China Copyright Protection: Harry Potter and the Goblet of Plagiarism

How do you know when a copyright has been infringed? For years, this wasn’t even a question people asked in China because it was so obvious. The guys on the corner with carts full of bootleg CDs and DVDs, the illegal BitTorrents and download sites – all of them were wantonly and flagrantly engaging in copyright infringement. Indeed, infringement was their business model. If they weren’t offering copies of copyrighted works, nobody would be interested.

Slowly but surely, though, China’s enforcement of copyright infringement has improved – in large part because large Chinese companies like Baidu and Alibaba and Tencent now control the rights to a great deal of content and their business models are based on people not getting such content for free somewhere else. The BAT companies have turned to Chinese agencies and courts to enforce their rights, evidenced by a concomitant surge in copyright-related litigation. We wrote about this last year in Copyright Protection in China– It’s Real, and It’s Spectacular:

The point is not that Chinese courts are establishing new rights, but that they are enforcing the rights that already exist for copyright owners – and doing so in a meaningful way. Both Chinese and foreign copyright owners are turning to Chinese courts to enforce their rights, and are prevailing. At least with the easy cases.

China still has work to do on the easy cases before it gets to the level of the US or the EU, but the concept (and value) of copyright has taken hold in China. Bring on the not-so-easy cases! Like the ongoing “Blurred Lines” case in the US, in which Marvin Gaye’s estate sued Robin Thicke and Pharrell Williams for allegedly copying the musical style of “Got to Give It Up.”

Where is the line between plagiarism and inspiration? American courts have grappled with this question for years; lawsuits are filed every day by songwriters and screenwriters who hear a hit song or see a hit movie or tv show and think that the creators stole their work. Many of these cases are spurious and easily dismissed on summary judgment, but not always.

Robin Thicke and Pharrell Williams lost at trial and on appeal, but still deny that they copied Marvin Gaye. Led Zeppelin prevailed in a lawsuit over “Stairway to Heaven,” but the plaintiff (the songwriter for 70s band Spirit) has appealed. Sam Smith quietly settled with Tom Petty before a lawsuit was even filed – perhaps because he feared he would lose the battle of forensic musicologists.

It’s more common to see a music-related case alleging infringement go to trial than a film or tv-related case – probably because musicology offers at least a semblance of objectivity when comparing the original and the allegedly infringing work. But that doesn’t stop online fans from crying foul when they see uncanny echoes of their favorite works in a new program. That’s what happened last week when the Chinese tv show Legend of Fu Yao was taken to task for allegedly ripping off numerous plot points from J.K. Rowling’s Harry Potter and the Goblet of Fire (book four in the seven-book Harry Potter cycle).

This is hardly the first time the Potterverse has been ill-used in the Middle Kingdom. Back when new Harry Potter books were still coming out, Chinese publishers did a brisk business in fake Harry Potter books. Who can forget “Harry Potter and the Hiking Dragon,” “Harry Potter and the Chinese Empire,” or “Harry Potter and the Big Funnel”? Laugh if you want, but these books sold millions of copies. You can understand why loyalists would be unhappy about the latest affront to the Hogwarts canon. The difference is, these days J.K. Rowling can do something about it.

I haven’t seen Legend of Fu Yao and can’t comment on the extent and depth of the alleged similarities. But if the producers of that  show really did steal from J. K. Rowling she could sue in China under the Copyright Law and the Law Against Unfair Competition. That was Disney’s successful strategy against the Chinese filmmakers who made The Autobots, a film whose anthropomorphic cars looked almost the same as Lightning McQueen et al. from Cars.

Suing over Legend of Fu Yao would likely be tougher sledding, but figuring out whether you have a case is what lawyers do for a living. If I were J.K. Rowling, I’d ask my lawyer to engage a China IP lawyer, stat.