Friday, December 5, 2008

The best of all worlds: The Harry Potter Lexicon will be published - finally - next month

All four hundred and something pages.

We're thrilled for Steve, who has been caught in the crossfire between his publisher and Warner Brothers lawyers. Warner Brothers and J.K. Rowling's lawyers sued the publisher, RDR Books, over the publishing of the Harry Potter Lexicon, an encyclopedia - published for years online by Steve Vander Ark and even used by J.K. Rowling, as she has said publicly, while writing her own books (and, in happier and less litigious days, awarded Steve Vander Ark her one of her first fan site awards after the launch of, her official website).

When it went to book form, the lawsuits started flying and war broke amongst HP fans to rival any sort of war we might see - or not see - in the wizarding world. It's not been pretty. While Warner Brothers was not successful in its pursuit of a more rigid restriction of commentary using an argument for the protection intellectual property (i.e., increasing the scope of trademark law to include not only particular images, but also particular words "invented" by J.K. Rowling), as well as challenging the publication of works that have been long online when they went into print, it was successful in putting a red light on the publication of the original text of the Lexicon for the print version (but not the online version). However, the judge gave a green light to RDR books that if revisions were made, the Lexicon could be published.

Those changes are now completed (and it looks like from initial reports for the better) and a green light from J.K. Rowling's lawyers has been granted, we can expect to see the newly revised Harry Potter Lexicon in January. We raise our glasses of Butterbeer in honor of Steve's work, a celebration of J.K. Rowling's amazing achievement, and look forward to getting our own copy next month.

The best of all worlds.

The Harry Potter Lexicon will be released on January 12th 2009.

Here's more on the story:
We think it's a better book in many ways because it has a lot more analysis," said Roger D. Rapaport of Muskegon, whose RDR Books is publishing The Lexicon. "He's done an amazing amount of new work."

Rapaport, Vander Ark and their team of lawyers -- including Craig Monette of Muskegon -- are confident this version of The Lexicon will pass legal muster. (The cover was negotiated by both sides to avoid a separate planned trademark lawsuit.) The book is set to be released on Jan. 12 in the United States and England.

For $24.95, readers can get a treasure trove of background information about the Harry Potter series that Vander Ark, who calls himself "just a librarian," culled through years of research. They'll get not only an index of characters, but background on them, the reasons behind their names, the folklore and mythology behind the creatures they encounter and much more.

"There's so much depth to her writing," Vander Ark said. "It makes a book like 'The Lexicon' enhance her work."

A fan of the Harry Potter series, which he has read dozens of times, Vander Ark said he doesn't give away any of the plots, but entices readers to re-read the books for more meaning and to make connections they may have missed.

He said it will be especially appealing to Harry Potter fans who have read the series and "who have a sense there's so much more there."

He culled information from interviews and articles Rowling has written as well as a great deal of "literary detective" work.

In suing RDR Books over "The Lexicon," Rowling claimed it took away from her own plans to write a reference guide to her series. But the judge, in the first-ever opinion on the legality of reference books based on other literary works, said there was nothing inherently wrong with writing "The Lexicon," Rapaport said.

But he ruled against RDR Books because Vander Ark had used descriptions and wording too close to Rowling's and inappropriately used material from two guide books she had written about the series.

Using the judge's very detailed, 68-page ruling, Vander Ark said he was able to rewrite his book to comply with the law. The ruling by the judge served not only as a "rule book" for Vander Ark, but any author looking to compile reference books on literary work, Rapaport said.

An October conference held by the University of San Francisco attended by about 100 attorneys featured a daylong presentation by Vander Ark and lawyers from both sides of the case.

"In legal circles ... it's being written about as one of the major intellectual property cases in the 21st century," Rapaport said.

On Thursday, RDR Books officially withdrew its appeal of U.S. District Judge Robert P. Patterson's decision, and Rowling's public relations agency issued a statement favorable to the release of the rewritten lexicon.

"We are delighted that this matter is finally and favorably resolved and that J.K. Rowling's rights -- and indeed the rights of all authors of creative works -- have been protected," the statement said. "We are also pleased to hear that rather than continue to litigate, RDR have themselves decided to publish a different book prepared with reference to Judge Patterson's decision."

Vander Ark said he never intended to offend Rowling, but rather wanted to give her books "deeper meaning."

"I don't want to do a book she's unhappy with," he said. "I'm a fan of hers."

Read the whole thing here.

Friday, November 14, 2008

J.K. Rowling writes of her favorite scene in the final book of the Harry Potter series in honor of the Prince of Wales 60th birthday

BB NOTE: Author J.K. Rowling writes of her favorite scene in the final book of the Harry Potter series, Harry Potter and the Deathly Hallows, commenting that it could be her favorite scene in the entire series. We know from earlier comments made by Jo Rowling that she wept as she wrote this particular chapter, called The Forest Again. From here.

I admit that, at first glance, the extract I've chosen for The Birthday Book might not seem particularly celebratory, given that it has for its subject my hero walking to what he believes will be certain death. But when Harry takes his last, long walk into the heart of the Dark Forest, he is choosing to accept a burden that fell on him when still a tiny child, in spite of the fact that he never sought the role for which he has been cast, never wanted the scar with which he has been marked. As his mentor, Albus Dumbledore, has tried to make clear to Harry, he could have refused to follow the path marked out for him. In spite of the weight of opinion and expectation that singles him out as the "Chosen One", it is Harry's own will that takes him into the Forest to meet Voldemort, prepared to suffer the fate that he escaped sixteen years before.

The destinies of wizards and princes might seem more certain than those carved out for the rest of us, yet we all have to choose the manner in which we meet life: whether to live up (or down) to the expectations placed upon us; whether to act selfishly, or for the common good; whether to steer the course of our lives ourselves, or to allow ourselves to be buffeted around by chance and circumstance. Birthdays are often moments for reflection, moments when we pause, look around, and take stock of where we are; children gleefully contemplate how far they have come, whereas adults look forwards into the trees, wondering how much further they have to go. This extract from Harry Potter and the Deathly Hallows is my favourite part of the seventh book; it might even be my favourite part of the entire series, and in it, Harry demonstrates his truly heroic nature, because he overcomes his own terror to protect the people he loves from death, and the whole of his society from tyranny.

Read more about The Birthday Book published in honor of Prince Charles' 60th birthday here.

New Harry Potter and the Half Blood Prince Film Trailer Released

Well, we've got yet another trailer for the next Harry Potter film - and yes, we have eight months to go until the film is released since WB decided to postpone the release (which originally was next week!) to July 2009. But it looks spectacular! We can hardly wait.

Sunday, September 21, 2008

Interview with Richard Griffiths and Daniel Radcliffe

Very good interview with actors Richard Griffiths (Uncle Vernon) and Daniel Radcliffe (Harry Potter) on the eve of the week of their opening of Equus on Broadway. You can hear the entire NPR interview here.

Monday, September 15, 2008


J.K. Rowling's agents request advanced copy of Steve Vander Arks travel guide

NOTE: While there are reports that RDR Books plans to file an appeal regarding the publishing of the Harry Potter Lexicon in book format, the Times Online writes that Steve Vander Ark has written a travel guide based on events in the Harry Potter series.

J.K. Rowling's agents have apparently requested to see an advanced copy before the book is published.

What we're curious about here at Shell Cottage is whether the use of trademarked words will be permitted by Warner Brothers. WB has trademarked as inventions many individual words used in the series and this is the type of action being taken to control not just graphics owned by the studio, but now the words themselves. We're keeping an eye on this.

