Sunday, November 4, 2007

TUESDAY, NOV 4 UPDATE: Read interesting commentary here and here and trademarks and copyrights. This just gets more and more interesting!

More on the Warner Brothers lawsuit against the HP Lexicon here. I am really wondering if the issue isn't so much "copyright" as it is the "trademark" issue and that concerns me very very much on issues of free speech. Isn't the phrase "Harry Potter™" trademarked?

Do you see why we should be concerned?

And I'm sorry, but the "charity" stuff is marketing, it promotes the trademark. If J.K. Rowling was really interested in "charity" she'd follow Rick Warren's example live off 10% and give the rest of the money to charity. The rest is just marketing and it frankly makes me ill. To use "charity" to protect Warner Brothers control over the "trademark" and justify suing the HP Lexicon creator is just unbelievable. I know I'm supposed to be a Republican, but centralized power (be it government or corporations or 815) really ticks me off.

It didn't make sense to initiate lawsuits, except to either frighten fans or establish a precedent this isn't about making the world safe for Jo Rowling's acts of charity - this about controlling the use of a trademark and that is a freedom of speech issue.

Since we know Hermione Granger™ is a lawyer now, perhaps she would like to take on the case of defending the real people against the All Powerful Ministry of Warner Brothers (and the apparently polyjuiced™ author)? Oops, wonder if the word "Hermione Granger™" is trademarked too? Certainly "polyjuice™" must be. Or will be.

Remember back (was it 2002?) when Warner Brothers™ was zapping anyone that used "Harry Potter™" online (okay, I'm old enough to remember), especially the images (but it wasn't just the images, but the way) but also the words invented by J. K. Rowling? It was a public relationships disaster and there was a shift in marketing strategy to use the HP (is that going to be tradmarked as well?) fan websites to market the books and films.

Something has changed.

Remember how Rowling has used the word "invention" when she talks about the HP universe? She's an inventor (not a writer?) and that is a legal term,. She "invented" Harry Potter™. She invented all those other characters and the entire HP universe. Pity the fool to take on the Ministry of Warner Brothers.

Got to thinking this morning if the world of Harry Potter as we know it today is not so much a view of British bureaucracy but rather a quiet scream from Jo Rowling that The Corporation has taken over her life. It might be worth a re-read of the books to see if in fact, the books themselves are a satire and critical review of the very corporation that seeks to impose its will on the last person you'd expect to be AK'd off the planet - the reader.

We are declaring today Steve Vander Ark Day, November 1 - All Saints Day.


LATER (Nov. 5) - Statement from Steve Vander Ark from here.

Dear Friends,

I would like to thank each and every one of you for your support in recent days. Everyone here at the Lexicon, all volunteers, regrets the unpleasantness. We have always been interested in working with the publishers of the novels to satisfy their concerns, interests and needs and we certainly do not plan nor have we ever planned to publish anything which competes with Ms. Rowling’s fine literary capabilities. Our work has nothing to do with fiction writing and is only concerned with legitimate critical analysis and academic considerations. It has been widely approved and employed by Ms. Rowling herself.

My book was started in response to many, many people who talked to me and asked if there could be a print version of the Lexicon, not in some sort of attempt to profit off of fans. Because the material for the book was not only accepted but praised and used frequently by every entity concerned with creating the Harry Potter books, games, and films, I would never have thought that a print version could be judged differently.

I sincerely hope that this matter can be resolved amicably and ask for you patience and understanding during that process.


Steve Vander Ark
The Harry Potter Lexicon

EVEN LATER - Tuesday, Nov. 5

Interesting post over at Leaky, actually a post of a post of a post from the Wall Street Journal blog:


“Ah, the deja vu! Looking over Rowling’s complain to the court, I had a delightful flashback to days not so long ago when, defending myself in Seattle federal court, I took on what must be the second wealthiest literary property in the English-speaking world, that of J. R. R. Tolkien. Now there’s a remarkably similar case coming from what must be the wealthiest literary property on the planet.

There are the same nasty attacks, alleging illicit motivations on the part of defendants that the Rowling’s lawyers have no way of knowing. Consider them lies, because that’s what they were in my case. You should also consider flipping the allegations of greed around. Never, when lawyers are involved, neglect their enormous desire to bill as many hours as possible to a deep-pocketed client. There’s undoubtedly more greed per square inch in the Times Square offices of O’Melveny & Myers than there is at all of Michigan-based RDR Books (a company whose list of titles demonstrates a love of good literature)–much less the original source of the book at the fan website of

You can also see hints of that billable-hours greed in the rather pitiful attempt one of the Rowling’s lawyer makes to describe her books. A lover of great literature he is not: “Over the course of these seven books, Harry learns many new things, makes new friends, travels, and has many adventures.” That’s how a fifth-grader writes a book report. In this case that fifth-grader, now grown old and cranky, was billing Rowling perhaps $500/hour. That sort of pay will make almost anyone think they’re a literary genius.

