Where's the Line Between Fandom and Studio Rights?
Filed under: Celebrities and Controversy, Fandom, Home Entertainment, Harry Potter
The long arm of Warner Bros. law strikes again. For many years now, the studio has been known for being quite strict with their projects. I'm not sure if any property felt that quite so much as the television world of Buffy; numerous fan sites were shut down during the run of the show, and post-finale, the uber popular Musical events were nixed. Now it's happening to fans of our favorite young, big-screen wizards. The BBC reports that a woman planning a couple Harry Potter supper club nights for Halloween has been told to stop infringing on the studio's rights. Ms. Marmite Lover runs a small restaurant of sorts out of her home -- selling tickets and then making food for her guests, sometimes themed. For Halloween, she chose to make a Harry Potter-themed meal with a Diagon Alley entrance with password, a sorting hat, and food that includes butterbear and Fizzpop chocolate frogs. As part of their letter, Warner Bros. says: "We would therefore ask that you refrain from holding and/or offering for sale any tickets to the Harry Potter Nights and confirm to me by return email that the Harry Potter Nights will not go ahead as planned. Warner does not, of course, object to you holding a generic wizard/Halloween night at the Underground Restaurant."
She's since changed the name of the event, which is going on as planned, although I imagine Warner Bros. was probably expecting a little less Pottermania through the whole event (the Alley, hat, etc.). But how far should studios stretch their rights in cases like this?
If the studio didn't already have a history of ire with small-time fan recreations, one could reason this was all because of her charging money. But even then, it's not a Potter-based business or even anything big-time. This is just a woman running a small business entertaining people in her home and picking a holiday-appropriate theme. And perhaps some people could think it's a WB-sponsored event with the use of logos or artwork, although I think there's a clear divide between big events and supper clubs.
In the eyes of Warner Bros., there's a lot of NO in the fan world, and they've laid the smackdown on Potter fans before. But how far should they take it? Are they in the right with all of their demands on fans? Where should the line be drawn between fan adoration (which, quite frankly, is excellent advertising) and infringement? When people charge money? When events are a certain size? Should there be a new Dumbledore army against studio law?
Weigh in below.
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Reader Comments (Page 1 of 1)
10-26-2009 @ 5:41PM
Dave said...
She was using the Potter trademark in a commercial setting. Using a character and design that is not yours in order to make money is not ethical or legal.
If she wanted to be a "fan" and celebrate the work with some friends there would be no problem. Charging money for it is a no no. If she wants to make money she can create her own characters.
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10-26-2009 @ 5:43PM
Kevin S. said...
This may seem nitpicky, but the bottom line is this is copyright infringement. As a professional writer, I know that I would be pissed if someone compromised one of my fiction pieces (currently I am only published as a journalist in newspapers and magazines) for the intent of making a profit, I know I'm not going to care how small the business is, I'm going to be annoyed that someone is profiting off of my hard work. What's the point of having copyrights if the company through which I work isn't going to enforce the copyright?
Now, when they wanted bookstores to not do the Harry Potter-themed release parties for the last book, that seemed a bit over the top as the party could be viewed as promotional for the materials themselves, rather than an individual trying to profit off of someone else's work.
What has to be considered is that if you don't enforce the copyright consistently - if you pick and choose how the copyright is enforced rather than enforce it whenever violated, then you open yourself up to serious damage to your own pocketbook - primarily in the courtroom as the question of why the copyright was enforced in one case, but not in another will be asked - and no judge will accept "well violator A was a considerably larger enterprise than violator B," as an excuse for inconsistency.
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10-27-2009 @ 5:16PM
Chad said...
Kevin,
You are mistaking one of the core tenants of Trademark law (you must protect your mark every time or risk loosing it) versus copyright law, which has no such "mandatory defense" argument.
My thoughts on Warner Brothers actions are this: They are overreaching, not legally but culturally. Yes, she is probably using WB copyrighted material in her party (that she will be profiting off of), to that I say "So What!" As a marketing issue, a party like this is much more effective in creating and maintaining fan interest than in corporate sponsored events. They should be happy that people like her are keeping Harry Potter popular prior to the distribution of the last two movies. It's doubly important to do that now that the last book is out and anyone who is interested can find out how the whole thing ends. If she profits off of it a little, who cares.