Here's the London Times article from here:

An American author whose Harry Potter encyclopedia was banned after a legal battle with JK Rowling is to write a travel guide based on the boy wizard’s exploits.

Steve Vander Ark faces crossing swords with the millionaire author again by publishing a “travel memoir” detailing visits to British locations he claims inspired the Harry Potter series.

Rowling’s agents have asked to see a copy of In Search of Harry Potter before it is published next month to ensure it does not breach copyright. Last week a New York judge awarded Rowling almost £4,000 damages and banned Vander Ark’s Harry Potter Lexicon. Rowling had argued that the book was a “wholesale theft of 17 years of my hard work”.

Despite the ruling, Vander Ark, a former librarian from Michigan, said he intends to press ahead with his guide. It recounts his travels to King’s Cross station, where Potter and the other wizards board the Hogwarts Express, London’s Charing Cross Road, the site of the Leaky Cauldron pub, and Surrey, where Harry lived in the fictitious town of Little Whinging.

He also claims to have discovered the location of Hogwarts school on Rannoch Moor in the Highlands.

“This is my own writing about my own experiences and I can’t imagine there will be any problem with this book,” he said.

Peter Tummons, managing director of the publishers Methuen, said: “This is a travel book . . . written in full by himself after his travels . . . There is nothing in it that would cause any distress.

Tuesday, September 9, 2008

Warner Brothers: "Houston, we've got a problem"

The front page of the Wall Street Journal has it. Greg and Penny of HP Progs have this video up on YouTube that's hit Prime Time:

The LeakyMug gang have this one up:

And there are many, many more. Many, many more (see below). Just sort have to wonder what's going on in TimeWarner land these late summer days. Yo, WB - hey, how's that stock price doing, guys?

Take Two

Court issues very narrow ruling on the fair use in print (not the internet) of Harry Potter

Internet fan sites remain untouched by ruling. You can lift it on the internet, but not for profit in print, especially when the author says she's going to do it herself. A win for all.

It looks like the court took a pass at establishing precedent through the lawsuit initiated by Warner Brothers (with Jo Rowling along for the ride) to force the print version of the HP Lexicon out of fans hands and back into Jo's head.

Now she's got to write it herself - hope that all wasn't just a publicity stunt and she's really working on it. The lack of any punitive damages also shows that the judge deemed it a bit over-kill (Warner Brothers does not get its precedent-setting ruling regarding trademarking the words) plus the fact that the book never got out of the printer's office. The judge ruled that Jo Rowling is still alive and able to produce an encyclopedia herself and had declared to the world that she's going to do it instead.

At first blush, it looks to be the best of all worlds. Jo gets to write her own book (which we will look forward to read - perhaps she can pop it out before the film next summer?), the Lexicon stays online, no punitive judgment is invoked, fan sites will not worry about threats made against them by WB if it went bad for them, and the ruling is so narrow it does not appear to set precedent.

If Steve Vander Ark were to write a commentary on the books - and I wish he would - that would be fair use. My favorite part of Pottercast (until it all got rather silly of late and insider-ish) was Canon Conundrums with Steve. He knew it all and he knew the mysteries and he knew how to take it to a deeper level, an adult level and out of the fan-squee. I for one would love to read his commentaries on the books. The judge encouraged that in his ruling. Frankly, I think it would be better book.

Next step: Reconciliation? If Draco and Harry can find a truce, well, perhaps the parties in this litigation can as well. In time.

The lack of punitive damages invoked by the judge shows that he seeks to aid in the restoration of relationships as well. And Warner Brothers is out a pretty penny in legal fees. Boo hoo hoo.

Here's what the Wall Street Journal, which has done a very good job following the litigation, writes:

The suit, filed late last year against RDR Books, an independent publishing house in Michigan, alleged that plans by Michigan-based publisher RDR to publish a print edition of the Harry Potter Lexicon, a Web site that serves as a rather daunting compendium of all things Harry, violated Warner and Rowling’s copyright and takes away the future market for a similar compendium that Rowling plans to write.

Here’s the opinion.

Judge Patterson ruled in Rowling’s favor because the “Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide.” He also wrote that, “While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled.”

Ethan Horwitz, an IP lawyer at King & Spalding, told the Law Blog: “What Judge Patterson is saying is that when you look at fair use, one of the dominant issues is, are you providing commentary or taking the value of the work and selling it as your own? He decided that the value of the work was being taken, that [Rowling] had the ability to put out the kind of encyclopedia that [Vander Ark] was putting out, and that she’d indicated an intent to do so.”

O’Melveny’s Dale Cendali repped Rowling and Warner Bros.

David Hammer, a solo practitioner in Manhattan, took the lead for RDR. He got help from Stanford Law School’s Anthony Falzone — a former Bingham McCutcheon litigator and the heir apparent to Lawrence Lessig’s Fair Use Project and Lizbeth Hasse, of San Francisco’s Creative Industry Law Group.

There is still something very sad about all this. Good night, Severus.

Saturday, September 6, 2008

Half Blood Prince Test Previw in Chicago

UPDATE: Here's another updated report here. And here's another one here. And a another one from the Mighty Mugglenet here.

Leaky has the scoop here. Warner Brothers continues on schedule - all the pre-film publicity continues and the test screenings remain on schedule. Read the report here. And pass the spearmint toothpaste.

UPDATE: Another report is now up at IMDb here.

Monday, September 1, 2008

Evanesco! Harry Potter Lexicon Disappears!

Went to look up a fact at the HP Lexicon and what do I find?


After I shook myself out of a moment of shock - who knew I cared so much? - I went looking for it. Finally, went over to Wiki to see if anything had developed of late and sure enough, Wiki explains, "The Lexicon was suddenly unavailable for a few days beginning August 30th, 2008, after a technical error with the domain. The site was still accessible via the IP address however."

We did go to the IP address and found it (whew!), but today the actually url is still down and some of the Lexicon links don't work. Our first thought was that the domain expired - and someone snatched it up (happened to my home parish and then the domain is held for ransom).

Still, the HP Lexicon page is up but it doesn't work, it looks like it was wiped. It's all rather strange. Wonder what the "technical error with the domain" means? An unpaid bill - or a legal problem?

Steve, where are you?

The corporations that have been pursuing fair use on the internet have been threatening to go after the domain hosts. So it's hard not to wonder if the "technical error" is a mechancial, financial, or legal one? The fact that the page is sitting there with missing information is strange, but the IP address is up and running, so perhaps it is a programing SNAFU. Been there, done that, got the t-shirt. It's a geek's primordial sin. It's how we learn.

Of course, we're still waiting for a court ruling on the book-version of the Lexicon and Warner Brothers appears to be a foul mood (there is still no credible explanation why they pulled the sixth film in November to wait basically another year before release - to make more money is a public relations disaster and we still guess that the lawyers had something to do with it).

The Lexicon site is not yet restored, but many/most of the pages are available for viewing at the IP address here.

And so we continue to wait - and see.

Thursday, August 14, 2008

Public Relations Disaster for Warner Brothers: Harry Potter film postponed for a year

Warner Brothers announced today that it is postponing the release Harry Potter and the Half-Blood Prince for another year. Here it is August 2008 and the film will not be released until July 2009. It was slated to open in three months. Just who exactly made this decision? Is it this kind of decision-making that is causing the stocks for TimeWarner to tank?

The film is all done and ready to go - but Warner Brothers thinks it can squeeze even more money out of the fans. Perhaps they should think again.

