When does pop-culture homage cross the intellectual-property line?


To unsuspecting customers at Bad Owl Coffee in Henderson, the sign identifying Platform 9 6/8 must seem pretty random. But fans of a certain boy wizard—and perhaps regulars dating back to Bad Owl’s start—might give it a double-take, since it once read Platform 9 3/4, the hidden train stop accessible only to Harry Potter and his fellow Hogwarts School students.

The marker’s glibly expanded fraction also suggests the coffeehouse might have crossed some intellectual property line. Though Bad Owl’s owners didn’t respond to our messages, a source tells the Weekly he was told during a visit that the legal team of Time Warner, which owns the copyright to the Potter films, contacted the business shortly after its February opening. A second sign that used to herald Hogwarts Express now reads Bad Owl Express, another tipoff.

It isn’t the first instance of a local eatery, coffeehouse or bar alluding to someone else’s intellectual property, especially when it comes to naming menu items. And part of the appeal of places like fellow Southeast coffeehouse Grouchy John’s and Downtown’s Millennium Fandom Bar (which actually boasts a Golden Snitch used in a Harry Potter film) is the atmosphere created by artwork, toys and memorabilia related to fantasy/sci-fi franchises.

According to W. West Allen, a partner at Howard & Howard law firm, the latter is safe under the first-sale doctrine. “If I stick my Millennium Falcon in the corner of my restaurant with other stuff, I won’t get into trouble,” he says. “It won’t look like I’m sponsoring anything.” But, he says, establishments must exercise caution when it comes to the former practice. Artwork inspired by movies, TV and comics might be permissible, but context matters—especially when it comes to a commercial operation owned by someone other than the copyright or trademark holders.

Furthermore, courts have been known to permit de minimis, or minimal, use, like in the case of song samples less than a second long. “It may come up when I use a word on my menu that could be interpreted as being from a book,” Allen says. “But if the entire restaurant is immersed in that book, there could be [grounds for legal action].”

If lawyers did speak with Bad Owl management, it’s likely both sides agreed on the sort of adjustments and vague references now seen in the shop, as a small business inspired by Harry Potter—and there are at least a handful in the U.S. alone—might literally not be worth much to even a litigious copyright/trademark holder. “I always thought that someday, Disney would say, we need to talk,” Grouchy John’s co-owner JJ Wylie says. “But I’d take that as a sign of success. And who wants to spend time and energy going after us?”

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