Harry Krishna?

By Legal Eagle

I’m fascinated by the Harry Potter industry. We’ve already seen Warner Bros and J.K. Rowling take on a New York librarian and lexicon author for copyright infringement. Now they are taking on the might of Bollywood… The Indian movie is called Hari Puttar – A Comedy of Terrors. The Hollywood Reporter tells us:

The case is being heard in the Bombay High Court and comes up for hearing Monday (August 25). “Hari Puttar,” a comedy that centers on a 10-year-old Indian boy whose family moves to England, is slated for a September 12 release.

“We have recently commenced proceedings against parties involved in the production and distribution of a movie entitled ‘Hari Puttar,”‘ London-based Warners spokeswoman Deborah Lincoln said. “Warner Bros. values and protects intellectual property rights. However, it is our policy not to discuss publicly the details of any ongoing litigation.”

The Hari Puttar name began making the rounds here [in India] as a comic gag when the first “Harry Potter” film was released. Hari is a popular Indian name, and “puttar” means “son” in the Punjabi language.

“Since the case is sub-judice, we can’t comment as of now,” Mirchi Movies CEO Munish Purii said. “However, we registered the ‘Hari Puttar’ title in 2005, and it’s unfortunate that Warner has chosen to file a case so close to our film’s release. In my opinion, I don’t think our title has any similarity or links with ‘Harry Potter.”‘

I wonder if they are going to attempt a breach of trademark claim? Or will it be a passing off claim? I should think the latter would be more difficult, as I can’t imagine any chance that consumers would be confused.

To my mind, this case is going a little too far. Yes, it’s clearly a spoof on Harry Potter, as well as a joke on how the name sounds to people in India. But I don’t see how it harms Warners, any more than the various spoof novels harmed Rowling.

Hari Puttar Movie Poster

(Via WSJ Law Blog)

Update

Did someone mention Disneyland in comments? There are suggestions that Disney might not own copyright in Mickey Mouse. It’s all to do with the way he evolved… Read more here at Cearta.ie.

26 Comments

  1. Posted August 27, 2008 at 8:26 am | Permalink

    IP is one of the western world’s great frauds, handed to the planet as a gift the way China gave the planet the bubonic plague way back when.

    Seriously now, I wonder too what their action could be- I suppose Indian IP law might have a hole in it somewhere to suit these buffoons. Copyright deals with the expression of the idea not the idea itself, so I wouldn’t have thought that’d do it.

  2. Posted August 27, 2008 at 9:27 am | Permalink

    Couldn’t be copyright, as they’d skate by as ‘parody’; must be a trademark action. India is a common law country – not hugely different from Aus or the UK.

    It’s hard to see how they’d be able to run the usual trademark arguments, thought – they’re all about people buying the fake and thinking it’s Nike, as opposed to people buying the fake because it’s a fake (ie a deliberate parody/piss-take).

  3. Posted August 27, 2008 at 9:30 am | Permalink

    Really, that’s gotta be a weak case in my view. Amusing of course. My guess would be that there would be the two types of claims: infringement of trade mark, and a passing off/deceptive conduct claim under whatever the equivalent law is in India.

    Any passing off/deceptive conduct claim would be particularly weak – in general, you need to show that consumers would be misled into thinking there was a connection of that the Hari Puttar film was somehow ‘endorsed by’ or licensed by Warner Brothers. Unlikely given it’s a fairly obvious spoof.

    In TM, you need to show, usually, that the marks are substantially identical or deceptively similar. They’re clearly not identical. Are they ‘deceptively’ similar? I would have thought, again, given that both words have their own meaning (Hari a common name; Puttar being son) that there’s no real chance there either.

    There’s an Indian IP Blog, Spicy IP, which comes to largely the same conclusion: see here.

    What if an injunction was sought to prevent distribution in Australia? Same analysis with a slight twist – I’m not sure a court would take into account, to the same extent, the other meaning of the words since they’re largely unknown to most Australians (I don’t think Hindi is so widely spoken here in Australia that you could claim the terms were well understood). Nevertheless, I think the spoof element, the ‘Comedy of Terrors’ tag line, the different sound, all together would take it out of ‘deceptive’ territory. Unless, of course, you get a particularly humorless judge…

  4. Nanu
    Posted August 27, 2008 at 11:02 am | Permalink

    Holly wood SLAPPs Bollywood! Vexatious litigation at its best. Quite shameful in my opinion. In the ideal world the matter would be thrown out immediately with significant costs against WB.

  5. Posted August 27, 2008 at 3:31 pm | Permalink

    What. A. Joke. There’s a whole series of parodic books all over the western world with the main character being ‘Barry Trotter’. They can’t seriously argue that ‘Hari Puttar’ damages their brand recognition, can they?