The news has hit the papers and it's not going well, not well at all. Fans are up in arms over the news - some thinking it's an early (or late) April Fools Joke. But no - while Time Warner stock continues to plummet, bad strategic thinking continues to abound - including that whole business about suing a fan for his book and threatening all the other fans that if that lawsuit doesn't go their way it will be No More Mr. Nice Guy. It does make one wonder what is going on inside corporate headquarters.

And it shows that Warner Brothers has no idea what can happen when fans turn on a studio. Just ask Desilu Studeio what happened when they initially cancelled Star Trek. Oh, that's right. There is no more Desilu.

The outrage that is pouring out over the internet against the studio is unprecedented. What is going wrong at the studio? Who made this decision and are they still employed? And is there no room for reprieve?

Or is it that the new film is really bad? If it's so good - why have it sit on a shelf for a year?

Wednesday, July 30, 2008

Is that J.K. Rowling?

It sure looks - and sounds - like J.K. Rowling as the woman who runs the orphanage that houses the young Tom Riddle. What do you think?

Thursday, July 24, 2008

Friday, July 4, 2008

Wednesday, June 11, 2008

J.K. Rowling's Prequel Released: Sirius Black and the Flying Motorbike

Read it all here. Click on Read our author's stories. Let's say we now learn more about Sirius' motorcyle. The story was sold at auction yesterday for $48,855.


Question: Who were the ones on broomsticks?

Sunday, June 8, 2008

Could the "prequal" be one of Filch's Detention Reports?

Time out for some Potter. As some of you may know (and for those who don't but wish you did - you know who you are), J.K. Rowling has penned an 800 word "prequel" for a charity book auction in the U.K. It is one of 13 story outlines written by famous writers for a charity auction to be held by Waterstones on June 10. She was given a note card to write her submission and we have learned that she took up both sides of the notecard to pen a short story about Harry's father, James Potter and Sirius Black, Harry's godfather, that takes place about three years before Harry is born.

So naturally, the Potter world is full of speculation. We haven't heard our theory yet - so we thought, for the fun of it, we'd offer our thoughts. So here comes another "Official ZoeRose Theory" brought to you by Madam Rosmerta's Butterbeer: The best butterbeer in Hogsmeade.

Here's what we know. We know it's a card. We know it's about James and Sirius. And we know it took place three years before Harry was born.

Harry was born in 1980. So that would put the year of this event as 1977. We believe that James and Sirus were born in 1960. That means that they "come of age" in the wizarding world at age 17, which would be 1977. That mean that they can do magic without penalty since they are no longer "under age." It also means that they are probably in their 7th year at Hogwarts.

So - here's the Official ZoeRose Theory: In the sixth book, Harry Potter and the Half Blood Prince, Harry is given detention by the potions professor Severus Snape after Harry uses a forbidden dark arts spell against his nemesis Draco Malfoy. Harry's detention is to take a particular cards from the file of the official Hogwarts caretaker, Argus Filch, and recopy them by hand. The card files kept by Filch are reports where he tracks all the infractions of Hogwarts students put in detention over the years. The particular card file that Prof. Snape orders Harry to recopy is the massive file of James Potter.

It is a great undertaking and Harry's detention is to last weeks, he is suspended from his Quidditch team, of which he is the captain, and instead must spend hours copying all the old detention files of his father during his years as a Hogwarts student.

We believe it is possible that this card - since it is similar to the cards that Harry had to use to copy the detention files, is one of Filch's official reports and perhaps one of the cards that Harry had to recopy and has now found itself in Muggle book for charity.

Saturday, April 26, 2008

Off to Oz

Here is an interesting editorial by American author, Orson Scott Card (who's own works pre-date Harry Potter but carry significant similarities). He is coming from a literary point of view, which has been the point of view until the lawyers at Warner Brothers came along and saw an opportunity.

Some thoughts from here first.

J.K. Rowling continues to use the phrase that she "invented" the Harry Potter novels, not that she "wrote" them. The word "invention" is key. If Suzie Smith create a new way of dealing with the annoying issue of blowing ones nose and it's quite successful and then Kleenex turns around and starts selling it as their own - well, that's stealing someone's invention. Warner Brothers has trademarked a vast - and I do mean vast - accumulation of words from the Harry Potter series and are now claiming intellectual property over the words themselves, seeking control over those words (and not just images) for profit from slices of the pie in the exclusive use of those words and claiming the same type of protection of "invention" as one would with a new Nose Blower. Copyright laws are not making corporations enough money or control.

The other major issue here is that this is an example of a work that has been published without penalty on the internet, in fact as been lauded by the author of the Harry Potter series for its ease of use - so easy in fact, she's used it herself! But there aren't the restrictions over the internet as there in copyright laws (and if there were they aren't enforced, which sets precedent, too late!)- and there certainly aren't the international restrictions since the internet is global. There is no centralization of the internet - no Internet Czar, at least not yet.

The lawyers at Time Warner see a major threat to their troubled empire if work created on the internet is then published in traditional style in book form - since they did not intervene in the creation of the websites (and for marketing purposes that brought them even more profits, encouraged them - like the Leaky Cauldron and Mugglenet) they are now faced with a disaster if all those fan sites start publishing outside the control of the Time Warner corporation. Having dried up the cash cow of the fansites leading up to the publication of the final book, it's time to close up that pipeline and the fans can go home.

The fans have little idea what is happening - many of them grew up with Harry Potter and some are only just now graduating from college. They have been wined and dined and shown favor by Warner Brothers and have become celebrities themselves (been to Borders lately?). They are not going to wake up for twenty years and realize how they were used.

That Jo Rowling would encourage all this at the expense of her fan base - and her greatest fan - just is so sad, it seems to be a warning. There are times when the fact that Jesus called us to live simply and follow a lifestyle where the greatest are last and the last are first. He demonstrated that by the choices he made over the disciples he called - not one of them was a king, though one or two many have been wealthy (tax collector Matthew comes to mind) - their wealth did not bring them fame or respect, in fact, quite the opposite. Materialism was not a highpoint on his list of to-do's.

What causes us to loose our heads, our hearts, and our courage? Why would we gain the whole world and lose our soul, or as J.K. Rowling writes - splits our soul and it in what basically are idols, as though that will give us immortality? Perhaps she understands this better than she's let on when she was on the stand, this author of the word "horcrux" but the concept of which is as old as Exodus 20. Thou shalt have no other gods but Me. Perhaps she's struggled with this more than she's let on. And frankly, who can blame her?

Here's the editorial by author, Orson Scott Card:

Can you believe that J.K. Rowling is suing a small publisher because she claims their 10,000-copy edition of The Harry Potter Lexicon, a book about Rowling's hugely successful novel series, is just a "rearrangement" of her own material.

Rowling "feels like her words were stolen," said lawyer Dan Shallman.

Well, heck, I feel like the plot of my novel Ender's Game was stolen by J.K. Rowling.

A young kid growing up in an oppressive family situation suddenly learns that he is one of a special class of children with special abilities, who are to be educated in a remote training facility where student life is dominated by an intense game played by teams flying in midair, at which this kid turns out to be exceptionally talented and a natural leader. He trains other kids in unauthorized extra sessions, which enrages his enemies, who attack him with the intention of killing him; but he is protected by his loyal, brilliant friends and gains strength from the love of some of his family members. He is given special guidance by an older man of legendary accomplishments who previously kept the enemy at bay. He goes on to become the crucial figure in a struggle against an unseen enemy who threatens the whole world.

