Court order spells the end for Harry Potter and The Copyright Dispute

AN INDIAN court recently rejected a claim that a wood and papier mâché model based on Harry Potter's school Hogwarts should be withdrawn from a religious festival as it breached copyright. In a petition filed in New Delhi by Warner Brothers (who control the rights to the Harry Potter movies in India) an injunction was sought to prevent the replica being used as part of the Durga Puja Hindu festival. Damages of around £25,000 were also claimed.

The four-day festival beginning on 17 October often features models based on popular themes. The temporary structures known as "pandals" are set up by different community groups to venerate the goddess Durga and in the past have included a replica of the Titanic. This year a community group attempted to add a touch of magic to the celebrations by building a model based on the Hogwarts school of witchcraft and wizardry. The Harry Potter-based decoration has cost an estimated 1.2 million Indian rupees (around 15,000). To continue the Harry Potter theme the group also intended to create a mock Hogwarts Express train and life-sized models of the main characters from the bestselling books. As prior permission was not obtained from the copyright owners, Warner Bothers, with the support of J K Rowling and her publishers, commenced legal proceedings for copyright infringement.

In the UK copyright is regulated by the Copyright Designs and Patents Act 1988. Under the Act the author of original artistic works (which includes architectural works and models) has the sole right to copy their works. Accordingly, any unauthorised copying amounts to infringement. Copyright covers a wide range of artistic works including two-dimensional plans for a building or structure, and scale models of a building. The protection extends beyond the confines of buildings and would also covers other structures such as a model of the Hogwart's Express train (even if this was previously confined to the pages of a book or the movie screen).

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Similar legal provisions in India meant that the replica of Hogwarts School and the other Harry Potter models were considered to breach copyright. Reports suggest that Warners may have been misinformed and understood that the Durga Puja festival was a commercially organised event intending to profit from the use of the Harry Potter brand. In reality, the pandals were only intended to honour the goddess Durga and the community group responsible were unaware that they were required to obtain any permission to use the images. Further, the community group indicated they do not have the money to pay a significant fine.

Ultimately, with wisdom worthy of Dumbledore himself, the judge has allowed the Harry Potter replicas to be used at the festival on this occasion. The decision was motivated by the fact there was insufficient time to amend the structures to remove the association with the Harry Potter books before the festivities began. While the court has allowed the Harry Potter theme to proceed it appears that this is a one-time permission and that consent will be required if any further Harry Potter themed festivities are planned in the future. Warner Bothers have stated that they are pleased that the copyright in the Harry Potter brand has been recognised by the Indian courts. The pandals will proceed, but Warner Brothers and Rowling have again sent out a strong signal that anyone using their intellectual property will be pursued in court.

• Colin Hulme is a partner and Jennifer Whitehead is an associate at Burness.

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