“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.”
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?
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.
“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 herinvention. "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.
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.
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?
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."
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.
New interview with Steve Vander Ark:
