OPEN MEMORANDUM
ASSIGNMENT
You are a new law clerk for the Honorable Junichi P. Semitsu, a federal district court judge in
the Southern District of California. Your assignment is to assist Judge Semitsu by writing a
bench memo that summarizes the applicable law with respect to a motion for preliminary
injunction in the case of Scholastic Books, Inc. v. Harvard Lampoon and answers the legal
question posed by the facts.
Your assignment includes three steps: (1) a research assignment, (2) a substantive outline, and
(3) a final memorandum complete with parts. Each of these steps is described below.
Please keep in mind that no collaboration is allowed on any aspect of the Open Memorandum.
You may discuss this assignment with Prof. Semitsu, Liz, or Jordan, but you may not discuss any
aspect of it with anyone else, including your spouse(s), your pen pal, or your bowling coach.
I.
The Open Memo Research Assignment
Along with this memorandum, you should have also received the Open Memo Research
Assignment. Its goal is to have you find and read the legal materials that will ultimately form
the basis of your analysis in your Open Memorandum. The assignment requires you to analyze
your problem, devise a research plan, perform and log the research required to find the relevant
materials, and begin analyzing the law relevant to your problem. This Research Assignment
counts for 5% of your grade in this course.
The specific instructions are included in the Open Memo Research Assignment. This
Assignment is due in class, at the beginning of class, on Tuesday, November 4, 2008.
II.
The Open Memo Substantive Outline Assignment
At a later date, you will receive more details of the Open Memo Substantive Outline
Assignment. The goal is to have you outline the discussion section of your memo that will
ultimately form the basis of your analysis in your Open Memorandum. This assignment counts
for 5% of your grade in this course.
One hard copy of this assignment will be due at 9:45 am on Tuesday, November 11, 2008
via TWEN.
PAGE 1 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
III.
The Open Memorandum
After receiving brief feedback and comments from me on your outline, you will create a
beautifully polished Open Memorandum, complete with a caption, question(s) presented, brief
answer(s), a statement of facts, a discussion section, and a conclusion. Your final open memo
should be suitable for framing, or at least for use as a writing sample. It will count for 60 points
-- or 30% of your grade -- in this course.
You will receive more details about the assignment in the next few weeks. The due date for
your Open Memo will be Tuesday, November 25, 2008 at 5 p.m. You will upload the memo
to TWEN.
Good luck and please do your best to rock on with your bad selves.
Remember: Once you turn in your Open Memorandum, you’re finished with Lawyering Skills
for 2008!
PAGE 2 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
OPEN MEMORANDUM - FACT SITUATION
FROM THE DESK OF
THE HONORABLE JUNICHI P. SEMITSU
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
880 FRONT STREET, ROOM 4290
SAN DIEGO, CA 92101-8900
PHONE: (619) 260-4898
EMAIL: [email protected]
To:
From:
Date:
Re:
Section 16B/18C Law Clerk
Judge Semitsu
October 28, 2008
Motion for Preliminary Injunction in Scholastic Books, Inc. v. Harvard
Lampoon
Congratulations on being chosen as my temporary law clerk! Now that I’ve been
appointed to the federal bench, I thought it obvious that I steal you from our old law firm
and hire you as my first judicial law clerk.
Based on your superb closed memo that you handed in before I left the law firm, I hired
you to help me research and analyze all the issues that come through my courtroom
doors for the next year. I am counting on you to help me to get through my mounting
docket, advise me on difficult questions of law, and most of all, ensure that Downtown
San Diego's finest cup of coffee and glazed donut holes are on my desk every morning.
Your first assignment will be to write a bench memo that helps me understand and
analyze a specific legal issue presented by a preliminary injunction motion in the case of
Scholastic Books, Inc. v. Harvard Lampoon, Case No. 08-CV-1814.
Let me bring you up to speed: Harvard Lampoon is about to publish a book by author
Brutus K. West entitled Harry Pothead and the Stoned Sorcerer. The book purports to
parody the J.K. Rowling novel Harry Potter and the Sorcerer’s Stone, which is published
by Scholastic Books, Inc.
Scholastic and Rowling filed a motion for preliminary injunction to stop publication. I
have received briefs from both parties and conducted a preliminary hearing. I now need
to rule on their motion.
After carefully weighing the evidence, I have completed a tentative finding of facts and
legal conclusions, which is attached to these instructions. I also have the covers of both
books, as well as a short representative excerpt from each, which are attached as
Appendix A through D. Virtually all the facts are undisputed. I have not included a
PAGE 3 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
detailed analysis of the book excerpts, however, which I will leave to you to summarize
in your memo.
