Intellectual Property: When can you host a party and NOT offend Warner Bros?

Last Halloween's news that lawyers for Warner Bros wrote a 'cease and desist' letter to Ms Marmite Lover, a single Mum in the UK, who was planning to host a Harry Potter themed dinner party (complete with butterbeer and pumpkin soup) received worldwide media coverage, perhaps focussing on the irony of the former single Mum, JK Rowling, seeking to restrain another single Mum from eking out an existence or just being the "fun police". However the story raises some interesting questions: Can you host a Harry Potter party without offending any of JK Rowling's IP rights (or those of the movie studios and other rights holders)?

This story highlights some of the fundamental weaknesses in the creation and enforcement of IP rights when measured against commercial exploitation. No one would deny that blatant "stealing" of IP should be discouraged (music and movie copying is widely accepted as socially unacceptable as well as of course illegal), but when is a passion for a fictional character, and the hosting of a party for like minded souls, exploitation or abuse of the underlying rights and when does it arguably enhance the profits of the rights holders. Looked at another way, when does the hosting of Harry Potter gatherings actually increase sales of legitimate paraphernalia and enhance the value of the IP and when does it harm it?

The story casts a somewhat wider net and introduces issues of brand damage under the banner of brand protection. That is, has taking this action sent the message: Warner Bros will vigorously enforce its IP rights and thereby increased the brand value; or has it damaged the Harry Potter brand by unreasonably cracking down on people's obsession with the character and thereby reducing demand for it and its associated merchandise.

IP laws themselves are of course agnostic to these questions and themed party throwers should at least be aware of their legal position.

Wizards and the Law

While the "offending" Harry Potter dinners were on a small scale and not designed to return a great profit, they were at heart a commercial venture. The danger is that parents of wizard-obsessed children may mistakenly believe that the rights of Warner Bros and J K Rowling were trying to assert in the case of a commercial venture would also apply if they want to throw a Harry Potter themed party for their child. In fact, under Australian law the legal protection given to a famous fictional character such as Harry Potter can vary depending on...