It's not a new story, a big production company coming after fan-crafters as they peddle their fandom inspired wares, but will the Warner Bros. suit against the Los Angeles Based Whimsic Alley have a bigger impact on fan art?
On November 21, Warner Bros. and Whimsic Alley settled after a permanent injunction was filed against Whimsic Alley owner Stanley Goldin. For those not in LA, Whimsic Alley is a Harry Potter inspired wizarding market complete with a wand shop and a great hall. The store offers day camps and magical parties, and has been host to several Yule Balls and the LA based Stan Lee’s Comikaze preview party.
While Goldin sells a significant array of licensed products, he also sells some fan crafted items. It appears that this is what Warner Bros. is taking issue with. The injunction states that Stanley has 60 days to phase out said items and is “…hereby restrained and permanently enjoined from all use and display of any reference to any HARRY POTTER mark, HARRY POTTER trade dress, and any mark or trade dress confusingly similar thereto in Whimsic Alley Store or website.”
Though Goldin had been warned before (Goldin was not available to make a statement on either suit), in 2004 Warner Bros. filed a similar suit the result of which was that Goldin was prohibited from selling non-licensed items (Anything mass produced, or over 200 items a year). The sweeping nature of this injunction could impact the Geek crafting community outside of the Harry Potter fandom as well.
The wording “confusingly similar” can mean literally anything that might be confused for something Harry Potter related, meaning even a basic black Halloween wizard’s robe could get Whimsic Alley’s doors shut for good.
While some local Harry fans are not terribly upset by the news – Goldin having made something of a bad name for himself by taking crafters designs and having them made by others to cut costs – they may not be happy with the potential impact on their favorite Etsy shops.
Goldin is not the first to be targeted by production companies defending their copyrights against fans audacious enough to allow their art to be inspired by their fandoms. Earlier this year Fox started sending out cease and desist orders to independent crafters making their own versions of the well-recognized Jayne Cobb hats of Firefly fame, which resulted in the closing of fan run Etsy shops.
While the rumor mill pointed fingers at Think Geek, which sells a licensed version of the hat, Think Geek posted a statement on their site assuring Browncoats they had nothing to do with the cease and desist orders, and that “the way we (Think Geek) see it, if people want to make their own, shiny. For those who can’t knit to save their gorram lives, we can help”
Not a resounding support of the fan community, but not surprising considering licensed items are Think Geeks bread and butter.
While Goldin can also fall back on sales of licensed products, as the injunction does not prohibit him operating a shop that sells Warner Bros. trademark items, it would not be so easy for those independent crafters whose businesses are entirely made up of their own artistic interpretations of their own respective fandoms.
“I guess it comes down to how deep the pockets of WB are and how much they want to crush the little guy. I realize that Stan Goldin isn’t really a little guy, but if he is the first and WB wins then all fan art is in jeopardy. Not just the HP replica stuff, but all wands, robes, hats, etc. since they are similar in style and directly compete with the WB Harry Potter brand. Sadly, we will make something until we’re told to stop and then we have to move on,” Said Aki Arnson, proprietor of Animehot, whose crafting is her sole source of income.
Those who create things less obviously similar are less worried. Tanya Mueller of Heroine Habit, which specializes in fan inspired head wear from Marvel to Harry Potter, had this to say:
“The items I make are very vaguely related to HP (Harry Potter) so I can change the names and not relate it to (the items listed in the lawsuit). As far as my stuff goes, I’m not really too worried about it… Technically, if I am making a profit off their licensed merch they have every right to come after me””
At what point does a person’s own creation infringe upon a copyright when the idea that anything “confusingly similar” might be out of bounds? When is a lightning bolt more than a lightning bolt? Will Hogwarts House colored scarves be next on the chopping block? Only time will tell.
Images: 20th Century Fox, Warner Bros,