The news that the stage play Potted Potter has come to Toronto should be something which causes the ears of copyright lawyers (and others interested in copyright law) to perk up. The show is described as “present[ing] all seven of J.K. Rowling’s iconic books in 70 minutes” – which certainly seems like something that should be within the exclusive purview of the owner of copyright in the Harry Potter books. (Section 3(1)(c) of the Copyright Act (Canada) provides that copyright includes “the sole right in the case of a novel … to convert it into a dramatic work”.)
But Potted Potter, which has evidently enjoyed “years of success all around Great Britain, Australia and New Zealand” bills itself as “unauthorized” – so what gives? Ignoring for the moment the efforts of the playwright duo behind Potted Potter to entice Ms Rowling to attend by keeping a seat open for her at every performance of the show, why is Potted Potter not being enjoined from taking place on the basis that the play constitutes an infringement of copyright?
Perhaps there is an additional clue in the remainder of the show’s subtitle: “The Unauthorized Harry Experience – A Parody by Dan and Jeff”.
“Parody” is one of those words that sets the hearts of copyright lawyers aflutter – particularly Canadian copyright lawyers. There is no “parody” defence to a claim of copyright infringement under Canadian copyright law: our statutory “fair dealing” mechanism only covers research, private study, criticism, review and news reporting. Indeed, so clear is the conclusion that parody is not a defence to infringement, that the government in Bill C-11 (The Copyright Modernization Act), the copyright-overhaul legislation which is currently trundling its way through Parliament, has seen fit to expressly amend the fair dealing section to add “parody” (along with “satire”) as an enumerated exception.
Which is all to the good: the addition of parody as a fair dealing category is almost universally supported. But that means we still don’t have an answer as to why Potted Potter is gracing Canadian floorboards. The lack of a parody defence, and the fact that Potted Potter is not being sued into oblivion despite its appearances on Canadian stages (and assuming that there is not some undisclosed arrangement in the background via which the copyright owners in Harry Potter have authorized the play), confirms that one of the intangible elements in any copyright analysis is always the disposition of the copyright owner to sue to enforce their rights. In this case, Ms Rowling (and her Canadian publisher, among others) have elected evidently not to sue – and so Potted Potter continues on at their sufferance.
That’s not an ideal situation, but then few things in life are. Given that almost everyone agrees that “fair dealing” should be expanded to include parody, it would be best if the statute was amended to expressly include it. But, even in the absence of such an amendment, parodic (and otherwise infringing) works are being created and even, as Potted Potter indicates, being commercially exploited (which means attracting significant investment amounts notwithstanding the potential threat of litigation). Providing legal advice in such a situation, where the law on its face does not allow for a course of action but there are real-world instances of that course being taken, is not impossible, but it’s certainly more difficult: it requires a finger-in-the-wind assessment of a potential plaintiff’s litigation proclivities, their potential indulgence of a friendly homage, the likelihood of a PR backlash against the plaintiff (and the plaintiff’s fear thereof) and the potential defendant’s abilities to withstand (or at least endure) the litigation process.