Harry Potter and the magical world of IPR

AUTHOR: Sonal Lalwani

Semester VI

B.A., LL.B. (Hons.)National Law University, Jodhpur

The following article analyzes the success of the Harry Potter books as a case study. The author objectively interprets the monetization process of the book and how it became a global phenomenon. An honest attempt has also been made to understand the branding strategy which makes the books so profitable. The article delves into the correlation between the IP portfolio of the franchise and the almost magic-like success of the Harry Potter brand.

Key Words: Harry Potter, Trademark, Copyright, Merchandising.

The Harry Potter Mania

The world of the Harry Potter phenomenon gave unprecedented success to its creators, producers and distributors. Bloomsbury was a little known publishing house, but with Harry Potter, it became a household name and established its place as one of the premier publishing houses of the world. The Harry Potter franchise continues to be Bloomsbury’s biggest money-maker.

The Harry Potter mania created a giant space in the market for products like Harry Potter goodies, T-shirts, movies, plays, amusement parks, studio tours and enumerable kinds of Harry Potter fan-oriented merchandise.

Popular e-market retailers like The Souled Store, Redwolf and Bewakoof owe a large amount of their revenue to the sale of Harry Potter merchandise even, Amazon Kindle constantly has Harry Potter and The Philosopher’s stone listed on its top five books at its bestsellers list even after twenty-three years of its release.

The Warner Brothers made such huge profit from the first six Harry Potter films that they decided to divide the seventh book into two separate films and decided to make more films in the same universe with The Fantastic Beasts series. Thus, the impact of this series is unparalleled in the present century.

Creativity v. Marketability

Now, the question that looms before us is whether the books were really exceptional that they can be credited for providing employment to thousands of people?

Anyone who has read the series can say that they at least found the books interesting if not brilliant, but an extremely large portion of Harry Potter’s success rests on its branding and marketing strategy. It is the heavy Intellectual Property portfolio of the franchise which can be credited for making it so profitable, distinctive and magical. The Intellectual Properties associated with the series are very diverse and manifold, there is the domain name, the sound-mark and of course copyright.

The first person to use this strategy with fictional characters was Walt Disney, the strategy that he adopted is now known as Character Merchandising, what Disney did was that along with obtaining copyright protection for the beloved Mickey Mouse he also started using it as a Trademark by producing mugs, T-shirts and the like and eventually opened a whole world where Character Merchandising rules the day with Disneyland Park, California. Today, Mickey Mouse has more value as a Trademark than as a Copyright.

Character merchandising has enormous commercial importance, both from revenues generated from the direct sale of character products, as well as from royalties and the, licensing of manufacturers to sell reproductions of characters and to use names. And, that’s what was done with the fictional characters like Dobby, Hedwig and others who appear in the Harry Potter books and movies. The unique characteristics of the characters or the story are monetised as a secondary source for making money like Harry Potter’s scar, a symbol of the Deathly Hallows, the house banners etc. They can be marketed by printing them in key-chains, posters and even pyjamas.

It was a series that had a lot of potential to be commercially viable to its publishers, producers and the author, J.K. Rowling. It was so profitable that it made its author the first person to become a billionaire by writing books. Thus, it is a landmine of trademarkable symbols and phrases such as “Wingardium Leviosa”, “Expecto Patronum”, “Gryffindor” and others, it can be easily considered as an IP lawyer’s dream come true, where every time you search you can find something that can be monetised.

Harry Potter in Court

Rowling is also widely known for protecting her IP rights and has some very interesting IPR cases in her purse. The case of Allen v. Scholastic Inc. is one such case where the trustee of the late author Adrian Jacobs brought a copyright infringement case against Scholastic the U.S. publisher of Harry Potter and The Goblet of Fire for copying the basic elements of the story from The Adventures of Willy the Wizard – No 1 Livid Land where the main point of reference was a wizard participating in a competition to which the court said that,

“The standard test for the substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.'”

And, further explains that Livid Land is entirely devoid of a moral message or intellectual depth.  It does not present any overarching message or character development. The competition stands as an end in itself, and there is no purpose to Willy’s participation aside from victory. The characters never face any difficult choices, or experience any type of conflict. Their feelings are not addressed and their interpersonal relationships are not explored. Essentially, Livid Land offers only narration, not nuance.

In contrast, Goblet of Fire is 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 wizard competition clearly drives the plot and is fleshed out in great detail, but it is not, in and of itself, the primary subject of the book,” and ruled in favour of Scholastic, this case forms an excellent example of understanding copyright infringement in a highly interesting and simple manner.

India itself has quite a large number of Harry Potter related copyright cases to its name, The Delhi High Court case of Warner Bros. Entertainment Inc. and Anr. Vs. Harinder Kohli and Ors., where Warner Bros. and Rowling bring a case against Harinder Kohli for infringing the trademark “Harry Potter” with his movie “Hari Puttar – A Comedy of Terrors”. The court ruled in favour of Kohli by applying the Test of Reasonable Man and explained that,

Harry Potter films are targeted to meet the entertainment needs of an elite and exclusive audience. An audience will be able to make out difference between a film based on a Harry Potter book on the one hand and a film which is a Punjabi comedy on the other.”

The court further analyzed that, “An illiterate or semi-literate movie viewer, would never be able to relate ‘HARI PUTTAR’ with a Harry Potter film or book. Conversely, an educated person, is not likely to be misled.” The following case is detrimental in understanding the limits of IP protection for even a giant like Warner Bros. and provides a very interesting perspective about where we should draw the line while protecting our IP assets.

Fanfiction and Harry Potter

The world of Fanfiction is another arena that has been intensely scrutinized by IP experts, the questions that everyone asks are whether Fanfiction violates the copyright of the author if it is not monetized? And whether it increases the popularity of a franchise and acts as a valuable marketing strategy?

Harry Potter fandom rules the internet and the total amount of Harry Potter stories by these fan authors surpasses J.K. Rowling’s original text many times over. Fanfiction.net has around 790,000 Harry Potter alternative works, the largest amount out of all fandoms, whereas the Hugo Award-winning Archive of Our Own has around 308,425 fan-works these numbers; provide proof about the correlation between fanfiction’s role in the continued success of the franchise. Whether we arrive at sufficient answers for the above questions or not, it is important to remember that Fanfiction allows its creators to keep the spirit of the novel alive and later monetize it. It acts as platform 93/4 for fans until the Hogwarts Express arrives and takes them to a new school year. Thus, Rowling’s support to Fanfiction copyright violation by fans unlike many other authors in the other side of the debate remains one of the reasons for her continued success.

The Potion for Success

The success of the Harry Potter Franchise can be as much credited to its IP strategy as well as its author. If the IPR had not been utilized in the manner it has been, then the Harry Potter books would have remained a set of a reasonably successful book, but because of the clever use of various IP tools, it has turned into a global phenomenon that shows no sign of slowing down. Its present place in popular culture can without any shred of doubt be attributed to its excellent marketing strategy. Thus, the franchise remains a phenomenon that should be objectively studied by any student of IP to interpret, analyze and understand how by being IP savvy the Boy Who Lived became the Master of Wealth.

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