Monthly Archives: February 2010

Harry Potter v. Willy the Wizard: Who Came First?

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Ever since the first Harry Potter novel was released in 1997, readers all over the world have delighted in the fantastic adventures of Harry and his classmates at the Hogwarts School of Witchcraft and Wizadry.  But when J.K. Rowling wrote the fourth book in the series,
Harry Potter and the Goblet of Fire, was she drawing from her own imagination or from a novel written years before Harry Potter was even conceived?  According to the family of Adrian Jacobs, author of the 1987 novel entitled, The Adventures of Willy Wizard No 2: Livid Land, Ms Rowling plagiarized the late Mr. Jacobs.

The estate of Adrian Jacobs (who died in 1997) first sued Rowling’s publisher, Bloomsbury Publishing, in June of 2009, before joining Ms. Rowling as a defendant in February of 2010.  The lawsuit, filed in High Court in England, alleges that both novels involve human hostages being held in a bathroom by half-human creatures, as well as boys who are trying to rescue the hostages. Other alleged similarities between the two books include a wizard train and a wizard prison.

Regardless of how similar two literary works may be, an author is not generally considered to be liable for plagiarism if that author’s work was arrived at independently.  J.K. Rowling has claimed that she had never even heard of Adrian Jacobs or his novel until the first accusation of plagiarism was made in 2004, some four years after the publication of Harry Potter and the Goblet of Fire.

This is not the first plagiarism lawsuit filed against Rowling.  In 1999, American author Nancy Stouffer claimed that her two 1984 works, The Legend of Rah and the Muggles and Larry Potter and His Best Friend Lilly were the basis for the Harry Potter character.  Rowling claimed that since only portions of Rah were printed in booklet form in 1986 and were never sold, either in the United States or elsewhere, there is no way that she could have plagiarized Stouffer’s works, especially since she never even visited the United States until 1998, a year after the publication of the first Harry Potter novel.  In 2002, Rowling, her publisher, and Warner Brothers (owner of the movie rights to the Harry Potter books) sought and received adeclaratory judgment that they had not infringed on Stouffer’s works. It was further ruled that Stouffer had in fact defrauded the Court.

Stories of wizards & witchcraft date back at least as far as the legends of Merlin the Magician, and there are common threads that run through many such stories.  Not even a magic spell will help the estate of Adrian Jacobs unless the estate can prove direct copying.

The Saints, The Super Bowl and “Who Dat?”

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Whether it’s “Ya Gotta Believe” for the 1973 New York Mets, “Commitment to Excellence” for the 1963 Oakland Raiders or “Win One for the Gipper” for the 1928 Notre Dame Fighting Irish, sports teams have long been associated with slogans. The Super Bowl champion New Orleans Saints is no exception. But it wasn’t until the Saints won their 
first visit to the Super Bowl, which often brings with it increased sales of sports apparel and memorabilia, that controversy began to rise about who owns the rights to the slogan “Who Dat?”

Seizing on the opportunity, several enterprising entrepreneurs began making and selling T-shirts emblazoned with the “Who Dat?” slogan. Some of these small businesses were served with cease and desist letters from the National Football League and a company called Who Dat, Inc., claiming infringement on the NFL’s and Who Dat, Inc.’s slogan.

Although sometimes mistakenly referred to as “copyrighted” material, slogans (like single words, logos, certain sounds and even some smells and motions) are considered to be trademarks, and as such, ownership in the United States is generally determined by use. Whoever uses a trademark first and continues to do so is usually deemed the rightful owner. One way of enhancing those rights is to acquire federal trademark registration. Aside from allowing the registrant to seek attorney’s fees, federal registration serves as constructive notice to anyone in the United States not to use the mark, unless their use predates that of the registrant.

In 1991, and again in 1993, Who Dat, Inc. filed intent-to-use trademark applications with the U.S. Patent and Trademark Office for a variety of apparel items, to include T-shirts. Although the mark was considered registrable both times, Who Dat, Inc. never filed a Statement of Use, so registration never issued. (In 1992, between these two applications, Who Dat, Inc. obtained a federal registration for “Who Dat?” for soft drinks, but the company let this registration lapse in 1998.)

In 2004, an individual from New York City filed an intent-to-use application for “Who Dat” for clothing. The application was opposed by both the New Orleans Louisiana Saints, LLC and NFL Properties, LLC in 2006, but the opposition was withdrawn in 2008. To date, this applicant has not yet alleged use of the mark nor have the Saints or the NFL filed their own applications for registration.