I now need to write an order and issue a ruling on the motion for preliminary injunction.
This is where you come in: I need you to help me arrive at a sound legal conclusion.
Based on my finding of facts, I'd like you to write a memo summarizing whether the
parody version of J.K. Rowling’s Harry Potter and the Sorcerer’s Stone constitutes a fair
use of the original. I need a thorough discussion of the law that analyzes how federal
authority requires I decide this case.
After examining the two books, I have no doubt that Harvard Lampoon’s parody has
made significant use of Rowling’s copyrighted work, and thus has violated Rowling’s
copyright. Defendants have effectively conceded this. However, I don’t know whether
Harvard Lampoon’s book might be a “fair use” of the original under the Copyright
Act of 1976. If it is, then Harvard Lampoon may be able to defend its use of Rowling’s
copyrighted publication and should be allowed to publish its book. Thus, you will need
to write a bench memo that evaluates Defendants’ fair use defense and offers a
conclusion as to whether I should therefore grant Plaintiffs’ request for a
preliminary injunction.
Although the parties have filed numerous documents with this court citing legal
authority, I'm not going to show those to you yet because I'd like you to start your
research from scratch. I don't want their legal arguments or their memoranda of points
and authorities to bias your analysis.
When analyzing the legal issue presented by this case, please consider the following:
1. Assume the truth of any facts included in my attached findings of fact. My
findings of fact are listed in no particular order.
2. Because I have not done much legal research related to the “fair use” defense, I
don't know what facts are relevant. Please do not assume that all facts are
relevant. Obviously, if any facts are irrelevant or inappropriately considered, I will
not include them in my actual Findings of Fact or any subsequent orders or
opinions.
3. My facts may not be written well, so please summarize the relevant facts in your
own words. Do not quote my writing; however, you can feel free to repeat quotes
attributed to specific parties. When you write your Statement of Facts, simply
summarize the most relevant facts. Also, please write your bench memo’s
Statement of Facts in paragraph format – do not number your sentences.
4. If you need to know any more facts or require any clarification, email me at
[email protected].
5. Do not discuss any issues of state law, First Amendment law, or any other
potential issues raised by any federal statute other than the Copyright Act of
1976.
PAGE 4 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
6. Stay objective. I am not asking you to serve as an advocate for either side. I
myself am not leaning in any direction, which, of course, is easy for me to say
since I have not read any relevant caselaw.
7. Again, for the purposes of your memo, please assume that Harvard Lampoon
and West violated Rowling’s copyright.
8. Please assume the following:
•
I know what a copyright is.
•
I know that “Harry Potter and the Sorcerer’s Stone” is a copyrighted book.
•
I know that this case is governed by the Copyright Act of 1976.
•
I know the “substantial similarity test” and I know that Harvard Lampoon’s
parody has made significant use of Rowling’s copyright work, and thus
has violated Rowling’s copyright.
•
I know the standards for when a motion for preliminary injunction is valid.
Specifically, in this case, I know that this court can grant injunctive relief if
it is deemed “reasonable to prevent or restrain infringement of a
copyright.”
•
I don’t know anything about the fair use defense under the Copyright Act
of 1976.
9. Beyond discussing the fair use defense, I do not need you to address whether a
preliminary injunction is otherwise valid. For this memo, simply assume that a
preliminary injunction is valid unless Defendants’ book constitutes a fair use of
the original.
10. As always, make sure that your cited legal authority is valid and, whenever
possible, binding. If there is Supreme Court or Ninth Circuit authority on point,
please rely on that. If there are other federal court decisions that you find highly
persuasive and relevant, feel free to rely on those. If you depend upon
persuasive authority, however, please ensure that there is no contradictory
binding authority. Do not look to any state court. Similarly, do not look to any
court outside the jurisdiction of the United States. Needless to say, do not cite
any unpublished cases or any decisions that have been overturned or no longer
constitute good law.
11. Keep in mind that cases involving parodies in non-copyright contexts may follow
an entirely different set of rules. Although there may be persuasive cases
involving parodies of trademarks, for example, please keep your focus on cases
involving parodies of copyrighted material.
12. Do not feel any need to read (or re-read) Harry Potter and the Sorcerer’s Stone.
Similarly, do not feel any need to read other Harvard Lampoon materials, watch
marijuana-related films, or consume illegal substances. I have provided you here
with all the necessary information for you to write a complete memo.
PAGE 5 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
13. Should you find any conflicting information about Harry Potter, J.K. Rowling,
Scholastic Books, or the Harvard Lampoon elsewhere, assume that the facts I’ve
given you are correct.
