When I woke up this morning it occurred to me that I had given short shrift to Willy the Wizard’s claims in my post yesterday, and being a type-A personality the nagging feeling that I hadn’t done my homework sat uncomfortably in the back of my mind at breakfast and on the train into work. So when I had a free moment I pulled up the just-filed federal court complaint to get first-hand intelligence on what the allegations were. A few of them are disturbing (e.g., the claims that Christopher Little was Adrian Jacobs’ literary agent and received 1,000 copies of Willy the Wizard before becoming J.K. Rowling’s agent) but most of the complaint is taken up with nebulous allegations about how the plot and “feel” of the two books (the other book being Harry Potter and the Goblet of Fire) are the same. And while the litany of complaints is detailed, the allegations themselves ring a bit hollow when looked at individually.
For example, the idea of a wizardry contest at a school of wizardry does not exactly break new ground in the realm of fantasy — one has only to turn to LeGuin’s classic A Wizard of Earthsea (1968) to follow the adventures of Ged at the school for wizards on the Isle of Roke. And one can easily step out of our world and into the Land by merely cracking open Donaldson’s Lord Foul’s Bane (1977), where Thomas Covenant awakes to find himself in a magical world-within-our-world and wields wild magic that makes the Council of Lords at Revelstone uneasy. (Revelstone, of course, is a wizard’s college, among other things). And our inquiry needn’t end there, since there are innumerable books where the notion of formal training for magicians is a key element (see, e.g., Magician (1982)), and scores more where the idea of a wizard’s apprenticeship is mentioned in passing.
Willy’s claim that the concept of a young boy learning about magic and the secrets of the universe can be protected is patently ridiculous. You can’t copyright ideas, and the young-hero-coming-of-age story, with or without the magical extras thrown in, is no more copyrightable than the tired theme of the penny romance, where the poor heroine is swept off her feet by the dark, mysterious stranger who turns out to be a wealthy prince in disguise. The coming-of-age plus magic combination is so old it hardly bears mention, ranging from Mallory’s retelling of the tale of the rise and fall of King Arthur in Le Morte d’Artur –first published in 1485 — to so many iterations on the same or similar theme that they are beyond counting. Without even trying I can think of a handful of books with a similar theme — T.H. White’s The Sword and the Stone (1938); Susan Cooper’s The Dark Is Rising sequence (1965); Lloyd Alexander’s seminal work The Chronicles of Prydain (1964); and C.S. Lewis’ famous The Chronicles of Narnia (1950). In all of them the subject of children finding their way through a magical realm, or finding magic in what they thought was a quite ordinary realm, is central to the (uncopyrightable) theme.
In the final analysis, without parsing any more works of fantasy or dredging up further examples from my misspent youth, my view is that Willy the Wizard’s complaint is weak. If it ends up before a judge who happens to know his fantasy fiction and has a good grasp of mythology, I think poor Willy might be headed for the dungeon.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.