Fortunately, in law, money doesn’t always win. The Tolkien estate must have spent close to a quarter of a million dollars trying to stop my book-length Lord of the Rings chronology, Untangling Tolkien. I spent some $4,000 to utterly vanquish them. Just before a judge would have responded to concurrent motions for summary judgment, they bailed out, offering in a letter to settle for a “few changes.” Three months later the judge changed their “little hope” to “no hope” by dismissing their lawsuit “with prejudice.” You can find my book on Amazon and traces of my fair use arguments to the court in the last chapter.

Lawyers can be strange. In the Rowlings complaint, there’s an attempt to put the billionaire Rowlings into the role of a struggling writer for whom every penny counts. Only a lawyer with a large, six-figure income would try to portray her as a victim, particularly since her stated rationale is nothing more than a monopolistic desire prevent any competition to an encyclopedia she wants to write. A good defense lawyer could make mincemeat of her claims there. Numerous copyright disputes have made it clear that no author, fictional or non-fictional, can silence critics. The public interest in that is so great, that in the Beannie Babies case a few years back, it cast aside a visual copyright to any commercial use of pictures of the collectable doll.

The biggest weakness in the RDR Book lawsuit may be that their book is too nice with her corpus. It should take a critical look at where her plot is weak and her characters unconvincing. My Tolkien chronology did that. His time line was remarkably accurate, but I do point out the few places he got it wrong. In the eyes of a court, an author (or in my case, Tolkien’s son Christopher), can’t be trusted to do that. And what matters with something as trite as collectable dolls, certainly matters for one of the bestselling books on the planet.

RDR Books also has one marvelous advantage that I didn’t have, the fact that much of their book has apparently been posted for years on a fan website with Rowlings and her lawyers doing nothing about it. Given the modest profit margins of most small publishers and the little or nothing that the contributors to this book will be getting, the “commercial” portion of copyright fair use will carry little weight before a fair court. By not enforcing her claims with websites, she’s virtually conceded them for a book. The downside of that is when lawyers see that, they’ll get nasty with fan websites. But then intellectual property lawyers are always getting into nasty little snits, all the more so when their cases are weak.

And that brings up Rowling’s primary advantage. The case has been filed in SDNY-the Southern District of New York, because there the court, operating cheek-and-jowl with powerful NYC publishers, is notoriously tilted in favor of rich copyright holders. It’s the intellectual property equivalent of lawsuits filed against giant corporations in obscure Marshall, Texas.

You see that bias in how Manhattan IP lawyers often act before judges. My opponent was so used to differential-to-plaintiffs SDNY judges, he blundered badly before the Ninth Circuit judge in my case. I still smile when I recall his attempt to tell the judge how she ought to rule in one of our disputes. He was on the phone from Manhattan. I was a few feet away from the judge and could sense her growing impatience. Needless to say, I won.

In my case, virtually all the decisions my opponents were citing came from a few 1998 rulings in the SDNY, decisions that have been soundly criticized in law journals and that, fortunately for me, do not bind a Ninth Circuit court. In the almost a decade since those decisions, no other circuit has bought the Second Circuit’s rather extreme claims about the reach of a fictional copyright (i.e. banning unauthorized reader’s guides). One Midwest court even dismissed the Second Court’s argument as “frivolous,” which indeed it was.

The one good thing about this dispute is that it may force the Second Circuit to recant its 1998 blunder. I had the counsel for a university press tell me that, since those rulings, his press has avoid publishing anything about popular, contemporary fiction. That’s precisely the “chilling effect” the fair use provisions of copyright law are intended to prevent.

–Michael W. Perry, author of Untangling Tolkien

P.S. I assert no copyright to these remarks, so Harry Potter websites are free to post what I’ve written here online. And if Steve Vander Ark would contact me through my website,, I’d be happy to offer him advice as someone who’s been through what he’s been through.”

Comment by Michael W. Perry – November 3, 2007 at 3:10 pm

Hmmm ... what do you think?

1 comment:

Anam Cara said...

HP is trademarked. It is a steak sauce. I'm surprised, now that I think of it, that they let Jo Rawling use it.