14. Be very careful and selective when citing to any secondary sources. In your
memo, please do not cite to any ALR annotations or CJS articles. (However, in
your research, you are strongly encouraged to look to these secondary sources
to help lead you to relevant primary authorities.)
15. By the way, if any new cases are published on or after Tuesday, November 4,
2008, you won't have to worry about incorporating them into your memo.
16. Most of all, remember that my goals are to (a) get the law right and (b) to not be
overruled by the Ninth Circuit or the Supreme Court.
I'd like a complete bench memorandum with a caption, the questions(s) presented, brief
answers, a summary of the legally relevant facts, a discussion section, and a
conclusion.
In your final memorandum, ensure that all legal citations conform to the Bluebook.
PAGE 6 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
JUDGE SEMITSU’S TENTATIVE FINDINGS OF FACT AND LEGAL CONCLUSIONS
United States District Court
for the Southern District of California
SCHOLASTIC BOOKS, INC. and J.K. Rowling,
Plaintiffs,
v.
HARVARD LAMPOON and Brutus Kanye West,
Defendants.
No. 08-CV-1814.
1.
Scholastic Books, Inc. (“Scholastic”) is a North American book
publishing company known for publishing educational materials for
schools, teachers, and parents, and selling and distributing them by
mail order and via book clubs and book fairs. It is the world’s
largest publisher of children’s books. It also has the exclusive
United States publishing rights to the Harry Potter book series.
2.
Plaintiff J.K. Rowling (“Rowling”) is an individual residing in
Edinburgh, Scotland. She is a world-famous author of the highly
acclaimed Harry Potter book series.
3.
Written for children but enjoyed by children and adults alike,
Rowling’s Harry Potter series chronicles the lives and adventures of
Harry Potter and his friends as they come of age at the Hogwarts School
of Witchcraft and Wizardry and face the evil Lord Voldemort. It is a
tale of a fictional world of good vs. evil, along with magical spells,
fantastical creatures, and imaginary places and things.
4.
Rowling published the first of seven books in the series, Harry Potter
and the Philosopher's Stone, in the United Kingdom in 1997. In 1998,
the first book was published in the United States as Harry Potter and
the Sorcerer's Stone.
5.
Over the next ten years, Rowling wrote and published the remaining six
books in the Harry Potter series: Harry Potter and the Chamber of
Secrets (1998), Harry Potter and the Prisoner of Azkaban (1999), Harry
Potter and the Goblet of Fire (2000), Harry Potter and the Order of the
Phoenix (2003), Harry Potter and the Half-Blood Prince (2005), and
Harry Potter and the Deathly Hallows (2007). Rowling owns a United
States copyright in each of the Harry Potter books.
6.
Each of the seven books cover one of Harry's seven years at Hogwarts
School of Witchcraft and Wizardry (“Hogwarts”). Over the course of
these seven books, Harry learns many new things, makes new friends,
travels, and has many adventures. He learns to hone his wizarding
skills, cast spells, make potions, and play new games, including
“Quidditch”, which he plays as part of the Gryffindor House Quidditch
PAGE 7 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
team at Hogwarts. He learns of the Sorcerer's Stone and the threeheaded dog that guards it, and battles Lord Voldemort. He travels in a
magic flying car, meets Cornelius Fudge, the Minister of Magic, and
visits the Leaky Cauldron pub. He attends the International Quidditch
Cup and competes in the Triwizard Tournament. He organizes Defense
Against the Dark Arts classes when the students are forbidden from
practicing magic, attempts to rescue his godfather Sirius Black from
danger and, along with his friends, battles supporters of Lord
Voldemort. All of these adventures culminate in a final, climactic
battle with the evil Lord Voldemort. Along the way, Harry faces the
transition into adulthood, falls in love, and experiences personal
tragedy with the loss of people close to him.
7.
Rowling testified that she intended for Harry Potter and the Deathly
Hallows to be the final book in the Harry Potter series, except for a
forthcoming encyclopedia of Harry Potter’s wizarding world that she is
penning for charity. Her latest writing projects involve short stories
and another children’s book, all unrelated to Harry Potter. While she
has no plans to write any sequels to the Harry Potter books, she
testified that she “can’t rule out the possibility of returning to the
series in a decade or so” and “would like to reserve that right.”
8.
The Harry Potter series has achieved enormous popularity and phenomenal
sales. The books have won numerous awards, including children's
literary awards and the British Book Award.
Thus far, Scholastic has
sold over 120 million copies of Harry Potter and the Sorcerer’s Stone.