This paragraph lists only the most prominent similarities between Ender's Game and the Harry Potter series. My book was published in England many years before Rowling began writing about Harry Potter. Rowling was known to be reading widely in speculative fiction during the era after the publication of my book.

I can get on the stand and cry, too, Ms. Rowling, and talk about feeling "personally violated."

The difference between us is that I actually make enough money from Ender's Game to be content, without having to try to punish other people whose creativity might have been inspired by something I wrote.

Mine is not the only work that one can charge Rowling "borrowed" from. Check out this piece from a fan site, pointing out links between Harry Potter and other previous works: And don't forget the lawsuit by Nancy K. Stouffer, the author of a book entitled The Legend of Rah and the Muggles, whose hero was named "Larry Potter."

At that time, Rowling's lawyers called Stouffer's claim "frivolous."

It's true that we writers borrow words from each other – but we're supposed to admit it and not pretend we're original when we're not. I took the word ansible from Ursula K. LeGuin, and have always said so. Rowling, however, denies everything.

If Steven Vander Ark, the author of Lexicon, had written fiction that he claimed was original, when it was actually a rearrangement of ideas taken from the Harry Potter books, then she'd have a case.

But Lexicon is intended only as a reference book for people who have already paid for their copies of Rowling's books. Even though the book is not scholarly, it certainly falls within the realm of scholarly comment.

Rowling's hypocrisy is so thick I can hardly breathe: Prior to the publication of each novel, there were books about them that were no more intrusive than Lexicon. I contributed to one of them, and there was no complaint about it from Rowling or her publishers because they knew perfectly well that these fan/scholar ancillary publications were great publicity and actually boosted sales.

But now the Harry Potter series is over, and Rowling claims that her "creative work" is being "decimated."

Of course, she doesn't claim that it's the Lexicon that is harming her "creative work" (who's she borrowing from this time?); it's the lawsuit itself! And since she chose to bring the suit, whose fault is it? If she had left Vander Ark alone to publish his little book and make his little bit of money, she wouldn't be distracted from her next novel.

But no, Rowling claims Vander Ark's book "constitutes wholesale theft of 17 years of my hard work."

Seventeen years? What a crock. Apparently she includes in that total the timeframe in which she was reading – and borrowing from – the work of other writers.

On the stand, though, Rowling's chief complaint seems to be that she would do a better job of annotating and encyclopedizing her own series.

So what?

Nothing prevents her from doing exactly that – annotating and explaining her own novels. Do you think that if there were a Harry Potter Annotated by the Author, Vander Ark's book would interfere with her sales in any way?

This frivolous lawsuit puts at serious risk the entire tradition of commentary on fiction. Any student writing a paper about the Harry Potter books, any scholarly treatise about it, will certainly do everything she's complaining about.

Once you publish fiction, Ms. Rowling, anybody is free to write about it, to comment on it, and to quote liberally from it, as long as the source is cited.

Here's the irony: Vander Ark had the material for this book on his website for years, and Rowling is quoted as saying that when she needed to look up some 'fact" from her earlier books, she would sometimes "sneak into an Internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter."

In other words, she already had made personal use of Vander Ark's work and found it valuable. Even if it has shortcomings, she found it useful.

That means that Vander Ark created something original and useful – he added value to the product. If Rowling wants to claim that it interferes with her creativity now, she should have made that complaint back when she was using it – and giving Vander Ark an award for his website back in 2004.

Now, of course, she regrets "bitterly" having given the award.

You know what I think is going on?

Rowling has nowhere to go and nothing to do now that the Harry Potter series is over. After all her literary borrowing, she shot her wad and she's flailing about trying to come up with something to do that means anything.

Moreover, she is desperate for literary respectability. Even though she made more money than the queen or Oprah Winfrey in some years, she had to see her books pushed off the bestseller lists and consigned to a special "children's book" list. Litterateurs sneer at her work as a kind of subliterature, not really worth discussing.

It makes her insane. The money wasn't enough. She wants to be treated with respect.

At the same time, she's also surrounded by people whose primary function is to suck up to her. No doubt some of them were saying to her, "It's wrong for these other people to be exploiting what you created to make money for themselves."

She let herself be talked into being outraged over a perfectly normal publishing activity, one that she had actually made use of herself during its web incarnation.

Now she is suing somebody who has devoted years to promoting her work and making no money from his efforts – which actually helped her make some of her bazillions of dollars.

Talent does not excuse Rowling's ingratitude, her vanity, her greed, her bullying of the little guy, and her pathetic claims of emotional distress.

I fully expect that the outcome of this lawsuit will be:

1. Publication of Lexicon will go on without any problem or prejudice, because it clearly falls within the copyright law's provision for scholarly work, commentary and review.

2. Rowling will be forced to pay Steven Vander Ark's legal fees, since her suit was utterly without merit from the start.

3. People who hear about this suit will have a sour taste in their mouth about Rowling from now on. Her Cinderella story once charmed us. Her greedy evil-witch behavior now disgusts us. And her next book will be perceived as the work of that evil witch.

It's like her stupid, self-serving claim that Dumbledore was gay. She wants credit for being very up-to-date and politically correct – but she didn't have the guts to put that supposed "fact" into the actual novels, knowing that it might hurt sales.

What a pretentious, puffed-up coward. When I have a gay character in my fiction, I say so right in the book. I don't wait until after it has had all its initial sales to mention it.

Rowling has now shown herself to lack a brain, a heart and courage. Clearly, she needs to visit Oz.

Monday, April 21, 2008

Sunday, April 20, 2008

Opening up the Floodgates

BB NOTE: Here's another editorial on the current litigation by Warner Brothers against the creator of the award-winning HP Lexicon.

We're reminded of another editorial by James E. Groves where he quotes a letter from George Grant Elmslie to Frank Lloyd Wright:

Why not, in the years of your great maturity, exhale a modicum of kindliness to others, endeavoring to do their bit? No one can afford it so well as yourself. But alas, you are not endowed with so human an element, only with a curious quality of vanity, and a rather vulgar and childish egotism. You seem to have it in your mind that you yourself do your work, whereas the impulses are much deeper and more universal than the mere ego which you adore.
Here is the editorial by Marina Hyde of The Guardian:

Quite unexpectedly, the true original in the JK Rowling copyright trial is turning out to be the judge. "It has been brought home to me in the last 20 years," mused Judge Robert Patterson this week, "that litigation is not always the best way to solve things." If this seems a faintly unusual utterance for a man in his line of work, it is all the more so for having been made in his courtroom in New York, a city not known for its aversion to dragging lawyers into every aspect of the human drama. It is a town in which people have sued themselves - usually successfully. A couple of weeks ago you could have read about a man suing a Manhattan strip club over claims that a lap dancer's shoe caught him in the eye.

Though they have been spared any collisions with perspex footwear, Ms Rowling and Warner Bros, who make the Harry Potter movies, are suing to block publication of the The Harry Potter Lexicon, an encyclopedia of her wizarding world based on a long-established fan website of the same name. Its creator, one Steve Vander Ark, wept in court after Rowling accused him of "constant pilfering" and "utter laziness". On the other hand, she did concede she had previously given an award to the site, and used it as a fact-checking resource. There were tears on her part too, and it all seemed completely unnecessary.