I believe that content creators should have intellectual property protection for a limited time so that they can profit from their work and continuing making more, but I think the field has tilted to far in giving the IP owners too many rights at the expense of the free expression of our culture.
10-27-2009 @ 6:42PM
Kevin S. said...
No one would care if she were paying a cut to WB and the Rowling. There is no such thing as giving the creator of intellectual property "too many rights." No one is saying this woman can't express herself - they're saying she's violating copyrights - and even the story mentions things straight from the book that she planned on using. If you think that Rowling's work is too protected by current laws, then I must think you have no idea how hard creating even a short piece of fiction is, let alone creating something on the scope of Harry Potter, and thus, why it necessitates at the very least, the current level of protection that the law affords.
BTW - all books have a copyright that runs out, giving copyrighted work a limited time for protections to be in place - given the way you started your comment, I would assume you knew that. Yes, the copyright can be renewed by the writer or the writer's estate. And while you are right, there is no mandatory defense in regards to copyright, that doesn't mean that a presiding judge, particularly a bright one, isn't going to be inquisitive in regards to why a person gave one violator a pass, while they went after another. And that can weigh into a decision.
Personally, my question - how is keeping one from stealing someone else's intellectual property for the purpose of making a profit done at "the expense of the free expression of our culture"? I suppose prosecuting people for shoplifting is done at the expense of the free trade of goods in our culture. The key word in the thing we are arguing about here is "property." They're not saying she can't do a wizard themed dinner. They're asking for a cease and desist on the Harry Potter stuff that was obviously not her "property."
10-26-2009 @ 5:43PM
scott said...
the line should be drawn when someone is profiting from someone else's property, like this woman was doing.
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10-26-2009 @ 6:25PM
Rivndellelf said...
It sucks for her, but yeah, I think everyone else here (and WB) are correct in that the problem is that she's profiting from it and that therefore WB is totally justified sending her a cease and desist order.
What she should have done is have a Harry Potter themed dinner party and then just tell people that she's collecting money to help cover the cost of the food. No tickets involved. No implication of profiting. It's like a pitch-in/pot luck, but instead of bringing food, people just help you pay for it. I would think something like that would work, right? It's all in how you phrase it. Then again, I'm no lawyer, so that might not work either, but it seems like WB would have been less likely to go after her for that...
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10-27-2009 @ 2:12AM
Tanner said...
This is why I believe authors should fight to keep the majority rights on their intellectual properties when they get made into movies.
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10-27-2009 @ 7:53AM
C.A. said...
That's just being WB being a holes. Like they are taking a huge hit. They are responsible, along with the books of course for, making Harry Potter a cultural phenomenon. Maybe they should just be happy it's that popular. I wonder how much profit that lady would have really made off this party and how much was going to be used to pay for supplies and food?
One thing I know, when you hold the rights to something you have to vigorously defend them or it could fall into public use. I don't think this would ever happen because someone through a Harry Potter party, but some other large company might use that against WB in court as an example of them not caring.
Either way, I think it's lame and sad.
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10-29-2009 @ 1:12PM
Diarmada said...
If Star Trek had taken this approach back in the sixties, it would have probably been a minor footnote in the history of TV. But since they embraced their fans and had an open script policy and such, they were able to capitalize on word of mouth and increased exposure...Which 11 or 12 movies and 5 or 6 tv shows later, has proven to be well worth it.
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10-29-2009 @ 9:28AM
fft5305 said...
The line is drawn at the fact that she is doing this as a business venture. If she were having a few friends over for an HP-themed party, no problem. She is using the HP name and likenesses for her business and attempting to profit from them without legal consent, and that is stealing.
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10-29-2009 @ 2:23PM
TP said...