All of the Harry Potter Books have spent many weeks on The New York
Times bestseller list and other prestigious bestseller lists,
demonstrating their enduring popular acclaim. Adults and children have
eagerly awaited each new book in the series and bookstores around the
country have stayed open late to accommodate the eager customers who
rush to buy the latest Harry Potter book at the stroke of midnight. The
final book, Harry Potter and the Deathly Hallows sold 8.3 million
copies in the first 24 hours of its release.
9.
There is no dispute regarding Rowling's ownership of valid copyrights
in Harry Potter and the Sorcerer's Stone, as well as the other six
Harry Potter novels. Plaintiffs introduced evidence of copyright
ownership in the form of registration certificates from the U.S.
Copyright Office, which constitute prima facie evidence of the works'
copyrightability and the validity of the copyrights. Plaintiffs also
introduced the declarations and testimony of Rowling concerning her
creation of the works and ownership of the copyrights in them.
10.
Defendant Harvard Lampoon is both a small publishing company and social
organization that seeks to publish a book entitled Harry Pothead and
the Stoned Sorcerer, which is the subject of this lawsuit. Formerly
located near Harvard Square in Massachusetts, its principal place of
business is now 5998 Alcala Park WH #122, San Diego, California.
Harvard Lampoon is known for its irreverent and humorous works
skewering American popular culture.
11.
Harvard Lampoon is best known for publishing a magazine, The Harvard
Lampoon, which is an undergraduate humor publication founded in 1876 at
Harvard University in Cambridge, Massachusetts. Published five times
yearly, The Harvard Lampoon is the world's longest-running humor
PAGE 8 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
magazine still in publication. Harvard Lampoon has also produced
occasional humor books, such as the 1969 J.R.R. Tolkien parody, Bored
of the Rings, as well as parodies of national magazines such as
Entertainment Weekly and Sports Illustrated. In 2006, the Lampoon
began regularly releasing content on a website, including pieces from
the magazine and web-only content. In October 2007, the Lampoon
launched a new design for its website: www.harvardlampoon.com.
12.
Harvard Lampoon is a private for-profit publishing company and is no
longer formally affiliated with Harvard University. Much of its
capital is provided by the licensing of the "Lampoon" name to National
Lampoon, begun by Harvard Lampoon graduates in 1970.
13.
Defendant Brutus K. West (“West”) is a prisoner in San Quentin State
Penitentiary. He is in the middle of serving a ten-year sentence for
violating the Federal Bank Robbery Act. During his first year in jail,
he read Harry Potter and the Sorcerer’s Stone and was inspired to write
a parody of the book.
14.
West testified that he based his publication on Rowling's copyrighted
work. He created the book by taking notes while reading the original
Harry Potter book and writing a chapter-by-chapter parody.
15.
In writing the book, West attempted to write a humorous parody of
Rowling’s children’s book that was “clearly not intended for children.”
He also wanted to offer real commentary on the inanity of our nation’s
strict and draconian drug laws by showing that “even Harry Potter
deserves to smoke pot every now and then without fearing legal
repercussions.”
16.
Defendants’ book draws about 200 manuscript pages worth of material
primarily from the 309-page book upon which it is based. Every chapter
title in Harry Pothead and the Stoned Sorcerer is loosely based on a
chapter title in Harry Potter and the Sorcerer’s Stone. For example,
Chapter 1 of Defendants’ book is “The Boy Who Smoked,” whereas Chapter
1 of Plaintiffs’ book is “The Boy Who Lived.”
17.
Defendants have conceded that Harry Pothead and the Stoned Sorcerer
copies or mimics a sufficient quantity of Harry Potter and the
Sorcerer’s Stone. However, Defendants’ book does not contain direct
quotations of the original. Most lines are wholly original, save for a
few that are loosely paraphrased. Defendant does concede, on the other
hand, that the book contains similar character names, plot details,
locations, and summaries of scenes from the original novel.
18.
Scholastic released the following plot summary of Harry Potter and the
Sorcerer’s Stone in its press kit to reviewers:
Harry Potter is a young boy who lives with his Muggle (nonwizard) relatives, the Dursleys. Harry does not yet know that he
is a wizard and that his parents were killed by Lord Voldemort,
an evil, powerful and cruel Dark Wizard. When Harry was just
one-year-old, Lord Voldemort also attempted to murder Harry.
However, Lord Voldemort’s curse rebounded and destroyed his own
body, leaving only a lightning-bolt scar on Harry's forehead.
PAGE 9 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
Shortly before Harry's eleventh birthday, Rubeus Hagrid, a
friendly half-giant, visits Harry to tell him that he is a Wizard
and has been accepted at Hogwarts School of Witchcraft and
Wizardry in the fall. Harry decides to leave the Dursleys and
attend Hogwarts. One month later, Harry takes the train to
Hogwarts from Platform Nine and Three Quarters at King's Cross
Station. On the train, Harry sits with Ron Weasley and is visited
briefly by Neville Longbottom and Hermione Granger. The three
become Harry’s closest friends.