Of course, it wouldn't be the first time that Warner Bros has been involved in a pettily protectionist copyright case. Do let's recall that brilliant letter Groucho Marx penned to the studio - makers of Casablanca - after he received an "ominous legal document" warning the Marxes off calling their movie A Night in Casablanca. "I had no idea that the city of Casablanca belonged exclusively to Warner Brothers," he deadpanned. "I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo ... What about Warner Brothers? Do you own that too? You probably have the right to use the name Warner, but what about the name Brothers? Professionally, we were brothers long before you ..."

The case was eventually dropped. And it came to pass that moviegoers were indeed perfectly able to distinguish between Ingrid and Harpo - just as one suspects Harry Potter fans will be able to distinguish between JK Rowling's work and that of Mr Vander Ark.

We could all use a guide as to how the digital revolution has changed the world, but one safe-ish bet is to trust that quality rises to the top, and no matter how many Harry Potter fan "tributes" are sloshing about, interest in them will be dwarfed by that in the genuine article. What on earth is the difference between this stuff being on the internet or available to purchase in a book? The author might aver that in the latter case, money is being made by someone other than her - but the website has long carried advertising, so that seems moot. Vander Ark's publisher wanted a print run of 10,000; were Rowling to publish a lexicon, the first print run has been estimated at 3m.

"I believe the floodgates will open," she said this week, as though this sort of fan fiction could possibly be a problem for anyone other than creators of vast global phenomena. "I see this as an incredibly important case."

Alas, the judge was less convinced. In fact, in the course of advising the parties to settle, he referenced Jarndyce and Jarndyce, the long-running case featured in Bleak House that has become a byword for pointless and interminable litigation. He appears to have done so without requesting official permission from the estate of Charles Dickens. Judge Patterson confessed that he had enountered so many neologisms when reading one Harry Potter volume that he found it "gibberish" - marking himself out as one of that rare breed of adults who do not read these children's books on public transport wearing a moony expression. They opt for the special adult covers, or what we might call "the enabler edition".

As for Ms Rowling's argument that her work is being "debased", that position may be very compromised by this time next year, because she has given her blessing to the construction of a Harry Potter theme park in bookish Orlando, Florida. Bertie Bott's Tenth Circle of Hell ... I'm so sorry, The Wizarding World of Harry Potter will open next year, and the trailer website promises the chance to visit "Hogsmeade TM" and Hogwarts TM Castle", among other zones "inspired by" the Harry Potter books.

This, says the official blurb, "will provide fans with another way to experience the world beyond the books and films". And so it will: as some injection-moulded theme park, punctuated by those endless Disney-esque stands selling supersized fast food, and attempts to chisel cash out of you - or "experiential shops", as they have it. So when JK Rowling takes her first spin on the Cruciatus-a-Coaster, or whatever the big thrill ride will be called, here's hoping she looks back on Mr Vander Ark, and realises his modest fan project was not quite as ghastly as she made out.

Thursday, April 17, 2008

JK Rowling Appeals To Judge's Emotional Side, Rather Than A Real Legal Argument Over Potter Guidebook

From here.

From the apparently,-her-fiction-extends-to-the-courtroom dept

Earlier this year, we wrote about how J.K. Rowling's lawsuit against the publishers of a guidebook about Harry Potter's universe was extremely misguided. That lawsuit got a lot more attention Tuesday, as Rowling herself showed up in court to play an emotional, rather than legal, strategy. The NY Times even reports that she was "stoically holding back tears." Cry me a river. Rowling is basically trying to get copyright law to do a lot more than it is intended to do -- and all of her emotional bunk doesn't change that. Claiming that the "stress and heartache" of such a publication had hurt her creativity for the last month seems excessively questionable. Furthermore, it doesn't change the fact that a derivative work, such as this guidebook, doesn't violate copyright. There are lot of things that cause me stress and heartache and which might make me lose my concentration. It doesn't make them illegal.

It appears that the publisher's lawyer had some fun, pointing out that Rowling didn't seem to have that same sort of stress and heartache when she gave an award to the website that "The Harry Potter Lexicon" came from. And, when presented with evidence of how the book took Harry Potter details and did more with them (making them more useful), Rowling tossed out the following: "This is theft. Wholesale theft." Well, no, it's not. If it were anything, it would be infringement (not theft), but more importantly, it wasn't about republishing the content, but making it more useful. It's the same argument we discussed recently with people overestimating the value of the content, and underestimating the value of the service of making it useful. The most damning point might be that Rowling herself in the past admitted to using the lexicon to check up on facts she didn't remember.

However, the real key point that Rowling went back to again and again in her complaint is that she just didn't think the quality of the Lexicon was very good. That seems like a bizarre complaint, as copyright has nothing to do with quality. In fact, as the publisher's lawyer asked, "You feel it's your responsibility to prevent people from paying their hard-earned cash for things you don't like?" At which point, she switched arguments again, reverting to the claim that it was "theft." Of course, if she really thinks that the book is awful, there's a really easy solution: to come out with her own version of a guidebook. Surely, people would be a lot more interested in buying the "official" version, written with Rowling's approval, than some fan-created one. In fact, Rowling admits that she's been thinking of doing exactly that (and throws in the totally separate from the legal issues, but good for an emotional tug, claim that she would donate all proceeds to charity). Of course, there's nothing actually stopping her from competing, other than what appears to be her own unwillingness to actually have to compete for readers.

Read it all here - make sure to read the comments as well.

Wednesday, April 16, 2008

Wall Street Journal Blog: Potter Trial: On Last Day, Defense Outshines Rowling

From here.

Even by the judge’s own admission, the Potter case could go either way. But at the close of today’s session, which concluded a three-day trial, the defense appeared to score some serious points. Here’s what happened:

Is “Weak Waggishness” a Legal Conclusion? The plaintiffs (author J.K. Rowling and Warner Bros.) called their literature expert, Jeri Johnson, a “senior tutor” (that’s like an academic dean) from Oxford. Johnson, whose title was constantly confused by the lawyers — mis-addressing her alternatively as Don, Dean, and Doctor (she has no doctorate) — testified in broad generalities, concluding that entries in the Lexicon don’t add new “layers of meaning” to Rowling’s novels, and merely rearrange Rowling’s intellectual “furniture.”

Unimpressed, Judge Robert Patterson interrupted. “It’s not helpful testimony because it draws conclusions without specifics,” he said. “I can’t simply take the expert’s opinion as my own.”

Then, when David Hammer — lead attorney for defendant publisher RDR who handled every witness examination — crossed Johnson, her testimony simply unraveled.

Hammer pressed Johnson on her previous statements that the H.P. Lexicon is “weak waggishness,” that its jokes are “facetious,” “condescending in the extreme” and amount to “tedious jocularity.” Hammer got Johnson to agree that what’s obvious or facile to an academic dean at Oxford might not be so to children — presumably the Lexicon’s main audience. He asked: Could a work be useful to a 10 year-old even if it’s not something she would classify as a work of academic scholarship? “Yes,” she said. “No more questions,” he said.

Does the Lexicon Take the Best Crumbs of Rowling’s Cake? The problem of generalities continued to plague the plaintiffs when Rowling, the first witness in the case, took the stand in rebuttal as the trial’s final witness. Comparing her novels to a cake, Rowling claimed that the Lexicon takes all the best “crumbs,” repackages them and sells them for “entertainment value.”

Again, Judge Patterson interrupted, and addressed Rowling directly. “Can you imagine anyone reading [the Lexicon] for entertainment value?”

“No,” she replied. “But, without seeming arrogant or vain, there are entertaining things in it — and I wrote them.” Rowling went on to say that, just because she’s been successful, the law shouldn’t grant her less copyright protection. And, if the case is decided in RDR’s favor, she argued, borrowing law school cliches, that it will be a “slippery slope,” “floodgates will open,” “a precedent will be set,” and anyone will be able to “lift an author’s work” and present it as their own.

