If college students are forming quidditch teams, should they be paying royalties to J.K. Rowling?
Is quidditch an original work of authorship fixed in a tangible medium of expression? Check. Is the work being performed publicly? It appears so. Check again. Do any relevant exceptions or defenses apply? Fair use is always worth a shot, but as the law stands now, and given the breadth of licensed Harry Potter merchandise, intercollegiate quidditch strikes me as a licensing market waiting to emerge. So fair use likely doesn’t apply. So long as college students don’t put on robes with names and numbers on the back — that is, so long as they stick to backyard quidditch — they are probably on safe ground. But once they take the pitch in real university-affiliated competition, or once the broom sponsorships start coming in, watch for Rowling to assert her rights.
[Via Critical Mass]
You can’t copyright the rules of a game or sport. The maker of a Tetris-clone, Quinn, recently dealt with some annoyingness from the owners of the trademark “Tetris.” As long as they don’t call it “Quidditch,” they’ll be fine.
That’s surely right with respect to a *real* game or sport. Quidditch, however, is an invented fictional sport, though one that bears obvious similarities to the real game of rugby. And quidditch, as expressed in the Harry Potter novels, is part of the fictional HP narrative. As the Copyright Office website explains:
I think that the copyright claim here is real, though (paradoxically) magical.
I’m with John, at least on the copyright point. They’re not re-enacting the Quidditch games from the books, which are (pieces of) a fictional work of authorship. They’re *playing* Quidditch. I don’t see how rules can be fictional. Are the rules of Monopoly fictional? You’re not REALLY trying to construct a rental monopoly.
See, e.g., Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D. Cal. 1938), where the plaintiff tried to claim that the defendant had copied his roller derby. The plaintiff claimed that the infringement was of a fictionalized roller derby which he had printed up in a pamphlet distributed at the races and which was used to illustrate the rules. But the defendant never staged *that particular derby*. Rather, the defendant just used similar rules. No infringement.
John, did the Tetris dispute produce a judicial decision?
At the risk of belaboring a trivial point, how are the Quidditch rules *not* fictional? Quidditch is an inherently impossible game, unlike Monopology, which is merely improbable. More precisely, the creators of Monopoly created rules (fiction, to be sure) so that real people could conduct their behavior accordingly. JK Rowling created the rules of Quidditch for the same reason that she created the rest of the Potter oeuvre: so that people would buy books, and copies of films, and videogames, and other licensed content. How is playing quidditch any different than a substantially similar live-action re-enactment of Harry’s encounter with the basilisk? Scrabble players have an implied license to “play” Scrabble; it doesn’t follow (at least it doesn’t follow to me) that readers of Harry Potter have an implied license to “play” Quidditch.
All that said, we may have stumbled upon a topic for a law review note. There is, I think, a dearth of literature that critically examines the black-letter maxim that there is no copyright in games. See, for example, Thomas M. S. Hemnes, The Adaptation of Copyright Law to Video Games, 131 U. Pa. L. Rev. 171 (1982), which was the only semi-recent citation that I could pull up in a thirty-second search. In the digital context, the scope of EULAs for MMORPGs suggests that gaming companies do, indeed, assert the right to control the power to play. And at least in the Eighth Circuit, they may have a point.
One additional point re MMORPGs — imho, while the game companies assert all sorts of things w/r/t player actions, that type of control, though dependent on copyright ownership for its ultimate authority, doesn’t turn the act of playing into a work.
The above is a follow-on comment to one that was held for moderation. The spam filter here only seems to like me half of the time.
I don’t think that I’m suggesting that the act of playing is itself a copyrightable work. I’m suggesting that the game itself, in the HP context, and including all of its rules, is both part of a copyrightable work (obviously) and a copyrightable work of its own (plausibly). “Playing” a copyrightable work (colloquially) or “publicly performing” a copyrightable (literary) work is copyright infringement.
I think that this a plausible way to frame the quidditch case, and while I’m no expert when it comes to MMORPG licensing, I think that my suggestion is consistent with the copyright owner’s claim in the Blizzard case. Note, of course, that I’m not suggesting that this would be a good or right outcome, and I’m certainly not inviting JK Rowling to come barreling into Vermont to put an end to college fun.