Upon arrival to Hogwarts, the Sorting Hat places Harry, Ron,
Neville, and Hermione in Gryffindor House, one of the four houses
at Hogwarts. They soon meet Albus Dumbledore, the Headmaster of
Hogwarts, who is a powerful but kind wizard that soon becomes
Harry's confidant.
Shortly after school starts, Harry, Ron, and Hermione discover
that someone had broken into a previously emptied vault at the
Wizarding bank, Gringotts. The mystery deepens when they discover
a monstrous three-headed dog, Fluffy, that guards a trapdoor in a
forbidden passageway.
Soon after Harry receives his father's Invisibility Cloak, he
discovers the Mirror of Erised in an unused classroom, a strange
mirror which shows not just Harry, but Harry surrounded by his
entire family. Shortly thereafter, Harry learns about the
Sorcerer’s Stone, a stone that gives the owner eternal life.
Harry sees Hogwarts’ Professor Severus Snape interrogating a
colleague, Professor Quirrell, about getting past Fluffy, which
seemingly confirms Harry, Ron and Hermione's suspicion that Snape
is trying to steal the Sorcerer's Stone in order to restore Lord
Voldemort to power.
Harry, Hermione, and Ron set out to reach
the Stone first. They navigate a series of complex magical
challenges. At the end of these challenges, Harry enters the
inner chamber alone only to find that it is the timid Professor
Quirrell, not Snape, who is after the Stone. The final challenge
protecting the Stone is the Mirror of Erised. Quirrell forces
Harry to look in the mirror to discover where the Stone is.
Harry successfully resists, and the Stone drops into his own
pocket. Lord Voldemort now reveals himself; he has possessed
Quirrell and appears as a ghastly face on the back of Quirrell's
head. He tries to attack Harry, but merely touching Harry proves
to be agony for Quirrell. Dumbledore arrives back in time to save
Harry, Voldemort flees, and Quirrell dies.
19.
The cover of the original hardback book is attached as Appendix A.
excerpt is attached as Appendix B.
An
20.
Harvard Lampoon released the following plot summary of Harry Pothead
and the Stoned Sorcerer in its press kit to reviewers of the book:
Ever wonder what might have happened to innocent and pure Harry
Potter after he became an adult and went to college? Now you
can! Harvard Lampoon brings you the latest in its long line of
hilarious pop culture-skewing parodies: Harry Pothead and the
PAGE 10 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
Stoned Sorcerer by “J.K. Rolling,” which is the alter ego for new
author Brutus K. West.
In this imagined sequel to Harry Potter and the Sorcerer’s Stone,
Harry Pothead is an 18-year-old young man who has graduated from
Hogwarts School of Witchcraft and Wizardry. Now that he has
defeated the evil Lord Waldemart, he has nothing better to do
than to smoke marijuana and eat munchies with his friends, Chron
Weedly, Nicklebag Bongbottom, and Herbmione Ganja, while trying
not to get caught by wizard cops.
Shortly before Harry's 19th birthday, the half-giant Doobieus
Bagrid again visits Harry to tell him that he is a Wizard and has
been accepted at Bonghits College of Herbology in the fall.
Bonghits College is an elite institution of higher learning for
wizards. Harry and his friends decide to attend Bonghits. Harry
takes the Pineapple Express train to Bonghits from Platform Four
Twenty at Humboldt's Cross Station.
Upon arrival to Bonghits, the Snorting Hat places Harry, Chron,
Nicklebag, and Herbmione in the Spliffindor House, one of the
four fraternities at Bonghits. They soon meet Canibus
Doobiedore, the school’s Chancellor, who is a powerful but kind
wizard who warns Harry about the dangers of marijuana addiction.
Shortly after college starts, Harry learns that someone has
burned the Wizarding stash known as Greenpotts, which is the
source of all marijuana for the wizarding community. The mystery
deepens when they discover a monstrous three-headed narcotics
officer, Puffy, who ensures that every marijuana plant and seed
has been destroyed. With no marijuana left, pandemonium ensues
when the campus becomes filled with paranoid wizard addicts
attempting to find the stolen marijuana.
Dazed and confused, Harry is especially desperate for marijuana
since he uses it as herbal medicine to treat his glaucoma
troubles. However, he receives a major gift when he gets his
hands on his father's Invisibility Toke, an invisible water pipe
that can convert one readily available ingredient into marijuana.
However, the identity of the secret ingredient can only be
obtained from a secret wizard known as the Stoned Sorcerer.
