Many of our readers will be familiar with the Willy the Wizard case, having read our previous posts here, here and here. However to briefly recap, Adrian Jacobs was the author of a 16-page book called Willy the Wizard. Whilst he is long deceased, the trustee of his estate, Paul Allen, has commenced proceedings against Joanne Kathleen Murray (professionally known as JK Rowling) and her publisher for infringement of copyright, on the basis that Harry Potter and the Goblet of Fire incorporates the sub-plots, themes and incidents of Willy the Wizard.
In rejecting the summary dismissal application, Kitchin J concluded that whilst the claim may succeed, it is improbable that it will do so. The decision can be accessed here.
The case usefully illustrates summary judgment principles. In short, it is not a mini-trial. The fact that such furious debate existed between the parties on a number of topics clearly persuaded the judge that he could not dispose of the case without these matters being fully tested.
This is not to say that Kitchin J developed a positive view of the claimant’s prospects: “… the similarities upon which Mr Allan relies seem to me to constitute ideas which are relatively simple and abstract and I strongly incline to the view that they are at such a high level of generality that they fall on the ideas rather than the expression side of the line. However, I do not feel able at this stage to say that Mr Allen’s case is so bad that I can properly describe it as fanciful.”
Incidentally, our own previous comparison of the works stands up pretty well against Kitchin J’s own comparison. He too noted that whilst the ideas were similar, there were issues about whether they were commonplace, and that there were important differences in detail. So, while Harry and Willy were both wizards, Harry was a schoolboy whereas Willy was a grown man. The detail of the competing bathroom scenes provided another example of difference in expression.
The claimant’s case turns on the proposition that Mr Jacobs and Ms Rowling shared a common literary agent, Christopher Little. As a result, either Ms Rowling or Mr Little had access to, and copied, Willy the Wizard. In the case of Mr Little, this would have been in the form of “offering suggestions” to Ms Rowling to improve her book.
Christopher Little testified that he was introduced in 1986 to Mr Jacobs by a friend, David Markson, and that the three of them met for lunch at the Casanova Club. He visited Mr Jacobs’ flat after the lunch and was shown a copy of Willy the Wizard. He recalled that he was embarrassed by the work because it was extremely poor, and he remembered sitting in the flat wondering how politely to reject Mr Jacob’s desire for representation.
However, Mr Little’s evidence was contradicted by multiple witnesses, who had a very different recollection of these events. It was contended that the meeting took place in the following year, that Mr Little was far more positive about the work, and that indeed, he agreed to and did sign up Mr Jacobs and even engaged in a print run of the book. Kitchin J indicated concern about the quality of Mr Little’s evidence (“it is clearly arguable that Mr Little’s evidence is not correct”), and noted that if it was incorrect, the reason for this needed to be explored.
JK Rowling’s evidence was described as “powerful” by the judge. She testified that she conceived of Harry Potter on a train journey from Manchester to London in 1990. That evening, she began writing Harry Potter and the Philosopher’s Stone. She completed the text in 1995, engaged Mr Little as her agent, and the rest is history. It was not until 2004, when a claim was made against her, that she first became aware of Willy the Wizard. Ms Rowling’s evidence was not challenged, although the claimant’s counsel pointed out that it had not yet been tested.
One difficulty which the claimant is likely to face, even if Mr Little’s evidence is later found to be problematic, concerns his influence on JK Rowling’s work (or lack thereof). She contends that his role was incidental, although the judge noted that the original manuscript has not yet been produced. However, the Willy the Wizard case stems from “5 main plot elements” in which these same elements are said to be a theme of and incorporated into the plot of Goblet. Off this spine are said “to hang the ribs” of the sub-plots, themes and incidents of Willy the Wizard. In circumstances where the allegations stem from the architecture of Goblet, for the claimant to succeed, it must be the case that the author has been integrally involved in the infringement. Yet if JK Rowling’s evidence remains “powerful”, it is difficult to see how this could be demonstrated.
The defendants have sought security for costs in light of the “shadiness” of the claim, alleging that a consortium is seeking to use the Willy the Wizard claim to extort money from the defendants, and also as a means of selling more Willy the Wizard books. The judge observed that these were serious allegations against Mr Allen, and that he was not prepared to order full security without full argument on the issue. However, he did make a conditional order. Clearly, this dispute has some way to go. We’ll continue to keep you informed.