058: Harry Potter and the Colossal Lawsuit

Stella Case No. 058, Originally Published: 2 July 2003

The “Harry Potter” book series is a smash. With the fifth book in the planned seven-book series just published, author J.K. Rowling has gone from a single mother on welfare to the richest woman in the United Kingdom. By June of 2003 the first four books had sales of over 203 million copies.

The books’ American publisher, Scholastic, Inc., is so confident in the potential of book five, Harry Potter and the Order of the Phoenix, it ordered an initial print run of an “unprecedented” 8.5 million copies. It also worked up a $3–4 million publicity campaign to ensure huge quantities are sold in a frenzy of adolescent hype.

Unlike with most “big” books, Scholastic decided not to send out pre-publication review copies. Bookstores were told they could not sell any copies until one minute after midnight on June 21, ensuring huge lineups at the stores that were open — a perfect “photo opportunity” of anxious buyers to play into the massive publicity campaign.

In short, the publisher hoped to get total control over every bit of publicity being splashed out in every media outlet possible. It went off almost perfectly, but the key is the “almost.”

A health food store in New York City that has a small book section received four copies of the book. The owner says no one told him that he had to wait until June 21 to sell them, so he put them in his window.

Is it plausible that he was not warned? Yes: a full case of books was 10 copies, and the embargo warning was included on a sticker on the box. But he only got four, so it’s entirely possible that the distributor packed them in a different box without a sticker, meaning the store owner may not have ever had been given legal notice of the embargo.

In any case, a New York Daily News reporter, seeing the books for sale and realizing the obvious scoop potential, bought one of the health store’s books. On June 18, three days before the book’s worldwide release, the Daily News ran a review, along with a brief synopsis of the plot after warning, “If you don’t want to know anything about how Harry and his pals spend their fifth year at the Hogwarts School of Witchcraft and Wizardry, stop now and buy the book when it’s officially released Saturday.” The article was illustrated by a photo of the open book, showing two of its 800 pages.

Unfair! cried Scholastic, since a tiny aspect of its carefully orchestrated campaign was thwarted. The publisher and author immediately — the very day that the newspaper was published — filed suit in United States District Court in New York claiming the newspaper’s “blatant and willful violation” damaged “Rowling’s valuable intellectual property rights.”

Why would they do such a dastardly thing? Surely it’s not to inform the public on a story of very obvious interest, but rather it’s because the newspaper “seek[s] to deprive Rowling of her right and ability to control” her work. Those actions “have irreparably harmed the carefully orchestrated, multi-million-dollar marketing plans” the publisher made.

Continuing on, the lawsuit says “Scholastic and Rowling have worked hard to ensure that [the book’s] plot details and character development remain secret until the book’s official release” — conveniently leaving out the fact that Rowling had already leaked a blockbuster tidbit to the press: that a major character is “killed off” in the book. They charge that the newspaper’s “willful violation of the release embargo” somehow ruined their effort to keep everything “a surprise for eager fans to discover as quickly as they turn the book’s pages.”

For this, the lawsuit says, Rowling and Scholastic are “entitled” to $100 million in damages, plus “all gains, profits, and advantages” the newspaper derived from its “unlawful” actions.

The embargo isn’t a legally binding contract on anyone who does not agree to it. Bookstores that wanted to sell the book apparently were happy to make such an agreement. The newspaper, however, was not a party to it. For Scholastic and author J.K. Rowling to insist that it must comply with its marketing scheme isn’t reasonable, making the suit against the paper ridiculous. If they have a valid beef, it’s with the store which sold the book — and they have a plausible defense. What the little store doesn’t have is a plausibly deep pocket.

Scholastic was happy to get huge publicity in newspapers, but when it can’t control the content of one publication that was certainly not a party to its “embargo,” they whine the surprise is somehow ruined for readers the world over, because the article they wrote was not just in its newspaper, but also on its web site.

“We will vigorously defend any action and are confident we did nothing wrong journalistically or legally,” said a Daily News spokesman.

Scholastic bet $3 million they could control what every book store, newspaper, magazine and web site in the country could say, and when, about the new Harry Potter book — a country that guarantees freedom of speech and freedom of the press. They lost that bet. To think that creating such a plan, and spending millions to support it, entitles them to damages when a free press dares to print a review contrary to their schedule shows an incredible arrogance — as does their abuse of the civil court system to go “33 times or nothing” on their cynical bet.

Sources

• Multiple news sources, including “Harry Potter Publisher Sues NY Newspaper,” Reuters, 18 June 2003.
• “J.K. Rowling and Scholastic, Inc., v. New York Daily News,” Lawsuit filing, 18 June 2003.

Case Status

For a $100 million federal lawsuit which was supposedly filed (not just threatened), I can’t find any information whatever about what happened. I simply have to guess that it blew over, cooler heads prevailed, and the case was withdrawn …but it would still be nice to know for sure.

My 2021 Thoughts on the Case

Newsweek reported that the Reuters news wire was “spooked” by the lawsuit, and withdrew its story about the Daily News suit! Apparently the very story I used as a primary source for this case. Can you say “chilling effect”? As a publisher, Scholastic depends on First Amendment protections. For it to attack those rights is unconscionable and short-sighted.

Letters

The tragic case of the teen hit by a car brought a gigantic load of mail. This is just some of it.

Jack in Florida: “I have been in police work for almost 40 years. In Florida, if an officer waves for a driver or pedestrian to proceed, the officer becomes responsible for the driver or pedestrian’s safety — there is a law that states the driver or pedestrian is compelled to obey [the officer’s directions]. That law would not apply to another driver. Nevertheless, after observing the way that our society has descended into lawsuit chaos during my career, I have formed a defensive habit. Now that I am no longer a street cop, when I stop to allow another driver to enter the street in front of me, or to allow a pedestrian to do the same, I carefully avoid eye contact and move my hands to the bottom of my steering wheel where the driver or pedestrian cannot possibly see them.”

Many others have expressed similar sentiments. It’s sad, but certainly smart. But, again, the Nynex driver says he followed a similar concept: he did not wave the girl to cross.

John in Washington: “I found the Amy Woods story particularly interesting because it bears directly on my job. I drive a city bus in Seattle, and when I first trained for the job 21 years ago the instructors beat it into our heads that we weren’t to give any indication to a pedestrian we were stopping for that it was clear to proceed, at an intersection or otherwise, for the reason that was brought out in the story. They told us to just stop, so that’s what I do. The pedestrian invariably looks up at me waiting for the casual nod or hand signal and smile that say, ‘go ahead.’ But I just stop, without making eye contact or hand gestures. A not uncommon result is that the pedestrian isn’t sure why I’ve stopped, and they won’t cross. Eventually, after 15 or 20 seconds, I’ll just drive through, leaving them standing there waiting for another opening. It’s frightening to watch so many who do take advantage and cross, not look around the corner of the bus before stepping into the second lane. Once the bus stops, some will wave and give a great big smile, and blithely take giant strides across the street with no thought to hidden vehicles. In that situation I usually glance in the left mirror for oncoming cars and figure I’ll toot the horn to wake up the pedestrian. Even then, I somehow might be opening myself up to a lawsuit just by giving warning.”

Again, it’s sad that it’s necessary to act that way, but I sure wouldn’t suggest you do anything different.

Kris in Oregon: “Here at work, many employees park their cars in a parking structure across the street. We cross the street at a designated crosswalk with traffic lights. There are two lanes each direction on this road. Every day we see a driver be courteous. It’s always the inside lane driver that stops (while they have a green light, and the pedestrians have a Don’t Walk) and motions for all of us queued up in the center meridian to cross. 99% of us shake our heads ‘no’ and motion for the driver to keep going. I’d say most drivers are upset that their gesture was not accepted. It’s obvious they don’t understand the existence of the cars in the outside lane who do not see the pedestrians. A few times I’ve witnessed some daring idiot accept the invitation and walk out in front of the stopped car and continue on to the next lane. The drivers in the outside lane don’t see the pedestrian and we hear the screeching of tires, and sometimes a minor rear-end accident. Why would a pedestrian assume that the courteous act of one driver applies to all lanes? If a pedestrian walks out into traffic when ALL cars are not at a full stop and they get hit, the pedestrian was totally at fault. Yes, it was a terrible thing that happened to Amy. Unfortunately, it’s a painfully hard lesson that was learned at an early age.”