    I don’t know if Rowling, her publishers, and WB also own the copyrights to those books – it would explain why they have never seemed to have legal problems – but why bother, when you’ve already made a kazillion dollars from the franchise? How does Rowling stand to benefit?

  6. Posted August 27, 2008 at 5:27 pm | Permalink

    Damn!

    Is this gonna be a hassle when I make my Harry Potter porn movie?

  7. Posted August 27, 2008 at 5:53 pm | Permalink

    Here’s an article about Rowling’s recent litigation designed to stop the publishing of a Harry Potter companion book:

    And what perfidious act of “hijacking” has RDR Books committed? It planned to publish a book by Steven Vander Ark, a former school librarian who for the past half-decade or so has maintained a fan site called the Harry Potter Lexicon. … In sum, it’s a Harry Potter encyclopedia for obsessive fans.

    So long as the Lexicon was a Web site, Rowling looked kindly upon it; she once gave it an award and claimed to use it herself at times. But when Vander Ark tried to publish part of the Lexicon in book form – and (shudder!) to make a profit from his labors – Rowling put her foot down.

    So it’s alright to write it just don’t print it. Why? ‘Cause I’ve got dibs on it.

    Doesn’t she have enough money?

    Funnily enough there was a view that JK Rowling herself pinched Harry Potter from Neil Gaiman’s graphic series The Books of Magic. Like Harry, Magic features an English lad, brown hair, glasses who is introduced to the world of magic and destined to become a great sorcerer.

    There are lots of differences of course. Gaiman’s magician, Tim Hunter, is working class for example.

    One fan commenting at the above link says:

    This series came out long before Harry Potter. In my view, that fact makes J.K. Rowling a worthless, plagiarizing hack–but that’s probably just me.

    Neil Gaiman’s commentary on the some assertions that Rowling ripped him off were described by him as “astoundingly badly written lunatic conspiracy theory nonsense [and] easily disproven creepy nonsense.”. The Books of Magic is owned by DC Comics and the film rights were bought by Warner Bros. He never owned it.

    In my view Rowling might’ve pinched the personae but Potter is hers. And The Books of Magic shits on him from a much greater height.

    Gaiman has commented on his blog about Rowling suing the little guy:

    My heart is on the side of the people doing the unauthorised books, probably because the first two books I did were unauthorised, and one of them, Ghastly Beyond Belief, would have been incredibly vulnerable had anyone wanted to sue Kim Newman and me

    He’s not vindictive at all (he’s famously lovely) but I reckon his point sticks. Rowling doesn’t need to push this dude to the wall and using copyright to banish anyone even from commentary on a work is going way too far. It’s monopolization.

    Incidentally the Gaiman link’s cute. He regrets leaving NYC before the papal visit (during Passover) ’cause he wanted to say: Good yontiff, pontiff!

    Cheeky laddie.

  8. boredacademic
    Posted August 27, 2008 at 6:00 pm | Permalink

    Adrien
    A quick google on “porn movie titles” suggests you might get away with it. “Ally McFeal” seems not unlike one popular TV show and Ghostlusters has a familiar ring

  9. Posted August 27, 2008 at 6:42 pm | Permalink

    Apparently Johnny Depp recommends Edward Penishands.

    Skeptic and L’eagle will not be amused to find I’ve derailed this into a shit-train of porn riffs. I did contribute something serious. But there’s links so it’s still in moderation.

  10. John Hasenkam
    Posted August 27, 2008 at 7:00 pm | Permalink

    How about a country lesbian porno:

    Birds in the Bush

  11. Posted August 27, 2008 at 8:17 pm | Permalink

    When Lucas took on the makers of the Battlestar Galactica movie back in the US courts in the 1980s over copyright issues, sf writer Brian Aldiss was on the defence team… he replied in court that both Star Wars and Galactica drew on a store of long-existing science fiction ideas for their movies.

    Same thing with Harry Potter and Gaiman’s books – the English boarding school novel with a magic twist is nothing new. It’s been around since probably the early 20th century. Neil Gaiman’s humility seems to indicate that he’s got a better grasp of this fact than Rowling.

  12. A. Atomou
    Posted August 27, 2008 at 8:21 pm | Permalink

    I remember hearing a radio program where an aussie lady had a fashion shop in the US somewhere (coulda been NY) which she called “Koala” something. After four years or so, coca cola send her a nasty letter, insisting that she changed her business name and that she owed them a certain huge sum of money in damages to their brand. She couldn’t fight it because she simply didn’t have the requisite treasury but she was, of course, ruined financially. I can’t remember the details of the story but that was the gist of it: Koala, was too close to coca cola, so far as coca cola was concerned. The fact that she sold dresses (children’s I think) and they sold poison didn’t seem to register in the minds of the thugs that ran the poison (hey, that’s MY opinion, right? Don’t supersue me!) factory.

  13. Posted August 27, 2008 at 9:18 pm | Permalink

    I do suspect that Warners are driving this, not Rowling. They probably want to build a Harry Potter theme park or something else along Disneyesque lines.