Motivated for the first time in months, Harry and his friends
rush to find the Stoned Sorcerer. However, Harry overhears
Professor Severe Snop interrogating a colleague, Professor Nastia
Liuken, about where to locate the Stoned Sorcerer. This confirms
Harry’s suspicion that Snop is trying to find the secret
ingredient in order to have a monopoly on marijuana and thereby
control the entire wizarding world.
After navigating a series of complex challenges that include
finding a White Castle restaurant and scoring Aerosmith tickets,
Harry enters the inner chamber alone only to find that it is the
timid Professor Liuken, not Snop, who is after the Stoned
Sorcerer. When Professor Liuken forces Harry to look into the
Mirror of Rehab to quell his desire for pot, Harry successfully
PAGE 11 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
resists, points his wand at Professor Liuken, and casts a fatal
spell. The Stoned Sorcerer then reveals himself and turns out to
be none other than Chancellor Canibus Doobiedore, who confesses
to his drug addiction. When Harry explains to Chancellor
Doobiedore that the effects of marijuana are relatively minimal
compared to alcohol or crack, Doobiedore tells Harry that love is
the secret ingredient and issues a declaration legalizing
marijuana in the wizarding world.
Harry then uses his Invisibility Toke to produce enough marijuana
to last for several generations of wizards. He and his friends
in the Spliffindor House are heralded as heroes and celebrate by
baking pot brownies and taking hits from a giant nine-foot bong.
You’ll love the way that new author Brutus K. West makes fun of
the original and converts it into a literary stoner classic!
21.
The proposed cover of the parody is attached as Appendix C.
from Chapter 7 is attached as Appendix D.
An excerpt
22.
Rowling's literary agent first learned of Harry Pothead and the Stoned
Sorcerer when he saw an advertisement on the Publishers Marketplace
website announcing that Harvard Lampoon would be publishing a parody of
the first Harry Potter book. According to Harvard Lampoon’s own
statements in the ad, it had at that point already sold the rights to
the book in the United Kingdom, the Netherlands, Japan, Jamaica, and
Mongolia.
23.
Purportedly scheduled, at that time, for release in late September
2008, the ad listed the author as “Brutus K. West” and labeled the book
a “stoner parody” of the original Harry Potter book.
24.
Based on the description in the Publishers Marketplace advertisement,
Rowling and her agent became concerned that Harry Pothead and the
Stoned Sorcerer was designed to unilaterally misappropriate Rowling's
intellectual property rights for Defendants’ own financial gain. In
addition, Rowling and Scholastic were concerned that the book gave the
misleading and false impression that Rowling was associated with the
book, thereby casting an ugly R-rated stain on the innocent nature of
the original children’s series.
25.
Prior to filing this lawsuit, Plaintiffs contacted the Harvard Lampoon
numerous times in an effort to discuss the issues arising from
Defendants' publication of the infringing book. Defendants, however,
completely ignored Plaintiffs' multiple “cease and desist” letters.
26.
At the time Plaintiffs initiated suit, on July 31, 2008, Harvard
Lampoon was mere weeks away from distributing the initial run of Harry
Pothead and the Stoned Sorcerer. Thus far, however, no copies have yet
to be sold or distributed to bookstores. However, Defendant printed
over 100,000 first edition copies of the book with a retail price tag
of $15 per book. If allowed to proceed with publication, Defendant
expects that it will sell all 100,000 copies and do a second printing
since this case has generated substantial publicity of and interest in
the book.
PAGE 12 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
27.
At the preliminary injunction hearing, Plaintiffs presented expert
testimony that Defendants’ book could impair sales of Rowling’s books.
Plaintiff’s expert noted that customers could be confused since the
cover images, font, and title are similar to the original. She also
testified that the listed author’s name “J.K. Rolling” might confuse
customers into thinking that J.K. Rowling was involved. Moreover, she
said that West’s book could compete directly with, and impair the sales
of, any future books that Rowling may write about Potter’s life in his
college years.
28.
Defendants’ expert rebutted this evidence by testifying that
publication of the book was unlikely to affect the sales of any book
that Rowling has published or might one day publish. The expert noted
that Harvard Lampoon has a rich tradition of parodies and believed the
public would understand that Defendants’ book is in no way connected to
Rowling.
29.
Plaintiffs filed this lawsuit seeking injunctive relief under the
Copyright Act of 1976 and damages that they have suffered as a result
of Defendant's activities. Plaintiffs intend to donate any monetary
award that may result from Defendant's activities prior to an
injunction being entered to charity.
30.
