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Harry Potter has a problem. He is one of the most popular fictional figures of all time, and knockoffs and ripoffs are everywhere. To protect their works, author J.K. Rowling, her publishers and other rights holders like the Warner Bros. Movie studio have taken aggressive legal action across the globe, with varying degrees of success. The Harry Potter book series has sold more than 120 million copies in over 40 languages, and the two Harry Potter films have swept box offices throughout the world. Long before the fifth installment of the book series hit bookstores in June, it was already at the top of the Amazon.com bestseller list. While the world waited for the fifth installment, books purporting to be the fifth, sixth and even the finale of the Harry Potter series were already available in China. Last fall, a raid by the Chinese authorities turned up fake Harry Potter books — “Poor Dad, Rich Dad and Harry Potter” and “Chinese Emperor and Harry Potter,” among others — produced by a publisher in the city of Chengdu. Once the books were discovered, the publisher quickly settled the dispute, agreeing to pay a $2,500 fine and publish an apology in China’s Legal Times. Settlement hasn’t come so quickly in another recent Harry Potter dispute in Russia. Last November Rowling’s publisher sent a cease-and-desist letter to the Russian publisher of a series of books featuring a character named Tanya Grotter, alleging copyright infringement. Like the Harry Potter books, the Grotter series concerns a young orphan living in a magical world. Unlike Potter, however, Grotter is a girl and attends the Abracadabra School for Young Witches. Instead of a broomstick, she rides a double bass. In their defense, the Russian author and publisher claimed that the Grotter series was a parody and thus was fair use. Admitting that their books were inspired by the Potter series, they noted that the Grotter books had drawn heavily on Russian culture and folklore and had incorporated elements commonly found in children’s books, which, they claimed, Rowling herself had used. Despite the legal threats, the first two books in the Grotter series, “Tanya Grotter and the Magic Double Bass” and “Tanya Grotter and the Vanishing Floor,” have sold more than 170,000 copies. The series also inspired two new radio programs. Two more books are in the works. The Russian publisher is negotiating to have the series published abroad. Rowling and her publisher are considering filing a lawsuit in Russia. The dispute shares some similarities with the recent litigation over “The Wind Done Gone,” Alice Randall’s version of “Gone with the Wind.” In that case, the copyright holder � the estate of Margaret Mitchell, who authored “Gone with the Wind” � claimed infringement, while Randall and her publisher claimed parody. After the estate failed to obtain an injunction, the parties eventually settled the case. In the Grotter situation, however, the outcome of potential litigation could be very different � even without taking the intricate differences between Russian and U.S. copyright laws into account. A key argument in the Mitchell case was that “Gone with the Wind” had become nothing less than a cultural icon that had been around for many years. As a result, the court was sympathetic to the defendant, who had a strong fair use argument. The fair use argument in the Grotter dispute is weaker. Despite the popularity of the Harry Potter books, they are not classics in the same sense as “Gone with the Wind.” Indeed, the Grotter books would likely be considered infringing under existing U.S. copyright law. After all, the more popular a work, the greater financial damage and the less likely the court will find fair use. Distinguishing fair use from infringement has never been easy. For example, the Russian copyright holder of the Harry Potter series decided not to sue the authors of “Porry Hatter and the Stone Philosopher,” a novel describing a child with no magical powers who lives among magicians and has to use technology to survive. According to the Russian rights holder, “‘Porry Hatter’ is a real parody created according to all canons of the parody genre.” Warner Bros., for its part, learned that litigation is not always the wisest course of action. In December 2000, the studio threatened to sue a 15-year-old English schoolgirl who had created a Web site called www.harrypotterguide.co.uk. The resulting publicity nightmare is now referred to by some as the “Potter war.” The studio eventually backed down after the girl and others organized a protest boycott of Harry Potter merchandise through yet another Web site. Warner Bros. now tries to bring these fan sites into the fold rather than antagonize them. The studio has created a “Webmaster Community” page on its official site, allowing fans to enroll their unofficial sites and download official banners, shields and seals. Peter K. Yu is an acting assistant professor at Yeshiva University’s Benjamin Cardozo School of Law in New York City. In the fall he will become the founding director of the intellectual property and communications law program at Michigan State University’s law school. His email address is [email protected] .

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