Law students, refresh our memory, but don’t the profs caution against the slippery slope argument, on the theory that it’s the job of judges and lawmakers to draw lines?

Maybe I Need a Reference Guide for This Case: That was Judge Patterson’s commentary at the close of testimony. Again, he urged the parties to consider settlement, reminding them that fair use is a “murky area” of law. Hammer then requested the opportunity to make a closing statement, which was a good call because his co-counsel, Anthony Falzone, delivered a strong one.

Rowling’s lawyer, O’Melveny’s Dale Cendali, emphasized their main theme, that the Lexicon “takes too much and does too little” but offered little in the way of specifics.

The defense’s Anthony Falzone, a lecturer at Stanford law a who hadn’t spoken since his opening statement, invoked a professorial tone and led the judge through a thorough analysis of RDR’s case. Synthesis and distillation is what makes the Lexicon “tranformative,” he argued. “Quality shouldn’t matter,” he emphasized. If the Lexicon is lousy, Falzone concluded, the answer is not to suppress it, but for Rowling to write her own.

LB’ers: Therein lies the trial’s narrative arc, short of the judge’s decision. Which way should he rule?

Monday, March 24, 2008

New interview with Steve Vander Ark:

“Do you think that, if Lexicon wins the case, the Harry Potter fansites are going to be affected in any way(Lexicon Online included)?

A victory for RDR Books will protect the rights of fans to create based on someone else’s work. If RDR Books loses, copyright holders will be given broad new control over fan activity, control which will allow them to shut down sites, stop authors from writing about their works, etc. So a win for RDR Books is definitely in the best interest of fans who create websites, write fanfiction, make wands, compose wizard rock, and so on. I am surprised how many fans have missed this point. Their freedom to create is on the line here.

How many pages does the Lexicon book have?

The Lexicon book will have around 400 pages. It’s 160,000 words. The book has four authors. I am the main author, but three of my Lexicon editors worked on the book as well.

If the Lexicon is published, once the Scottish Book gets out, will you still update Lexicon Online and Book?

I’m as excited to buy Rowling’s Scottish book as anyone! It will be very different from the Lexicon book, with a lot of new and exciting information which only Rowling can provide. I will continue to update the Lexicon website. I love working on the Lexicon and will do so even if I have no staff and even when people don’t read Harry Potter much anymore. Beyond that, I have written another book, called In Search of Harry Potter, which will be published in July. I’m starting on another one as well. I intend this series of books to comprise a complete independent reference library to Harry Potter. The second and third books will not generate the kind of legal concern that the Lexicon book has, thankfully.

Do you consider that your fanatism or admiration to J.K. Rowling is less now after all that have happened?

My admiration for the Harry Potter books is as great as ever. I’m still a huge fan. I’m also still a fan of Rowling, although I think her current actions are unfortunate and badly advised. I still admire her as a writer and a person and I don’t expect that to change just because she and I have a disagreement over a legal issue. Friends can disagree and still be friends.”

Saturday, March 1, 2008

Is J.K. Rowling serious? AP reports her threat to sue her own fans if her lawsuit is not successful

I kid you not. It's all here.
AP (which looks like it's just taken a press release from Warner Brothers and oddly reworked into an puff piece) is reporting that J.K. Rowling, whom we have had the greatest respect for (and we continue to try to keep that respect) has issued what can only be a rather threatening warning that if Steve Vander Ark's attempt to publish the HP Lexicon as an Encyclopedia, it will - to quote Rowling - "undoubtedly have a significant, negative impact on the freedoms enjoyed by genuine fans on the Internet. Authors everywhere will be forced to protect their creations much more rigorously, which could mean denying well-meaning fans permission to pursue legitimate creative activities."

Good heavens! Either she does not completely grasp what Warner Brothers is doing (and she's darn smart, so that just hard to believe) or she thinks we're stupid. We're supposed to cheer her on or she'll sue us?

The whole point of going after the HP Lexicon - which as we are reminded was praised by Rowling until Warner Brothers stepped in) - is that there is a fierce battle on over intellectual property now that the 20th century modes of communications are quickly becoming passé.

What Rowling is failing to mention here - with her sadly unfortunate and not-so-veiled threat is that it's the other way around. Encyclopedias have been published on literary works for years (as I have mentioned before, I have many many such works including a hefty 800 page Encyclopedia that was published by a fan). There is nothing new with that. What is different here is that Warner Brothers is trademarking the WORDs - the WORDs - and not just the images from the Harry Potter series.

If this lawsuit against Steve Vander Ark - perhaps once her most industrious and respected fan - is will set a precedent that the trademark owner can control the actual words. This is international law and it can then be applied to the internet.

So in fact, the reality is that it's the other way around.

What just floors me is that J.K. Rowling is threatening to sue her fans if her lawsuit is not successful. She's casting herself as the victim - which is just so incredibly laughable. She's one of the richest women in the world and she and Warner Brothers are throwing an enormous public relations campaign along with a cost litigation effort to shut down the fan she gave an award to for having the best Harry Potter fan site. It's absolutely bizarre.

She says that is she is not successful in her lawsuit, it will mean "
denying well-meaning fans permission to pursue legitimate creative activities." Where does she get the authority to issue "permission?" Because she "owns" the trademarked words!

So let's say you want to write an essay on your blog or website on how governmental offices during heated campaigns appear as though they have been drinking polyjuice potion because they aren't acting like themselves but a pandering to constituencies. If you use the trademarked word "polyjuice" she is threatening to send you a cease & desist letter since you are using one of her words in an essay she neither controls or profits from.

If the lawsuit is successful, it won't matter because the precedent will be set that words used on the internet cannot be translated to traditional forms of publication. In other words, the intellectual property - i.e., the words themselves - will be controlled by a corporation who owns the trademarked words.

We won't be able to plead our first amendment rights because the first amendment is guarding our rights to free speech from the interference of the government, not a corporation.

Unless, of course, it is appealed to the Supreme Court on the argument that the courts do not have jurisdiction to restrict freedom of speech by upholding laws created to protect trademark images from unauthorized use.

Remember, Rowling keeps referring her published words as her "invention." They are not her creation - she doesn't use the word creation. She uses the word "invention." That is setting the groundwork for this litigation. She is the inventor, as much as someone who invented the pooper scooper gets to control how it is used. She's not an artist - she's an inventor.

Corporations are attempting to use this to protect their investments. J.K. Rowling has become the corporate spokesperson to restrict freedoms of speech and the press by the use of trademarking the language. And that can be applied globally to the new forms of communication now employed by millions around the word.

Also remember, there was no way that Warner Brothers could ever shut down the HP Lexicon right now. It would be a public relations disaster. But Steve offered them a handy dandy way to do it and leave Rowling's own image in tact. They'll just go after this little book instead (never mind that I have several HP encyclopedias on my shelf right now!). But now that the corporations finally woke up in the new century where they are still using last-century's communication methods and are now seeking control over "intellectual property" through international trademarking rather than copyright law (which is national and expires) it's time to shut this stuff down.

The question is - why put this press release now? It coincides with more filings by Warner Brothers this past week in the case. Does Warner Brothers think the fans are too young and too naive to question the media strategy at play here? Notice also how we keep hearing about her charity work (more press releases) so that her happy image of the caring author remains intact as she sues one of her biggest supporters over the years. Does Warner Brothers think, as they successfully convey in this so-called AP "article" that J.K. Rowling is an Untouchable?

