jurisprudence
J.K. Rowling's Dark Mark
Why she should lose her copyright lawsuit against the Harry Potter Lexicon.

By Tim Wu

Jan. 10, 2008, at 7:59 AM ET---As I wrote in October, over the last few years, the relationship between fan-written Web sites and the copyright owners of the content they draw on, if legally murky, has at least been peaceful. Once it dawned on media companies that fan sites are the kind of marketing that they usually pay hard cash for, they generally left the fans alone. But things turned sour in the fall, when the Harry Potter Lexicon Web site announced plans to publish a book version of its fan-written guide to the Potter world. Author J.K. Rowling and publisher Warner Brothers have sued the Lexicon for copyright infringement, exposing the big unanswered question: Are fan guides actually illegal?

As sympathetic as I am to Rowling and her rights as an author, the answer is no. There is a necessary and healthy line between what the initial author owns and what follow-on, or "secondary," authors get to do, and Rowling is running over that line like the Hogwarts Express. The creators of H.P. Lexicon may not be as creative as Rowling, but they are authors, too, and deserve a little respect from the law.

At issue are the giant fan-written guides like the H.P. Lexicon or the Lostpedia (for the show Lost) that try to collect all known information on topics like Harry's pet owl or the Dharma Initiative. Rowling takes the position that she, as the original author, has the right to block the publication of any such guide. In her words: "However much an individual claims to love somebody else's work, it does not become theirs to sell."

But Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be "recast, transformed, or adapted." But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing. The law has never allowed authors to exercise that much control over public discussion of their creations.

Unlike a Potter film or computer game, the authors of the Lexicon encyclopedia are not simply moving Potter to another medium. Their purpose, rather, is providing a reference guide with description and discussion, rather like a very long and detailed book review. Such guides have been around forever—centuries if you count the Bible, and more recently for complex works like the writings of Jorge Borges or The Lord of the Rings. As long as a guide does not copy the original work verbatim, it falls outside the category of "adaptation." And that's why it is largely unnecessary to discuss the more complex copyright doctrine of "fair use." Rowling's rights over the guide don't exist to begin with, so we don't need to go there.

This can be made clear by looking at a typical Lexicon entry, like this one for the "house elf," the character who does the scut work in the Potter universe. "House-elves," says the encyclopedia, "are small humanoid creatures who inhabit large houses belonging to wealthy Wizarding families."

For a fan to write this kind of entry, Rowling says, is to "take the author's hard work, re-organize their characters and plots, and sell them for their own commercial gain." But that's ridiculous. This and other entries aren't, as Rowling seems to suggest, anything like an abridgment of the originals. No one would read the Lexicon as a substitute for the Potter books; it is useless unless you've read the original, and that makes all the difference.

The closest relevant legal precedent is the 2002 Beanie Baby decision by Judge Richard Posner (who has a taste for cases involving stuffed animals). Ty, the producer of Beanie Babies, doesn't like unauthorized guides to the Beanie Baby universe and their unflattering tendency to criticize the company, so it sued. Ruling against the company, Judge Posner used the same analogy that I have, comparing the guides to book reviews: "Both," he said, "are critical and evaluative as well as purely informational; and ownership of a copyright does not confer a legal right to control public evaluation of the copyrighted work." That's logic that should control the Potter case as well.

Even if the Beanie Baby case isn't directly controlling, the economics suggest the same result. How, exactly, are we hurt by the existence of competing guides to the Potter universe, one written by fans, the other by Rowling? It would be strange to say that since Fodor has written a perfectly good guide to London, we don't need the Lonely Planet or, for that matter, Wikitravel. Giving Rowling what she wants would be like giving Egypt the power to control guides to the pyramids.

Bizarrely, Rowling says that the fan guide would prevent her from writing her own guide to the Potter world. "I cannot," she said in a statement "approve of 'companion books' or 'encyclopedias' that seek to preempt my definitive Potter reference book. ..." To begin with, Rowling sounds entirely too much like a Death Eater in this quote. More generally, two products in the same market isn't called pre-emption—the word is competition. Why not let consumers decide which guide they like better? Rowling might object that the fan's guide will be strewn with errors or poorly written; but it is hardly the job of copyright to protect us from bad execution. And the fan's guide might actually be better, or at least different.

There are more ethereal reasons that Rowling ought not win. For reasons anthropologists will someday understand, volunteer encyclopedias have become the place to find what passes for our collective wisdom. Wikipedia is the clearest example: It may be wrong sometimes, but it is nonetheless a statement as to what we know. To her credit, Rowling accepts this and tolerates the online version of the H.P. Lexicon. But a general rule of the kind she is asking for isn't so generous: It would, by necessity, give copyright owners power over the content of Wikipedia and other online encyclopedias that discuss their works. Not the end of the world, but certainly a subtle form of thought control.