On January 7, 2010, after the Saints had made the playoffs and with the prospect of greater post-season sales, Who Dat, Inc. filed a third application for clothing, this time claiming a date of first use in commerce of October 26, 1983. This application is still pending, as are several intent-to-use applications for variations of “Who Dat?” filed by other individuals looking to capitalize on Who Dat fever.

After the NFL sent out its cease and desist letters, several prominent Louisiana politicians got involved in the dispute. Senator David Vitter wrote a letter to the Commissioner of the NFL, claiming that the slogan “Who Dat?” dates back some 130 years to minstrel shows and “was adopted by Saints fans in a completely spontaneous way.” Congressman Charlie Melanconlikewise voiced his disapproval of the NFL’s action, and on January 25, 2010, Governor Bobby Jindal proclaimed “Who Dat Nation Week” in Louisiana. So great was the outcry from Saints fans and their elected officials that the NFL eventually backed down. In a letter to Louisiana Attorney General James “Buddy” Caldwell, NFL senior vice president Gary Gertzog, the league confirmed Louisiana’s position that the NFL does not have exclusive rights to either “Who Dat,” “Who Dat Nation,” the French fleur-de-lis symbol or the colors black or gold.

The events of the last several weeks should demonstrate to everyone who’s claimed ownership in the “Who Dat” slogan over the last two decades or longer that waiting to protect one’s rights until a trademark suddenly increases in value is rarely the best strategy.

J.D. Salinger, The Catcher in the Rye & Intellectual Property Rights

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I first read The Catcher in the Rye during my junior year of high school.  It was so unlike any book I had ever read previously because its main character, Holden Caulfield, was an anti-hero protagonist.  The influence of J.D. Salinger’s Holden Caulfield cannot be 

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denied.    Author J.D. Salinger died on January 27, 2010 at the age of 91.

In the field of intellectual property law, Salinger is also remembered for two landmark copyright cases, one of which is still pending.  The first case, Salinger v. Random House, Inc., involved the right of the author of unpublished letters to keep direct quotes and close paraphrases of those letters out of an unauthorized biography.  In 1983, biographer Ian Hamilton approached Salinger about his intent to write a book about Salinger’s life.  Salinger voiced his opposition to the project, but Hamilton proceeded nonetheless, completing the book J.D. Salinger, a Writing Life in 1986.  Hamilton drew heavily from Salinger’s unpublished letters, which were held by libraries at Harvard, Princeton and the University of Texas.  In order to gain access to these letters, Hamilton signed form agreements restricting his right to publish the contents of the letters.  When Salinger reviewed the galleys of Hamilton’s book in May of 1986, he registered 79 of his letters with the U.S. Copyright Office and had his attorney instruct Hamilton to delete the quotes from Salinger’s letters.  Hamilton and his publisher, Random House, revised the galleys, but retained some quotes from the letters.  As a result, Salinger sued Random House in October 1986, seeking a preliminary injunction to prevent the publication of Hamilton’s book.

The federal district court awarded Salinger a temporary restraining order but denied him the preliminary injunction.  Salinger in turn appealed the decision.  Using the four statutory fair use factors (purpose of the use, nature of the copyrighted work, amount and substantiality of the portion used and effect on the market), the Second Circuit Court of Appeals ruled in favor of Salinger and directed the trial court to issue a preliminary injunction barring publication of the biography.

The second case, Salinger v. Colting, involves the publication of what some believe to be a sequel to Salinger’s The Catcher in the Rye.  The book in question, entitled 60 Years Later:  Coming Through the Rye, was written by Swedish author Fredrik Colting under the pseudonym “John David California.”  In June 2009, Salinger filed suit against Colting, his publishers and distributors, and in July 2009, the U.S. district court granted Salinger a preliminary injunctionenjoining the Defendants from advertising, publishing or distributing Colting’s book.

Colting, his publishers and distributors appealed the ruling to the Second Circuit Court of Appeals, arguing that 60 Years Later:  Coming Through the Rye was not a sequel to Salinger’s novel, but “a critical literary commentary about Salinger’s famous work.”  Rather than a continuation of The Catcher in the Rye, they claimed that Colting’s book merely examines the relationship between Salinger and his fictional character, Holden Caulfield.  At the time of Salinger’s death, Salinger v. Colting is still pending in U.S. District Court.

In literary circles, J.D. Salinger will always be remembered for the novel The Catcher in the Rye.  But in the legal field, we can also say that Salinger zealously defended his intellectual property, both published and unpublished.