With summer in its peak, it’s likely that you’ll be seeing more and more fan-based events as many of us geeks attempt to peel ourselves away from our computer screens and force ourselves to socialize face-to-face. By finding common ground through our nerdiness, it’s easier for us to meet new people and overcome that first, awkward social barrier.
Unfortunately for Harry Potter fans, however, unauthorized Harry Potter events are being shut down faster than you can say “Expelliarmus.”
The news about this broke when Philip Dawson, Chestnut Hill, Pennsylvania’s business district director, reported that Warner Brothers reached out to let him know that the town’s annual *Harry Potter *festival would have to abide by some new rules.
Last year, the festival drew a crowd of 45,000 for events such as the “Fireball 5K” and the Quidditch tournament. This year, however, Warner Brothers told Dawson that the new guidelines prohibited any unauthorized festivals’ use of names, places, or objects from the Harry**Potter series.
If you’re prohibited from immersing yourself in the magical world of Harry**Potter, is it really the same? While these new guidelines certainly put a wrench in anyone planning to hold a Harry Potter-themed event to draw crowds, it doesn’t stop festivals from being generically wizard or magic themed. Regardless of the unfortunate result for Harry Potter fans, the action definitely brings up some interesting points about trademark and copyright law- both of which Warner Brothers are attempting to protect by implementing these new guidelines.
While it may sound harsh, Warner Brothers has every right to tell Chestnut Hill (and any other town with a Harry Potter festival) to cease using the success of its intellectual property to draw people to its event.
And no, it doesn’t matter if the event is free. Warner Brothers reserves the right to control how, when, and where their intellectual property is used. This is why you don’t see Disney-themed festivals– all of that magic has to be kept inside Disney Land (so Disney can control how you are consuming its product and merchandising).
In order to understand what allows Warner Brothers can do this, you need to understand some of the law behind it.
First and foremost, it is likely that if you are a reader of this blog, you know that trademark infringement and copyright infringement are two different things.
An action for copyright infringement can arise when a third party violates one of the* exclusive rights* held by the copyright owner. Copyright gives owners the right to reproduce their creation, the right to distribute copies of the work to the public, the right to create derivative works (new works based upon the original work), the right to publicly perform the work, and the right to display the copyrighted work publicly.
In order to prove that there has been copyright infringement, the copyright owner has to prove that (1) they own the copyright in the first place (which can be proven through various different means, but is best done through providing a federal copyright registration certificate), and (2) that there has been copying of constituent elements of the work that are original (which involves proving that the other party had access to the original work and that there are probative similarities between the works).
An action for trademark infringement is a bit different. Unlike a copyrighted work, which is a creative and original piece such as the creative elements of Harry Potter and the Philosopher’s Stone, a trademark serves to identify the source of goods in the marketplace.
A trademark suit can come into play when a trademark owner can prove that a third-party’s use of a mark has created a likelihood of confusion about the source of the goods or services being provided under the use of that mark. For example, it would be trademark infringement if I started selling burgers under the name “WcDonalds.”
To make things more confusing, *Harry Potter *is both trademarked and copyrighted.
The creative elements of the Harry Potter books, such as the characters and the stories, are protected by copyright. Alternatively, Warner Brothers is also the owner of the federally registered HARRY POTTER marks for use in various marketplaces, such as clothing, books and printed goods, backpacks, jewelry, and more. Basically, Warner Brothers reserves the right to sell you (or license) almost any piece of merchandise with the HARRY POTTER written on the tag.
Of course, the internet is always asking the question of fair use. It’s reasonable to ask – why isn’t the Harry Potter festival in Chestnut Hill fair use?
The answer is simple- it’s not fair use because a court hasn’t said so. Fair use is typically a defense, which means that it doesn’t come up until an infringement suit has been filed and the ball is rolling with the court. Not only is fair use an expensive pursuit, but it can be hard to prove because of all of the different factors that a court will be considering.
When judges consider fair use, they look to: 1) the purpose and the character of the secondary use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken from the copyrighted work; and 4) the effect of the secondary use on the potential market.
So, with what information we have regarding the Harry Potter Festival, let’s consider what an analysis of fair use may look like:
- The purpose and character of the use of the Harry Potter mark and copyright in the Chestnut Hill festival is likely to be considered to be entertainment. Typically, there is a question as to whether the use of the original work is being done for public policy reasons (such as reporting on important news), or if the use is noncommercial or purely educational. While Chestnut Hills’s Harry Potter festival may be considered to be noncommercial, this is only one factor of many that may be weighed in favor of a fair use defense- depending on how Chestnut Hill as a town benefits from the **Harry Potter.
- **The nature of the original work **is creative. If the original work is creative or original, as Harry Potter is, is less likely to support a defense of fair use. Since Harry Potter and the creative elements thereof are truly fictional, this factor weighs against a finding of fair use.
- The amount of the copyrighted work utilized is another big factor here. The Chestnut Hill festival seems to be utilizing a large amount of creative aspects from the Harry Potter series such as character names and so forth. This factor would also likely weigh against a finding of fair use, especially because the whole festival is based off of the creative aspects of the **Harry Potter.
- The effect on the potential market can be a tricky one in this case, especially because we do not know much about how Warner Brothers is affected by unauthorized festivals such as this one. While the festival may make people purchase licensed Harry Potter goods and merchandise in anticipation, it may also drive people to create more unauthorized goods and host more unauthorized events. Allowing these events may also make it so consumers are less interested in going to Warner Brothers’ Harry Potter World. Unauthorized events could also be run poorly. If the event isn’t good (or if something goes wrong), that failure could be attributed to Warner Brothers and may negatively affect their brand- especially if someone is not familiar with the Harry Potter franchise and only experiences the magic through a third, unauthorized party’s interpretation of it.
While we could analyze this for days, I’m not a judge and this is not a courtroom. While there’s a chance this could be considered to be fair use, there is little existing law in place that can give us an idea of what the outcome would actually be if this ever went beyond a cease and desist letter.
Of course, the town of Chestnut Hill is going to survive. It’s decided to turn the evening into a “Wands and Wizards” night, stripping any specific mentions of Harry Potter from the festivities while keeping the magic.
With all of these protections in place on Warner Brothers’ intellectual property – specifically the long-term success of the *Harry Potter *franchise – it is no surprise that they are eager to keep up on protecting their brand. While it may seem harsh, it’s important to remember that consistent enforcement of intellectual property rights is not only beneficial to big creators, but serves to normalize and encourages protection for those who are, on a smaller scale than Warner Brothers, putting their work out there for public consumption.