Several readers suggested people need to simply “follow the rules,” which includes not giving up Right of Way when it’s clearly yours.

Jan in California: “One of my BIG pet peeves is people directing traffic from inside their car. If you want to direct traffic, get out of your car, put white gloves on and wear a bright orange reflective vest. Almost daily on my bike rides I have people changing the traffic rules willy nilly, prompting me to go first. What they don’t see are the other cars in the lane next to them that are NOT stopping because they are following the rules. Then these so-called courteous drivers get bent at me because I’m not moving. I think the what you call ‘courteous drivers’ are a hazard to other drivers, pedestrians and bike riders. Let’s all work off the same sheet of music and follow the established rules of the road.”

Mark in Australia: “The reason we have road rules is for predictability. Stopping in the inside lane for no reason obvious to other road users is an unpredictable action. It would be nice if every other road user had the presence of mind to consider that O’Neil might have stopped to let pedestrians cross, but it’s not an expected action, courteous or not.”

Emergencies happen; O’Neil said he stopped because he thought the girls were going to step in front of him. That makes stopping not only reasonable, but a duty under the law. To sue him for waiting until it was safe for him to continue is outrageous.

Another driver zipped past him and hit Amy. I do find that driver partially at fault; he needed to slow down and find out why that van was stopped!

Cindi in Indiana: “It is a sad thing to see a child hurt and unable to live their life as they should be able to, but I was taught that there is this thing called ‘responsibility for our actions’. While it’s a terrible thing, why wasn’t the other driver paying more attention? If I saw a truck stopped in the middle of the road I sure as heck would have been slowing down to check out the situation. But having said that, did these parents never teach their daughter to never cross in the middle of the road? Isn’t that what crosswalks are for?”

Susan in Oregon: “I don’t know if it is more frustrating or sad that the Woods used the courts to find meaning in their loss. When did we stop grieving and start litigating instead? How can deep pockets and a monetary settlement console them for their loss? I’d be willing to bet that Amy would be ashamed of her parents’ actions. Mr. O’Neil did the right thing in stopping for the girls. He was only in control of his own vehicle. Perhaps if the Woods had taught the ‘look both ways before crossing the street’ rule their daughter would have known to look before she leapt into the next lane of traffic. I don’t want to live in a world where covering my own ass (for want of another word) takes priority over personal responsibility, courtesy and kindness to others. I send my condolences to the Woods for their loss, but taking it to the court because their daughter made a fatal mistake is just wrong.”

Meghan in Connecticut: “Ever notice that when a kid does something stupid, the parents are right there to move the focus away from the stupidity by blaming (and suing) everyone and everything in sight? The two girls strolled across the road at their leisure and surprise! There were CARS there! I see people every day that think they can just walk out in front of traffic and everyone’s going to stop for them. Whatever happened to looking both ways before crossing the road? Am I in the minority because I look and then actually WAIT until there’s enough time to get across? When I was in Driver’s Ed, we were taught that even should someone wave you on, check to see that it’s actually safe to do so first. What happened to Amy was a tragedy, but at some point the parents have to say, ‘Yes, my child was careless, and this is the result. Enough lives have been ruined already.’ Soon we’ll have to add a section to the driver’s manual on ‘Avoiding Common Lawsuits’ and it will indeed become ‘everyone for themselves’ on the road.”

Heather in Ohio: “As a mother of 3 young children aged 2–11, I have always stressed the personal responsibility that they need to have to cross streets, whether as a pedestrian, a bike rider, or a roller-blader. My little one is not allowed in a street or parking lot without holding a hand, and my older children know that they have to watch for cars versus cars watching out for them. I see children in my neighborhood that dash out in front of cars all of the time, with the attitude that ‘the car will stop’. Based on this alone, I have a lot of opportunity to reinforce the idea of personal accountability. As a parent I would be devastated if I lost a child in a senseless accident (where common sense on the part of the child was not used), but I would never blame anyone else for my child’s lack of judgment (other than myself for not teaching them better).”

Last, several had an observation similar to this, from David, a retired police officer:

David in Virginia: “Are you sure that the last name of the Massachusetts Court of Appeals justice in the case was spelled correctly? Instead of ‘Kafker’, it should be ‘Kafka’.”

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