Legally, sure, the WB was within its rights. But what a shame that's the way the world works. It was a neat little event held in celebration of a fictional character whose success has been measured by more than the money he has earned. Yes, horrors, someone unaffiliated with the studio might have made a small profit.
Is it really unreasonable that the people who've invested their time, affection and, yes, money in Harry Potter, Batman, the Bride of Frankenstein, etc., want to throw a little party every now and then? Are we truly unable to distinguish between what's small and harmless, maybe even helpful, and what's not?
This heartless bottom-line approach to each other doesn't serve us well.
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10-29-2009 @ 2:55PM
Michael M. said...
If she's done this before with themed parties NOT based on any franchises, I would think she should be allowed to use the HP theme so long as she charges no differently per ticket than she does for her generic-themed parties...
I'm a creator myself, so I appreciate copyright/trademark laws, but I think there should be a safe zone for fandoms. I, for one, would be ecstatic if anything I created ever took on such a fanbase.
I say so long as the profits remain nominal (especially if they aren't marked up just because of the IP-theme) and the "exposure" of the event is limited, not only should rights holders have no grounds for legal action, but they should just embrace it anyway.
But Rowling herself went after and hammered that uber-fan who wanted to make an unofficial fan-cyclopedia of the series... Different scenario, sure, but I think she could have handled it a little differently...
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10-29-2009 @ 3:29PM
sms1954 said...
This appears to be a case of money being charged for food and service while using decor that might have been purchased from over-priced paraphernalia distributed or sanctioned by the studio itself. If such was the case, perhaps fans should simply shun the merchandising and stop trying to foist their money on unwilling authors and studios.
I agree that authors, artists, studios, etc., have a right to protect their product, but if they want to keep their property so close at hand, why do they market all sorts of supplemental material in addition to the primary product (i.e., HP costumes, wands, jelly beans, lamps, bedsheets, whatever junk)? They want all the money they can wrest from fans, but then object when the same fans attempt to use their fan paraphernalia in celebration of the product.
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11-05-2009 @ 10:48PM
Ken Moffatt said...
Just curious ... If a bar in New York City advertises a New York Rangers themed party during Stanley Cup playoffs, are they infringing and profiting on the copyrighted New York Rangers hockey franchise?
Is this seen as good advertising & fan support?
Where does the line get drawn?
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10-29-2009 @ 7:50PM
Alvy Singer said...
I cannot even believe some of these asinine replies. A small business has a Harry Potter night and most side with the corporate entity? What is next, my daughter's birthday shut down because it has a Sponge Bob theme? Who knows, she may pull in a hundred dollars worth of profit ... uh, I mean, presents.
Best though is the post from the unpublished writer who worries that his unwritten/unpublished novel may one day inspire a another restaurant to sponsor a night in his, as yet, uncreated characters name. HAH! He should be so lucky to be so successful.
It is like when Disney complained to a children's hospital because they had a mural of Disney characters on their wall.
Disney backed down real quick once it made the papers. And trust me, so would have Warner Bros. They have all ready pulled in billions from Harry Potter, now they want to dip their greedy fingers into the profits of a one-night only theme party. Holy mackerel. What a joke.
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10-30-2009 @ 4:16AM
David said...
I think most people are missing the main problem here. It is not that they have a problem with the little amount of money involved, but the lack of control.
HP is a huge franchise for them, and they want stirct control over how it is used. What happens if she gives everyone food poisoning and it gets widely reported as people getting sick at a HP party (without mention that it was unofficial)?
HP is also a kid friendly franchise, so what if she also serves alchohol (which is likely against their marketing strategy)? What is the entertainment, strippers?. Obviously it probably won't be, but they can't be sure as they do not control the party. Any number of things could go wrong, and get widely reported. A fire and people die, etc.
They are certainly not stopping her because of the money. It is simply because they want more control over how the brand is marketed, and her party is outside of their control.
10-30-2009 @ 2:36PM
TPowelltrout@yahoo.com said...
I for one wasn't missing anything, David. It's that "control" that strikes me as draconian.
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11-03-2009 @ 2:41PM
Alejandra Fitzsimons said...
!!
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