I see where you’re going now. I think there is a difference between playing Quidditch and performing Quidditch. A performance of a Quidditch scene from one of the books would, I think, raise a prima facie case of infringement. Playing the game of Quidditch is a different question.
Well, this is almost exactly what I’m working on right now, so I could go on for 40 pages. (And I have!) But I don’t think the rules of Quidditch are an independently copyrightable piece of the Harry Potter novels. I agree the cases here tend to be old and in need some re-examination. And the Hemnes article is excellent–your quick search was very efficient.
The rules of a game or a sport are like recipes — instructions for humans to engage in an activity that is not itself a performance of copyrightable expression. Playing the game by the rules is like making a cake; patentable, perhaps, but not copyrightable. I think the older cases are right on this point; where they go too far is in identifying games as primarily rules, which may have made sense when thinking of card and dice games (which was what was before them), but makes less sense for board games. One interesting question is how those cases might apply to video games — are the “physical laws” of the game uncopyrightable “rules”? But that’s a tangent.
To answer your question of how playing Quidditch is different from a re-enactment, consider two events. One depicts one of the Quidditch matches from the book — say, the one where Professor Quirrel curses Harry and Snape tries his counter-curse. That’s clearly a dramatization of a scene from the book. The goal of the performance is to convey J.K. Rowling’s expression to the audience. The second is a match between teams and players not featured in the book, that proceeds according to the spontaneous decisions of players attempting to win the match, rather than convey the descriptions of any events from the books. It’s not a dramatization of anything that happened in any novel. What is it infringing on?
There is some interesting confusion here, I think, created by the word “play” when used with respect to games. (See Allen v. Academic Games League of America, Inc., 89 F.3d 614, 617 (9th Cir. 1996).) A public performance of a dramatic work is called a “play,” and one can publicly perform a CD or video by “playing” it. But although the word is the same, “playing” a game or a sport is not a performance of a copyrighted work, because the central aim is not to convey expression to third parties, it’s to achieve a goal — winning.
Bruce,
All very right, and I agree, so long as the central aim of the “players” (lots of lovely ambiguities there) is to win, as opposed to associate themselves, and the audience, with the work. Are real-life quidditch “players” really trying to “win”? Or are they Trekkers on broomsticks, caught up a la Galaxy Quest in a reality of their own devising?
Both, I suspect.
Mike
Mike — Is it more important what the players intend to do or how the audience purchasing access to the game space reads the activity?
Bruce — I’d love to see a draft of it. I’ve been reading the non-legal play literature for awhile now and I find this particular question fascinating. (But, I should add, I’m not writing on it at the moment.)
Greg,
Great question. Can I rewrite my post, now that we’ve figured out what I was writing about?
Doctrinally, I think that the answer is “neither”; the question should be put to the jury, which evaluates the similarity of what they see, ostensibly from the point of view of a “reasonable” or “objective” observer. Yet inevitably, buried in that judgment is an implicit subjective account of the participants’ motivation. I used to live across the street from a parking lot where the local SCA chapter met once a week; my read was and is that the SCA were intending to enact pseudo-medieval scripts. They weren’t actually conducting swordfights and jousts. Which matters more if I judge that they are reproducing or performing scripts of an earlier era, but they think that they are competing for tribal supremacy? What about Trekkers who enact Trek as homage (or as their own odd ritual of tribal or celestial supremacy!), but are viewed as loser copycats? Back, obviously, to Galaxy Quest.
Fair use, I think, has more room for blending audience reads with performance intent (see the preamble and the first factor especially, and my William & Mary piece), but courts don’t always see the tension, at least not explicitly, and even when they do, that simply means that there’s a big possible disconnect between the infringement analysis and the defense. The best of all worlds is when “read” and “intent” align, and my guess — but this is only a guess — is that such planetary congruence occurs pretty frequently, but only because we share an extensive cultural radar. Either everyone gets the joke (fair use!), or not. The quidditch problem isn’t that quidditch itself is a meaningful copyright issue, but that it exposes the disjuncture in such an entertaining way.
Mike
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