Defendants have effectively conceded that Plaintiffs have shown a prima
facie case of copyright infringement. However, they argue that Harry
Potter and the Stoned Sorcerer is nevertheless a fair use of the first
Harry Potter novel.
31.
This court has federal question jurisdiction over these claims pursuant
to 15 U.S.C. § 1121, and 28 U.S.C. §§ 1331, 1338(a) and 1338(b). This
court has personal jurisdiction over Defendants because Plaintiffs
allege Defendants have committed a tortious act both within and outside
the State of California through the sale of the infringing book, which
will be available nationally through traditional and online retailers,
causing injury to Plaintiffs. Venue is proper in this district
pursuant to 28 U.S.C. §§ 1391(b) and 1400(a).
PAGE 13 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
APPENDIX A: COVER OF HARRY POTTER AND THE SORCERER’S STONE:
PAGE 14 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
APPENDIX B: EXCERPT FROM HARRY POTTER AND THE SORCERER’S STONE:
CHAPTER SEVEN
THE SORTING HAT
The door swung open at once. A tall, black-haired witch in emerald-green
robes stood there. She had a very stern face and Harry's first thought
was that this was not someone to cross.
"The firs' years, Professor McGonagall," said Hagrid.
"Thank you, Hagrid. I will take them from here."
She pulled the door wide. The entrance hall was so big you could have
fit the whole of the Dursleys' house in it. The stone walls were lit
with flaming torches like the ones at Gringotts, the ceiling was too
high to make out, and a magnificent marble staircase facing them led to
the upper floors.
They followed Professor McGonagall across the flagged stone floor. Harry
could hear the drone of hundreds of voices from a doorway to the right
-the rest of the school must already be here -- but Professor McGonagall
showed the first years into a small, empty chamber off the hall. They
crowded in, standing rather closer together than they would usually have
done, peering about nervously.
"Welcome to Hogwarts," said Professor McGonagall. "The start-of-term
banquet will begin shortly, but before you take your seats in the Great
Hall, you will be sorted into your houses. The Sorting is a very
important ceremony because, while you are here, your house will be
something like your family within Hogwarts. You will have classes with
the rest of your house, sleep in your house dormitory, and spend free
time in your house common room.
"The four houses are called Gryffindor, Hufflepuff, Ravenclaw, and
Slytherin. Each house has its own noble history and each has produced
outstanding witches and wizards. While you are at Hogwarts, your
triumphs will earn your house points, while any rulebreaking will lose
house points. At the end of the year, the house with the most points is
PAGE 15 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
awarded the house cup, a great honor. I hope each of you will be a
credit to whichever house becomes yours.
"The Sorting Ceremony will take place in a few minutes in front of the
rest of the school. I suggest you all smarten yourselves up as much as
you can while you are waiting."
Her eyes lingered for a moment on Neville's cloak, which was fastened
under his left ear, and on Ron's smudged nose. Harry nervously tried to
flatten his hair.
"I shall return when we are ready for you," said Professor McGonagall.
"Please wait quietly."
She left the chamber. Harry swallowed.
"How exactly do they sort us into houses?" he asked Ron.
"Some sort of test, I think. Fred said it hurts a lot, but I think he
was joking."
Harry's heart gave a horrible jolt. A test? In front of the whole school? But he
didn't know any magic yet -- what on earth would he have to do? He hadn't
expected something like this the moment they arrived. He looked around anxiously
and saw that everyone else looked terrified, too. No one was talking much except
Hermione Granger, who was whispering very fast about all the spells she'd learned
and wondering which one she'd need. Harry tried hard not to listen to her. He'd
never been more nervous, never, not even when he'd had to take a school report
home to the Dursleys saying that he'd somehow turned his teacher's wig blue. He
kept his eyes fixed on the door. Any second now, Professor McGonagall would
come back and lead him to his doom.
PAGE 16 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
APPENDIX C: COVER OF HARRY POTHEAD AND THE STONED SORCERER:
PAGE 17 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
APPENDIX D: EXCERPT FROM HARRY POTHEAD AND THE STONED SORCERER:
CHAPTER SEVEN
THE SNORTING HAT
Harry Pothead was as excited as a little girl to follow a line of young
college-age wizards into the famed dining hall in his new school, the
Bonghits College of Herbology, where drug use was illegal but rampant.
Harry and his new classmates were following Bagrid, the group leader,
who was riding a horse as if he were in a horseback musical.
Like the others, Harry was excited to be at a school very different from
the strict and clean atmosphere of his former school. He was excited to
be living away from home, for the first time, as an adult. Instead of
cramming for a week for a Defense Against the Dark Arts test, Harry
suspected that the only kind of test he would be preparing for would be
a urine test.