    FTR I like Harry Potter, partly because Rowling can write a sentence – something more than a few fantasy writers fail to do.

  14. Posted August 28, 2008 at 6:10 am | Permalink

    I can see one on my bookshelf at the moment – ‘The Secret of Platform 13’, by Eva Ibbotson. Also, in John Fardell’s book ‘The Seven Professors of the Far North’ he describes a secret underground, trans-continental rail service. It must be an idea that has some resonance in European culture. Rowling shouldn’t be too precious about it.

  15. Posted August 28, 2008 at 6:33 pm | Permalink

    @ skepticlawyer: I’m not convinced that parody would would be a complete answer to a copyright claim. I started to write a comment about here, but like Topsy it “growed and growed”, so I’ve written a post on my blog explaining why. Please do let me know if I’ve managed to get hold of the wrong end of the stick.

  16. Posted August 29, 2008 at 2:47 pm | Permalink

    Tim T – Same thing with Harry Potter and Gaiman’s books – the English boarding school novel with a magic twist is nothing new. It’s been around since probably the early 20th century. Neil Gaiman’s humility seems to indicate that he’s got a better grasp of this fact than Rowling.

    Well The Books of Magic isn’t a boarding school novel. Its hero, Tim Hunter is the nephew of John Constantine who besides being a magician and a geezer is a working class hero albeit with aristo ancestors. Anyway most of ’em wouldn’t be caught dead at Eton.

    Gaiman did a boarding school riff in The Sandman chapter The Season of Mists. For the uninitiated in this story the Devil quits his job, expels Hell’s residents and gives the key to Hell to Morpheus – the Sandman of the title. One of the consequences of this is the dead come back to their former haunts: in one case a boarding school much like Harrow. I found the representation of a boarding school haunted by sexually perverted, sadistic, damned souls quite realistic.

    And yes I suspect Gaiman’s forgotten more about literature than Rowling’ll ever know – de gustibus non est disputandum.

    Lucas took on the makers of the Battlestar Galactica movie back in the US courts in the 1980s over copyright issues

    That’s rich considering what a complete pastiche Star Wars is. The King of Chutzpah or straight-up arsehole. There’s no clear dividing line.

  17. Posted August 29, 2008 at 2:54 pm | Permalink

    One of consequences of this over-reach of copyright may actually be to stifle creativity. Most artists will admit that they pinch things left, right and centre. It’s just the way it’s done.

    In Stardust Memories there ‘s a film festival scene where one of Allen’s creative partners is asked whether one of their sequences was paying homage to a classic film it resembled.

    The answer: “Not exactly. We just stole the idea outright.”

    Activities like those of Lucas or Rowling will stifle creativity to the extent that they themselves wouldn’tve been able to do what they did had this been the way of things.

    If Lucas’ proposition viz Battlestar Galactica had weight then everyone from the makers of Lassie to Bogart’s movies could’ve had their hand out. Bollocks.

  18. Posted August 30, 2008 at 7:19 pm | Permalink

    Adrien, just for a bit of background – and because I don’t think I should be trusted on matters legal, historical, or anything else – I googled around for the story. There’s no information on the wikipedia page of Star Wars, or Brian Aldiss, but there’s a mention on Aldiss’s own website:

    And what exactly was I doing in Hollywood, dining friends on the Starlight Roof, living high on the hog? I was witness on a case which never came to trial. Shortly after the first of George Lucas’s “Star Wars” movies appeared, Universal brought out “Battlestar Galactica”. Lucas and Fox sued for plagiarism. But Universal’s defence lawyers looked up a definition I had given of ‘space opera’ in a book of that name, some years earlier.
    The definition reads in part:

    The Earth must be in peril… Space must flow past the ports like wine from a pitcher. Blood must run down the palace steps, and ships launch out into the louring dark. There must be a woman fairer than the skies and a villain darker than a Black Hole. And all must come right in the end…

    The “Space Opera” anthology was published in 1973. It defined an existing genre. So there could be no case for plariarisation. A Western director cannot sue another Western director for plagiarisation just because cowboys jump onto horses and shoot each other; it is generic that they should do that.

    So there you go – Lucas and Fox were apparently pissed with the Battlestar Galactica franchise, but the case never got to court.

  19. Posted September 2, 2008 at 5:10 pm | Permalink

    Update: there’s slightly more to the story, according to Spicy IP: sounds like there’s at least an argument that the makers of Hari Puttar may be sailing deliberately close to the wind, so to speak. Although arguably this doesn’t actually mean they won’t be safe – the spoof element is strong in this one.

  20. Posted September 2, 2008 at 5:20 pm | Permalink

    I have recently become obsessed with the remake of Battlestar Galactica after my sister loaned me her DVDs.

    Indeed. The only thing I miss about TV.

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