Or has she just sold out? Cornelius Fudge, call your office.

Monday, February 18, 2008

Madeleine L'Engle, the author of A Wrinkle in Time and many other works wrote:

“When I start working on a book, which is usually several years and several books before I start to write it, I am somewhat like a French peasant cook. There are several pots on the back of the stove, and as I go by during the day’s work, I drop a carrot in one, an onion in another, a chunk of meat in another. When it comes time to prepare the meal, I take the pot which is most nearly full and bring it to the front of the stove.

So it is with writing. There are several pots on those back burners. An idea for a scene goes into one, a character into another, a description of a tree in the fog into another. When it comes time to write, I bring forward the pot which has the most in it. The dropping in of ideas is sometimes quite conscious; sometimes it happens without my realizing it. I look, and something has been added which is just what I need, but I don’t remember when it was added.

When it is time to start work, I look at everything in the pot, sort, arrange, think about character and story line. Most of this part of work is done consciously, but then there comes a moment of unselfconsciousness, of letting go and serving the work.”

Here she describes the act of writing as something that is done both consciously, but also unconsciously or what she calls "a moment of unselfconsciousness" which means "letting go and serving the work."

Sister Wendy Beckett, the narrator of several BBC documentaries on the history of art, told Bill Moyers in an interview that "all great art is a visual form of prayer, although the artist may not know it." Often Sister Wendy would stand before a painting in the National Gallery in London or elsewhere and talk about how a painting went beyond the artist - if it was only just an extension of the artist's imagination, an artist's invention, it would be interesting, but it would not be art. Art transcends the artist, art is a collaboration with the Holy Spirit and great art is greater than the artist. The art is greater because it is true.

The artist serves the work, not the other way around. In fact, much of the artist's adventure is made up of letting go, of giving up control, of setting it free as much as a mother raises her child to be independent.

J.K. Rowling has been making statements of late describing her relationship with the work, her series of books on Harry Potter. But she doesn't use artistic words to describe her relationship with the work. For example, J.K. Rowling has consistently described the creation of her work as her invention. "I spent a lot of time inventing the rules for the magical world so that I knew the limits of magic. Then I had to invent the different ways wizards could accomplish certain things. Some of the magic in the books is based on what people used to believe really worked, but most of it is my invention." Over and over again we find Rowling describing her creative process as though she was an inventor.

We can't really imagine L'Engle or C.S. Lewis or even J.R.R. Tolkien describing themselves in a similar way. In fact, when you read their commentaries of their own works, they seem to relate to the work as though it all ready existed and they merely found it. They are adventurers who have been to those "undiscovered countries" and have returned to bear witness to what they saw.

This afternoon at home, I came across a book called "The Bob Dylan Encyclopedia," which was published in 2006. When it uses the word "Encyclopedia," it means it. It is a big, coffee table sized book, 735 pages long with a CD included that contains references, cross references, and cross-cross references of every song, musician, idea, footnote, more footnotes, and even more references to anything written or sung by Bob Dylan in forty years. And it was written before Bob's Radio Show went on the air - which will end up being a Volume Two all by itself. It is an interpretation of Dylan's works, a glossary and explanation of terms, references, titles, objects, writers, personalities, biographies, places, events - the list goes on and on about what could be said is an "invented" persona called "Bob Dylan." Put together by one Dylan expert, it is that one man's catalogue - his interpretation of what matters most in Bob Dylan's life and career.

An entire book - in fact, an entire library still cannot contain or explain the mystery that is this "invented" persona called "Bob Dylan." Is he real - or is he invented?

The mystery has fueled several generations of speculation about his music as many have tried to solve the riddles that abound in his works. His current radio series just adds to that mystery. Every so often he grants an interview or he writes a book and instead of having it all explained, he just produces even more mystery. When asked about that by 60 Minutes a few years ago, Dylan merely smiled and said, "It goes back to that destiny thing. I mean, I made a bargain with it, you know, long time ago. And I'm holding up my end … to get where I am now." Ed Bradley then asks him, who did he make the bargain with? "With the Chief Commander," Dylan replied. "In this earth and in the world we can't see."

Since the release of Deathly Hallows there has been a "powering down" in the HP reading community regarding discussions and musings concerning her work. Podcasts have announced that they are ending. Discussion Boards are dormant. It's as though the air has gone out of the tires. While people are still discussing the works of Lewis, Tolkien, and even Shakespeare himself, J.K. Rowling has made it quite clear that if there's going to be any official explanations about her work, they are going to come directly from her, the inventor.

She went on a U.S. Tour where she spent considerable time "explaining" the works to agreeable children and fans, staying away from more in-depth interviews with those who would seek to explore the deeper meanings of her work (like John Granger, for example) - and how much of it she knows herself and how much she actually doesn't know. It's as if she doesn't want to enter the realm of discussing the process of her "inventions" as it may reveal, as Dylan has, and that no one can completely invent "art" out of nothing, especially when it comes to literary works.

Why is this?

It appears that there is now a full fledge war breaking out over traditional publishing methods and the global forms of communication now available through the net. This is true not only with literary works, but music as well, as we learned recently from Paul McGuinness, manager of U2, who offered quite a tirade recently against iTunes and other electronic forms of music dissemination. He wants to slice up the pie and get a percentage out of every bit of the pie. If you buy a song on iTunes, he wants there to be charge for every single use of that song - be it burned to a CD for you own use, loaded on to your iPod for your own use, or saved on your computer for your own use. Anything less, Paul says, is "stealing."

Copyright laws are not necessarily international, but trademark laws can be - and so all of J.K. Rowling "inventions" are trademarked or branded, which - like Mickey Mouse - can be controlled by the corporation. The Golden Arches are the Golden Arches in Peoria as well as Peking. What has been true for corporate brands now seems to be pursued by corporate publishing entities seeking the same branding for literature, the written word.

The words themselves are brands.

Now it's not just music or images or brands that corporations are charging can be "stolen" - but now it could be actual words. The words themselves are branded. No wonder J.K. Rowling calls herself an inventor rather than a writer.

Several years ago, TimeWarner hit websites very hard about using images from the Harry Potter films, threatening webmasters with lawsuits if they used the images. Disney had all ready been quite successful in having its images removed from websites that were not controlled by them. Warner Brothers was following in their footsteps and then, suddenly, it all stopped. It was as though a new marketing scheme was now being employed where - instead of threatening lawsuits against enthusiastic fans - they would actually encourage the use as another way to market the films and products. They have now mastered that by cultivating the webmasters to be "insiders" in the Warner Brothers marketing scheme. Other corporations have followed suit.

Well, except for one webmaster: Steve Vander Ark, who did not apparently play along so well. He received enormous support for his Harry Potter Lexicon - so much so that J.K. Rowling bestowed on him one of her early Fan Site Awards and talked about how much that site helped her in the writing of the books.

But when he went to publish the Lexicon in traditional print, it turned out that Warner Brothers had laid out a minefield with its trademarking of the "words" from the books and not just the images from the films. If he used the words, "invented" by J.K.Rowling and published those "words" he was stealing. In copyright law you can use "quotes" in your works with attribution, but now with trademark law being applied to intellectual property - even individual words, to use that word alone would be stealing that word. To publish an encyclopedia using trademark words would be an infringement on the inventor's control. Steve Vander Ark is now sued for using the trademarked words in his published but not-yet released Encyclopedia. His case is now being defended by the law center at the University of California Law School at Stanford.

