefects and school houses.

Continuing to review the listed complaints, the objection to mimicry is bizarre. Invoking fictional settings with role playing is a time-honoured pleasure for children, and a highly-regarded method of teaching. Getting into the skin of a character is a means to the better understanding of character development. For such mimicry to be effective, explicit references to characters and events are not only appropriate, they are necessary. For such mimicry to be a violation of law, the law would have to require that explicit reproduction of specific words is the sole basis upon which rights are awarded. That is hardly true. As I have written many times, copyright law permits unauthorized reproduction of protected works, depending on the context. So too, does trademark law.

Warner Brothers makes the claim that their trademarks were violated in the marketing of the course. They objected to the use of: “Hogwarts,” “Harry Potter,” and, “depictions of the lightning bolt and glasses”. Without seeing all the original marketing materials, it is not possible to accurately state whether a trademark violation occurred or not. Nevertheless, the law and contemporary discussion* offer some clues.

According to the Legal Information Institute at Cornell University, a trademark is:

any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.

However, control over a trademark is not absolute. Trademark law has its own limits. This situation calls for consideration of the legal doctrine of nominative fair use which allows for use of a trademark when the purpose is to refer to that product. A course about Harry Potter will naturally require the use of the words “Harry” and “Potter” in both its title and course description. And if the course is intended to simulate the schooling experience, using “Hogwarts” would seem not unreasonable.

As to whether the lightning bolt and glasses were necessary, more information is needed. But, interestingly enough, the library at the University of Texas has a timeline of trademark history, accompanied by illustrations, and indicates that lightning bolts were used in the 1930s as signs of modernity and power. Which leads one to wonder if Warner Brothers and J.K. Rowling sought permission for using said lightning bolt in their creations.

Like fair use in copyright law, limits upon trademark control are a grey area; each situation must be evaluated on its own merits. This flexibility is important to maintain the flexibility that is inherent to all creative endeavor. It is worth noting that while the principal of trademark rights is to avoid confusion to consumers, courts have tolerated modest confusion depending on the circumstances. In this case, if the title of the summer-school course invites momentary confusion that Warner Brothers is actually getting into the education business, a simple disclaimer in the course outline would alleviate that confusion.

Returning to the University of New Hampshire, their response to Warner Brothers appears to be one of capitulation; without admitting wrong-doing, they have set out to:

… remove all uses and references that could be interpreted as improper from content and title. The course will still include the Harry Potter novels as part of the curriculum literature for the course’s educational purposes, but will no longer reference, mimic, or emulate the Harry Potter properties. (Emphasis mine.)

This is disappointing, as Warner Brothers’ objections appear more mischievous than legitimate.

* Some interesting reading

Trademark Law and Theory: A Handbook of Contemporary Research, edited by Graeme B. Dinwoodie, Mark D. Janis (Edward Elgar, 2008).  Nominative fair use is discussed in detail; i.e., “… occurs when the defendant designates its product source using a third-party trademark for its referential meaning (p.426).”

Further discussion of trademark law is available from William McGeveran, “The Trademark Fair Use Reform Act,” Boston University Law Review (2010). McGeveran draws attention to the challenges for free speech wrought by aggressive, and sometimes groundless, claims of trademark ownership. His initial words are disturbing:

[Some] lawyers charged with policing their clients’ trademark portfolios now send threatening “cease and desist” letters (C&Ds) as a routine response to virtually any unauthorized use of a mark. In addition to deterring the individual recipients, these legal threats also serve a broader signaling function by warning against all unauthorized uses of a mark (p.2273).

McGeveran remarks that it is “the risk of litigation, not the risk of liability,” that compels would-be defendants to adopt risk-averse policies (p.2276). Together with his own proposal to ameliorate this chilling effect, he presents a comprehensive literature review of other proposals for change (see footnotes 5-10, p.2270)).