Rowling with the punches

<p><i>Next week the bitter legal battle between J K Rowling and a US publisher over the Harry Potter Lexicon will reach court&mdash;and the implications for publishers could be seismic. Tom Holman looks at the risks and rewards of unofficial tie-ins, from James Bond to the Olympics.</i></p>
<p>Unofficial tie-ins are big business. A glance at the shelves and shelves of spin-off titles relating to Harry Potter shows that the boy wizard has made money for many more authors and publishers than J K Rowling and Bloomsbury&mdash;and he is just one of thousands of hot properties on which publishers want to capitalise. Wherever a book, brand, character, film or TV series becomes popular, unauthorised guides or companions will not be far behind.</p>
<p>But in this shadowy genre, the line between commentary and passing off is a fine one. The vast majority of the Harry Potter spin-offs have either been published unchallenged or adjusted to the satisfaction of the small army of lawyers defending Rowling&rsquo;s copyright. But their patience snapped last autumn over the Harry Potter Lexicon, and the resulting complaint reaches a Manhattan courtroom early next week.</p>
<p>Actions like this are less common in the UK than in the US, where free-for-all litigation puts publishers at greater risk. But there have been enough cases over the past few years to make authors and publishers of spin-off books wary. A judgment against the Harry Potter Lexicon would only increase their nervousness.</p>
<p><b>Laying down the law</b></p>
<p>Most complaints against unofficial tie-ins stem from two distinct offences, both of which are alleged by Rowling: infringement of copyright and passing off. In the UK, the relevant legislation is the 1988 Copyright, Designs and Patents Act&mdash;but unfortunately for publishers wondering how far they can push their unauthorised books, it&rsquo;s very opaque.</p>
<p>The law requires publishers to seek permission when reproducing &ldquo;substantial&rdquo; parts of copyrighted material, but what it considers to be substantial is open to broad interpretation. The &ldquo;fair dealing&rdquo; provision&mdash;a common defence for unauthorised publishers that allows the use of copy&shy;right work for criticism or review&mdash;is also a difficult one for publishers of unofficial tie-ins to interpret.</p>
<p>Lorna Brazell, a partner and intellectual property specialist at law firm Bird &amp; Bird, emphasises that where and when material is published is as important as how.</p>
<p>&ldquo;The context is all&mdash;it depends on the specifics,&rdquo; she says. A publisher&rsquo;s own confidence that a book is within the law is not enough, since judges settling disputes try to consider whether an ordinary reader would be confused about the authenticity of a book. &ldquo;You need to be confident that you can justify it not just to yourself but to a judge and to the average person in the street,&rdquo; Brazell says.</p>
<p>So what does that average punter make of unauthorised tie-ins? Opinions differ. Mike Calder stocks plenty of TV and film spin-offs at the Transreal Fiction bookshop in Edinburgh, and sees fuzzy boundaries between them.</p>
<p>&ldquo;With some of the books, it&rsquo;s pretty difficult to tell the difference between official and unofficial, and I&rsquo;m not sure everyone notices the distinction,&rdquo; he says. Because unofficial tie-ins are often written out of passion by like-minded fans, they might even have a head start over official books put together by jobbing writers, Calder suggests.</p>
<p>One publisher involved in un&shy;official tie-ins disagrees, suggesting that endorsed books will always sell better because of the levels of promotion given to them: &ldquo;The main consequence of unofficial status seems to be that many people are put off buying them at all, either because they are under the misapprehension that they are somehow not above board or because they assume&mdash;wrongly&mdash;that the contents won&rsquo;t be as good.&rdquo;</p>
<p><b>Clear as mud</b></p>
<p>Among the media tie-in publishers baffled by copyright law is Tomahawk Press. The Sheffield-based independent knows the risk of publishing media spin-offs after its book The Battle for Bond&mdash;ironically covering the struggle for rights to Ian Fleming&rsquo;s work&mdash;drew an injunction from lawyers representing the author&rsquo;s estate, alleging infringement of copyright.</p>
<p>Tomahawk's m.d. Bruce Sachs says he was confident that the ma&shy;terial in question was covered by the fair dealing provision, but that he couldn&rsquo;t afford to risk court action. Instead, he opted to pulp the remaining copies.</p>
