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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, “Harry Potter” author J.K. Rowling, her publishers, and rights holders like Warner Bros. have taken aggressive legal action across the globe, with varying degrees of success. The “Harry Potter” 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. Although the fifth installment of the series does not come out until June, it is already at the top of the Amazon.com bestseller list. While the world waits for the fifth installment, books purporting to be the fifth, sixth, and even the finale of the “Harry Potter” series are 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. In November 2002, 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 “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 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. In a way, this dispute is like the recent suit 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, author of “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. Although the Grotter situation is somewhat similar, the outcome of a suit could be very different — even without taking the intricate differences between Russian and U.S. copyright law into account. A key argument in the “Wind Done Gone” case was that “Gone with the Wind” was a cultural icon and 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” series, it is not a classic like “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 “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 rightsholder, “‘Porry Hatter’ is a real parody created according to all canons of the parody genre.” Legal action is not always the best solution. A Google search reveals a large number of Harry Potter fanzines and fan sites featuring stories that use “Harry Potter” characters and images without the copyright holder’s authorization. It would be a publicity nightmare to sue every single Web site owner. After all, these stories were not written by free riders, but rather by obsessive fans who are avid promoters of the “Harry Potter” mystique. Warner Bros. learned that lawsuits aren’t always the wisest course in December 2000 when the company threatened to sue a 15-year-old English schoolgirl over her Web site and domain name, www.harrypotterguide.co.uk. The resulting publicity nightmare is now referred to by some as the Potter war. The studio eventually backed down after she and others organized a boycott of “Potter” merchandise in protest through another Web site, potterwar.org.uk. 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 to download official banners, shields, and seals. Commentators always talk about how society needs authors, and how some authors would take up more remunerative jobs (perhaps as lawyers?) if they were not compensated for their creative efforts. The converse is also true. Authors need fans and customers. Copyright involves a simple virtuous cycle. So simple that even the muggles (a.k.a. humans) can figure it out. Peter K. Yu is acting assistant professor of law at Benjamin N. Cardozo School of Law, Yeshiva University. In the fall, he will join the law faculty of Michigan State University, where he will serve as the founding director of the intellectual property and communications law program. E-mail: [email protected] .

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