So as JK Rowling, and her publishers Bloomsbury, head off for a court date with the estate of Willy the Wizard author, Adrian Jacobs, I was a little confused about the logic. Jacobs’ estate claims not that Rowling has plagiarised the text word for word, but that aspects of the plot, sub-plots, themes and incidents in Willy the Wizard have been copied, within Harry Potter and the Goblet of Fire.

Given that we’re told there is no copyright in ideas, this may seem a lost cause. However Jacobs’ estate claims the similarities represent the expression of original ideas and that taken as a whole they constitute a substantial part of their author’s work – both important issues in copyright judgments. Further they claim that Jacobs unsuccessfully submitted his manuscript to the agent Christopher Little in 1987 and that when Little became Rowling’s agent eight years later he shared the material with his author. Rowling and Bloomsbury say that any similarity between the books has arisen purely by chance, that the aspects in question are high-level ideas not protected by copyright and that Rowling had no knowledge of Willy the Wizard or its author prior to the publication of Goblet of Fire.

Mr Justice Kitchin’s judgment yesterday (helpfully provided by IPKAT) makes interesting reading – explaining in great depth the legal aspects that must be considered and the evidence that has so far been presented, including statements from academics who have commented on the similarity issue. Kitchin also provides a handy summary of six issues which “frequently arise for decision in proceedings for infringement of literary copyright under the 1988 Act”:

  • What are the similarities between the alleged infringing work and the original work? (There is no arguable case of copying unless similarities exist.)
  • What access, direct or indirect, did the author of the alleged infringing work have to the original copyright work? (Establishing a causal connection between the two works is essential.)
  • Did the author of the alleged infringing work make some use in his work of material derived by him, directly or indirectly, from the original work?
  • If the defendant contends that no such use was made, what is his explanation for the similarities between the alleged infringing work and the original copyright work?
  • If use was made of the original copyright work in producing the alleged infringing work, did it amount, in all the circumstances to “a substantial part” of the original work?
  • What are the circumstances or factors which justify evaluating the part copied in the alleged infringing work as a “substantial part” of the original work?

[2010] EWHC 2560 (Ch)

While admitting that there are significant disputes about whether the similarities exist at all, and also expressing the view that they may be “at such a high level of generality that they fall on the ideas rather than the expression side of the line”, Justice Kitchin concludes that “the matter cannot be determined on a summary basis before trial”. So until Rowling and Bloomsbury get through what some predict to be a ten-day long trial, we won’t know whether they’ve lost the plot or not.