<p>&ldquo;Even if we were in the wrong, the money payable would only have been a few hundred pounds&mdash;but I&rsquo;d have been ruined by having to pay [the Fleming Trust&rsquo;s] legal costs.&rdquo; Cases like this indicate the problems faced by small publishers unable to afford to stand up for their books in court, he adds. &ldquo;It seems to me that might is more important in this country than right.&rdquo;</p>
<p><b>Patently no help</b></p>
<p>Sachs says the Copyright, Designs and Patents Act offers no help to publishers. &ldquo;The act is about as clear as mud. It&rsquo;s as if it was written by lawyers to help keep the money rolling in, and because it&rsquo;s so subjective there&rsquo;ll always be an element of risk involved in publishing these [unofficial tie-in] books.&rdquo;</p>
<p>Tomahawk will release a revised edition of The Battle for Bond in May, and Sachs says orders have soared since the controversy began.</p>
<p>Popular brands like Bond can often pose the greatest risk to companies wanting to publish around them. Another property that publishers are finding heavily defended is the Olympics. John Wiley is in negotiations to be the official publishing partner for the forthcoming Games in Beijing, Vancouver and London, but with this year&rsquo;s event drawing closer, the protracted licensing negotiations can cause headaches.</p>
<p>Wiley&rsquo;s associate editorial director Sally Smith sees the debate from both sides, having launched a 26-strong Unofficial Guide to . . . series, which includes a popular book on Walt Disney World. The series wears its unofficial status proudly on its covers, and Smith thinks that un&shy;endorsed opinions can sometimes be more valuable than approved material.</p>
<p>&ldquo;Whether it&rsquo;s best to be official or unofficial depends on the subject and audience,&rdquo; she says. &ldquo;For something like Disney, an official guide is always going to be largely promotional, so our insider tips will be very useful to readers. But for an event like the Olympics, there are obviously great advantages in being an approved partner and using the official logos and material.&rdquo;</p>
<p>Publishers involved in unofficial tie-ins admit that they walk a tightrope between fair dealing and passing off. But as long as you take care, it&rsquo;s difficult to be accused of infringement, according to one editor with wide experience of such spin-offs: &ldquo;To us the legal position seems quite straightforward&mdash;anyone can legitimately publish a factual book on any subject, provided they don&rsquo;t falsely attempt to pass it off as being officially sanctioned, and provided they don&rsquo;t make unauthorised use of any trademarks or copyright material.&rdquo;</p>
<p>His company is careful to stress the unofficial nature of a book on its cover, to avoid using photos or images without express written permission, and to avoid using trademarks and official logos altogether. Non-fiction books also need to avoid straying into fiction, or else they will expose themselves to the same claims of &ldquo;retelling&rdquo; faced by the author and publisher of the Harry Potter Lexicon, he adds.</p>
<p>David Hooper, intellectual property and defamation lawyer at Reynolds Porter Chamberlain, agrees that most publishers should be able to ensure they&rsquo;re on safe ground. &ldquo;Passing off is quite a difficult thing to establish,&rdquo; he says. &ldquo;Publishers tend to make it clear enough that a book is not official or authorised.&rdquo; Cases end up in court relatively rarely&shy; because any disputes can usually be settled by editing or altering sections or the appearance of a book to both sides&rsquo; agreement, he adds.</p>
<p>Brazell thinks it&rsquo;s always best to be cautious. &ldquo;The further off you stand, the safer you are.&rdquo; That means making it clear that a book is unofficial and unauthorised&mdash;and not just in small font on the back cover&mdash;and being careful with the way it is presented. Colour schemes, fonts, emblems, images or designs that are too close to those of the original could be seen as confusing by the average book buyer.</p>
<p>She adds that while infringement and passing off can seem like grey areas, it all boils down to common sense and integrity. &ldquo;Most people have a good idea of whether a book is within the boundaries or not. If you challenge them, they know in their heart of hearts if they&rsquo;ve crossed the line.&rdquo;</p>
<p><i>Unofficial tie-ins and copyright infringement will be among the subjects discussed at &ldquo;Winning the Non-fiction Battle&rdquo;, a seminar hosted by The Bookseller next Thursday (27th March). For booking details click </i><a href=""><i>here.</i></a><i>&nbsp;</i></p>