What Time Warner seems to be banking on is that if the trademarking of intellectual property is upheld in the U.S. Courts, that the same came applied to the internet worldwide. Then it will not just be images that will be controlled - but actual words - and words are what really matters on the internet.

In order to have free speech one needs free words. If the words are trademarked, what will be free? Stanford, just up the road from Berkeley, seems to be paying attention. Are we?

Let's use one of J.K.Rowling's trademarked words to make the point. That word is Horcrux. According to the Harry Potter Lexicon, citing a "Diary" entry by J.K. Rowling on her website, a Horcrux "is the receptacle in which a wizard has hidden a fragment of his soul for the purposes of attaining immortality." It is considered evil and dark.

Is that not what the practice of trademarking words to control the intellectual property and its use is? Is it not a way to hide fragments of an artist's soul into those "words" for the purpose of attaining a different sort of immortality - a financial and controlling global immortality? A corporate immortality? Perhaps.

But at what cost to intellectual freedom of speech and expression? At what cost to the artistic creativity of generations to follow?

No longer could there be opinion pieces published in books on what constitutes a Horcrux or how Horcruxes are at work metaphorically in our culture or what a Horcrux™ might mean in the life of J.K. Rowling. Anything having to do with the writing about Horcruxes™, as in an encyclopedia or in a descriptive essay will be controlled by the "inventor" (formerly known as the author) in her vaguely-promised Scottish Book.

Let us recall again Madeleine L'Engle's description of the art of creating stories when she reminded us that "there comes a moment of unselfconsciousness, of letting go and serving the work." Serving the work and letting go spurs on more creativity and opens windows into the soul which inspires even more creativity.

It is anything but a Horcrux™.

Saturday, February 9, 2008

SAT. UPDATE: The Declaration of Steve Vander Ark, the author and webmaster of the Harry Potter Lexicon, is now available to read in its entirety online here. It makes for fascinating reading.

NYT opinion

A Tight Grip Can Choke Creativity
By Joe Nocera, New York Times

On Friday, a lawyer named Anthony Falzone filed his side’s first big brief in the case of Warner Bros. Entertainment and J. K. Rowling v. RDR Books. Mr. Falzone is employed by Stanford Law School, where he heads up the Fair Use Project, which was founded several years ago by Lawrence Lessig, perhaps the law school’s best-known professor. Mr. Falzone and the other lawyers at the Fair Use Project are siding with the defendant, RDR Books, a small book publisher based in Muskegon, Mich. As you can see from the titans who have brought the suit, RDR Books needs all the legal firepower it can muster.

As you can probably also see, the case revolves around Harry Potter. J. K. Rowling, of course, is the creator of the Harry Potter series — “one of the most successful writers the world has ever known,” crowed Neil Blair of the Christopher Little Literary Agency, which represents her. Warner Brothers holds the license to the Harry Potter movies. Of the two plaintiffs, though, Ms. Rowling appears to be the one driving the litigation.

“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.

And what perfidious act of “hijacking” has RDR Books committed? It planned to publish a book by Steven Vander Ark, who maintains a fansite called the Harry Potter Lexicon. The Lexicon publishes Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines and does a thousand other things aimed at people who can’t get enough Harry Potter. It’s a Harry Potter encyclopedia for obsessive fans.

So long as the Lexicon was a free Web site, Ms. Rowling looked kindly upon it. But when Mr. Vander Ark tried to publish part of the Lexicon in book form — and (shudder!) to make a profit — Ms. Rowling put her foot down. She claims that she wants to publish her own encyclopedia someday and donate the proceeds to charity — and a competing book by Mr. Vander Ark would hurt the prospects for her own work.

But more than that, she is essentially claiming that the decision to publish — or even to allow — a Harry Potter encyclopedia is hers alone, since after all, the characters in her books came out of her head. They are her intellectual property. And in her view, no one else can use them without her permission.

“There have been a huge number of companion books that have been published,” Mr. Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But, he added: “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.”

They fall in line. There, in that one sentence, lies the reason Mr. Falzone and his colleagues have agreed to help represent RDR Books. And it’s why Mr. Lessig decided to start the Fair Use Project in the first place.

It’s an odd twist that this dispute centers around a book, because ever since the recording industry first sued Napster, most of the big legal battles over copyright have centered on the Internet. The lawsuit Viacom filed against YouTube last year to prevent people from posting snippets of Viacom’s copyrighted television shows is the most obvious recent example.

But if you look a little further back, you’ll see that for a long time now, copyright holders have made a series of concerted efforts to extend copyright protection and make it an ever-more powerful instrument of control.

More than a century ago, copyrights lasted for 14 years — and could be extended another 14 if the copyright holder petitioned for an extension. Today, corporate copyrights last for 95 years, while individuals retain copyrights for 70 years after their deaths. The most recent extension of copyright, passed by Congress in 1998, was nicknamed the Mickey Mouse Protection Act, because Disney’s lobbyists were intent on keeping Mickey Mouse from falling into the public domain — and on preserving billions in profits for Disney.

At the same time, though, copyright holders have tried to impose rules on the rest of us — through threats and litigation — that were never intended to be part of copyright law. They sue to prevent rappers from taking samples of copyrighted songs to create their own music. Authors’ estates try to deprive scholars of their ability to reprint parts of books or articles because they disapprove of the scholar’s point of view. Mr. Lessig likes to cite a recent, absurd case where a mother posted a video of her baby dancing to Prince’s song “Let’s Go Crazy” on YouTube — and Universal Music promptly demanded that YouTube remove the video because it violated the copyright. Have these efforts had — as we like to say in the news business — a chilling effect? You bet they have.

About a decade ago, Mr. Lessig decided to fight back. His core belief is that copyright protection, as he put it to me, “was meant to foster creativity, not to stifle it” — yet that is how it is now being used. He fought the Mickey Mouse Preservation Act all the way to the Supreme Court (he lost). He founded Creative Commons, which is, in a sense, an alternative form of copyright, allowing creators to grant far more rights to others than the traditional copyright system. And he started the Fair Use Project to push back against copyright hogs like J. K. Rowling.

No one is saying that anyone can simply steal the work of others. But the law absolutely allows anyone to create something new based on someone else’s art. This is something the Internet has made dramatically easier — which is part of the reason we’re all so much more aware of copyright than we used to be. But it has long been true for writers, filmmakers and other artists. That’s what “fair use” means.

And that is what is being forgotten as copyright holders try to tighten their grip. Documentary-film makers feel this particularly acutely. My friend Alex Gibney, who directed the recent film “Taxi to the Dark Side,” about torture, tried to get Fox to license him a short clip from the television series “24” to illustrate a point one of his talking heads was making about how the show glamorized torture. Fox denied his request. Mr. Gibney, a fair-use absolutist, used it anyway — but many filmmakers would have backed away.

Which is also why the Harry Potter Lexicon case is so important. For decades, fair use has been thought to extend to the publication of companion books that build on the oeuvre of someone else — so long as the new work isn’t simply a rehash of the original. There are dozens of companion books to the Narnia chronicles, for instance, and the works of J. R. R. Tolkien.

What Ms. Rowling is saying, however, is that her control of Harry Potter is so all-encompassing that only she gets to decide the terms under which a companion book is allowable. She can talk all she wants about charities that will be deprived if she loses this case, but this is really a power grab. RDR Books should not have to “fall into line” to publish the Lexicon. Ms. Rowling is claiming a right that, if granted, will hurt us all.

Read the rest here.