This weekend, Harry Potter and the Deathly Hallows: Part 1 opened to the tune of $125 million at the box office. I expect you knew that already. But unless you are either a truly dedicated Harry Potter fan or a fake sports enthusiast, you might not have known that the fourth annual Quidditch World Cup recently concluded this month at DeWitt Clinton Park in New York City.
No, that was not a joke. People actually play Quidditch in real life. Lots of people, in fact.
Life imitating art. Also known as “Ground Quidditch” or “Muggle Quidditch,” the Quidditch World Cup provides an “alternative” athletic activity for students from over 400 colleges and 300 high schools (who probably feel thatUltimate has just gone way too mainstream, man). The event is organized by the newly-registered non-profit,Intercollegiate Quidditch Association. The IQA’s stated mission: to “promote Quidditch as a new sport and lead outreach programs to increase athletic participation among children and young adults and bring magic to communities.”
Fun Legal Questions
Muggle Quidditch invites a plethora of fun legal questions (hey, if some people can consider a game with literally 700 rules for running around a field while straddling a broom “fun,” why can’t I say the same about the legal questions their hobby raises?). For example, does J. K. Rowling have any rights in the sport or the revenues it generates? As IQA freely admits on its website, the “rules were adapted from J.K. Rowling’s Harry Potter novels by Alexander Manshel, the first Quidditch Commissioner.” (Did you know: the only person more powerful than the Quidditch Commissioner is the mayor of Albuquerque?)
Quidditch has already generated big bucks. In addition to Rowling’s Quidditch Through the Ages, which sold roughly half a million copies, EA Sports released “Harry Potter: Quidditch World Cup,” in 2003. Universal’s “Wizarding World of Harry Potter” theme park also jumped on the golden broomstick this year with Quidditch rides and games.
So does this mean that Rowling or Warner Brothers has a monopoly on all things Quidditch?
Copyright law protects expressions. Facts, such as a mere listing of ingredients (as opposed to accompanying explanations or illustrations) of a recipe fall outside the scope of copyright protection. Nor does copyright law protect ideas, concepts, principles, methods, processes, procedures, methods of operation, discoveries, and so on. As the Copyright Office has explained:
“Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.”
Rowling has exclusive rights to her particular description of Quidditch, but she does not have exclusive rights over Quidditch’s functional aspects. The features of a Quidditch field (i.e., the hoops and spacing of those hoops) are intrinsically functional. They do not convey information. Nor do they possess aesthetic features that exist independently of their utilitarian purpose. (Patent law is also inapplicable because the “invention” of Quidditch is fully described in theHarry Potter books which have been published world-wide.) Thus, while Rowling or Warner Brothers could probably block a live reenactment of a specific Quidditch scene from one of the Potter books (an activity which might be the only thing dorkier than playing Quidditch), neither Rowling nor Warner Brothers can assert rights to the game itself.
Even if Rowling or Warner Brothers can’t stop people from playing Quidditch, could either of them stop people from calling it that?
Trademark law might allow either Rowling or Warner Brothers to do just that. The pertinent question is whether there is likelihood of confusion caused by IQA’s use of the mark. And yes, it is a mark. In addition to licensing the “Quidditch World Cup” video game, Warner Brothers (predictably) has numerous registered Quidditch trademarks, encompassing everything from sporting goods (query whether a Nimbus 2000 broomstick is a sporting good) to lingerie (I don’t want to know either…). Is a Quidditch t-shirt sold by IQA (yes, IQA sells t-shirts) likely to confuse a consumer? Will the consumer think that J.K. Rowling or Warner Brothers licensed or manufactured the shirt? Sponsored the tournament? These are questions of fact — which, if litigated, would inevitably be decided by a judge or jury arbitrarily deciding between expert witnesses who have been hired by each litigant to carefully craft surveys designed to produce the desired results. Not that we’re cynical about the process or anything.
Then there’s the IQA logo. Look familiar?
Something tells me the IQA does not have the express written consent of MLB to use its intellectual property.
(Silly aside: While on Mr. Burns’ yacht in international waters, Homer Simpson proves to Bart that you can do anything out here: “See that ship over there? They’re re-broadcasting Major League Baseball with implied oral consent, not express written consent — or so the legend goes.”)
Indeed, just this year, MLB settled a trademark infringement lawsuit against Upper Deck in which MLB argued (among other things) that Upper Deck had purloined MLB’s “silhouetted batter logo” (shown above). Interestingly, however, the fact that consumers have long lived with the NBA and MLB’s co-existing red-white-and-blue silhouette logos may help IQA win a likelihood of confusion argument, if it can make the case that consumers have been trained by experience to distinguish between unrelated entities using similarly styled logos in different sports. (With thanks to Ken Basin for this insight.) Then again, why would the NBA or MLB sue the IQA at all? After all, the IQA is a “magical non-profit.”
Jack McCluskey at ESPN opined last year that a nonprofit Quidditch organization is one thing, but “any for-profit organization using likenesses or representations of copyrighted material, which Harry Potter and Quidditch are, would be quickly quashed by the rights holder, in this case Time Warner….” IQA is, of course, a non-profit.
But what if the IQA continues to grow?
According to Time Magazine, there are now “live streaming webcasts” for Quidditch games, which seemingly imbues them with a level of social prominence somewhere between March Madness and C-SPAN-aired congressional hearings. And as NPR reported earlier this month, a University of Maryland student has begun “waging a long-shot campaign for recognition from the National Collegiate Athletic Association.” (Sadly, Muggle Quidditch would probably only get coverage on ESPN 8 – the “Ocho”).
While it seems unlikely that the IQA or Muggle Quidditch will ever turn into a gold-mine worthy of significant legal action, you never know. After all, the IQA is a magical non-profit.
[Special thanks to Ken Basin for contributing to this article]