But his joy abruptly ended when Bagrid jumped off his giant horse and
opened the door to the hall. An intimidating, humorless witch in leafgreen robes stood there looking over the group. She had very bloodshot
eyes -- not from over-puffing, but rather, from over-huffing in anger.
Bagrid introduced the crowd to her: “Professor McStickyicky, this is our
new frosh class.”
“Thanks, Bagrid. Now piss off. I will take over from here.”
The dining hall was so monstrous that you could fit several greenhouses
inside it. The walls were lit with flaming torches that looked like giant
marijuana cigarettes. And all around were black lights, flat screen TVs
showing cartoons, speakers blasting the latest Cypress Hill album, and
enough munchies to last a lifetime.
Professor McStickyicky led the group toward the other end of the hall
until Chron’s older brother, Buddy Weedly, stumbled in their path. He
was frantically attempting to snuff out the flames of his shirt, which he
PAGE 18 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
accidentally lit on fire after falling asleep with a burning joint in his
hand.
Buddy yelled, “Help! Call me an ambulance!”
His twin brother Marley replied, “You’re an ambulance!”
Harry, Chron, and Nicklebag giggled, while Herbmione clearly looked
disappointed in the Weedly twins’ sophomoric behavior.
Using his hands to put out the flames, Buddy said, “No really, help me.
My roach ash burned my shirt.”
Always ready with a witty quip, Marley retorted, “Now that’s what I
call a pot hole!”
Everyone in the group laughed except Professor McStickyicky, who used
her wand to snuff out the flames and cover their mouths with duct tape.
“That’ll be enough of you two.”
The march to the other end of the dining hall continued. When the
group had arrived at their destination, Professor McStickyicky said,
“Welcome to Bonghits. Our orientation feast will be served shortly, but
before you take your seats, you will be sorted into fraternity houses.”
Harry and his classmates weren’t sure whether to be excited or worried.
“Oh dear, were we supposed to have rushed the fraternities before
today?” asked Herbmione.
Nicklebag quickly followed: “Will I be hazed?”
“Silence!” demanded Professor McStickyicky. “Surely you numskulls
remember the Sorting Hat from your secondary education. Well, at
Bonghits, we have a Snorting Hat that decides what house each of you
will join.”
“A Snorting Hat?” asked the new students, in unison.
PAGE 19 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
“Yes, the Snorting Hat snorts a magical dust that gives it a vision as to
what co-ed frat house you belong to. The four houses are called
Spliffindor, Rastaclaw, Slytherweed, and Hufflepuff. Each house has its
own unique traditions. Rastaclaw is famous, for example, for their Beer
Pong and Paddling Nights. While you are a student at this esteemed
institution of higher learning, your good deeds will earn you frat points,
while any broken rules will cost you points.”
Chron snickered and muttered under his breath, “Huh huh ... higher
learning.”
But nothing got past Professor McStickyicky’s powerful ear. “I heard
that Mr. Weedly. That’ll be 10 points from whatever house you join.”
Chron looked horrified and melted toward the floor.
McStickyicky continued, “At the end of the year, the house with the
most points is awarded the Hookah Trophy, a great honor. Now then, I
shall return in a second. I suggest you mentally and physically prepare
yourselves.”
After she left, Harry asked Chron, “So how do we get sorted into
houses?”
“I don’t know, but Buddy said it involved an obstacle course where
you’re running from fake narcotics agents who are shooting at you.”
Harry nearly had a heart attack. Running from armed narcs? Harry
knew he was famous for being the savior of all wizards. But it had been
months since he had done any form of exercise. He spent the last few
months on a couch, watching Teletubbies, all while high as a kite. Ever
since killing Lord Waldemart, he gained 40 pounds from a nonstop diet
of hash browns and Cheetos. He had no idea that any tests of physical
exertion would be involved once he was in college.
Everyone else also seemed panicked except Herbmione who was
stretching and attempting complicated yoga poses.
PAGE 20 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C
After being heralded as “The Boy Who Lived” and saving the world,
Harry knew that Professor McStickyicky would launch a new era in
Harry’s life: Harry Pothead, the loser.
Thankfully, Herbmione interrupted Harry’s panic attack.
“Harry, get a grip. We’re in college now. You realize this isn’t going to
be like our secondary school education, right? We’re adults now. And
you’re just paranoid because you’ve gone 24 hours without visiting our
friend Mary Jane.”
Herbmione used her wand to create a joint and handed it to Harry.
“Inhale, my friend.”
PAGE 21 OF 21 * OPEN MEMO ASSIGNMENT * FALL 2008 SEMESTER * PROF. JUNICHI P. SEMITSU * SECTIONS 16B & 18C