In the end, this dispute is about the current meaning of authorship. Rowling is the initial author and deserves the bulk of the credit, respect, and financial reward. But she has all of that. What she wants is a level of control over the Potter world that just isn't healthy. The authors of fan guides, like house elves, rarely get famous or rich. They deserve legal credit for their modest contributions, not the Wizengamot.

Tim Wu is a professor at Columbia Law School and co-author of Who Controls the Internet?

Article URL: http://www.slate.com/id/2181776/

USA Today/AP reports today that the Stanford Law Group has joined the case regarding Steve Van der Ark's case on the publication of the HP Lexicon in print. They are siding with Steve:

A group of crusading intellectual property lawyers at Stanford Law School say they will help defend a small publishing house being sued by author J.K. Rowling over its plan to print an unauthorized companion guide to her Harry Potter series.

The Fair Use Project at Stanford's Center for Internet and Society announced Tuesday that it had signed on to aid the defense of Michigan-based RDR Books, which had planned to release The Harry Potter Lexicon this fall.

The book's publication has been blocked by the lawsuit. Rowling and Warner Bros., which produces the Harry Potter movies and holds the copyright on the seven novels, have argued that the lexicon borrows too heavily from the books and amounts to copyright and trademark infringement.

Fair Use Project Executive Director Anthony Falzone said the lexicon is protected by U.S. rules that have long given people "the right to create reference guides that discuss literary works, comment on them and make them more accessible."

You can read the rest here.

Some first thoughts.

If WB wins this case, websites are next. The Lexicon existed as long as it was “free publicity” for WB and would have been a public relations disaster if WB tried (as it did in the early years – remember all the threats about using images online – Disney did shut it all down, if you are old enough to remember?).

The whole realm of intellectual property law is exploding, especially with the new “markets” online. As we’ve seen in Jo’s interviews and with this lawsuit, controlling the intellectual property is very important for maintaining absolute control of the marketing (and exploiting for profit) of the property.

When it appeared that shutting down the websites or severely limiting what fans were permitted to do with the intellectual property (i.e., the Harry Potter books) was a public relations disaster, they backed off. Instead, rather brilliantly I might add as you can see here at Leaky, they completely changed their marketing strategy and decided to use the websites to broaden and deepen the market. So WB has been very “helpful” in not shutting down websites because they smartly realized that the fansites actually were excellent marketing tools.

But now that the books are completed and controlling the property’s management becomes a crucial component in long-term marketing strategies, a site like the Lexicon going into print becomes a huge threat to the franchise. If the book is published, it will set a precedent for other materials now on websites going into print. The internet is still in a “Wild Wild West” mode and nearly anything goes. As I said before, companies like WB have learned that investing (even if that means not suing) fansites has been a marketing bonanza for them. But precedent will be set if fansites start publishing their works in print.

I have several encyclopedias for Harry Potter on my bookshelf, published before WB turned their attention to controlling the property once the series were completed. What may have behooved Steve in publishing the Lexicon would be for WB to back it, but then he would have lost creative control of the work and would be merely the “frontman” and not the actually creative director. There’s just no way, with this present generation of executives, for fans to be given creative control over their works like encyclopedias or extensive commentaries (unless the parent company of WB publishes them) – those days have ended.

One could make the case that Jo was encouraged to go on Pottercast to make sure fans don’t realize the long-term effects that will happen to their own freedom of expression on the internet with creating artwork and stories based on the Harry Potter series. If it is shutdown in print, then it will be shut down online. International companies like the one WB belongs too understands that the relationship between print media and online media should be seamless. That is not the case right now – Congress has continued to refrain from placing the same limitations on the internet that now apply to print and broadcast media (though that is changing).

There is a connection I think between this case and the one now going on regarding loading your CDs into iTunes for your iPod. Music Companies are now in court making the case that loading your personally purchased CDs on to your own personal computer and then used in your own personal iPod is stealing.

This is what is happening now and though I know we are not lawyers or executives, we’re probably all still voters and consumers and so we need to be watching these things very carefully. Note how not one of the candidates running for president is talking about this stuff. But for the “internet generation” this is very important.

That day may come when the generation now reading MuggleNet or at Leaky grow up and become executives at WB. But that will be a long, long, time and by then Harry Potter will be on the shelf like Winne the Pooh.

Unless Steve wins this case. Then all bets are off. No wonder Stanford took the case. They get it.