When the Harry Potter Lexicon website announced plans last fall to publish a book based on their fan-written content, JK Rowling and Warner Brothers sued for copyright infringement. A Federal judge halted the planned November publication of the book while the lawsuit plays out. Now Tim Wu at Slate argues that Rowling has gone too far.
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.[…] 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.
It appears he is wrong, at least from a legal standpoint. A reader on Rebecca Blood’s site refers to previous court precedents that support Rowling’s claim:
Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d
Cir. 1998), aka, the Seinfeld Trivia case. Someone created and
published an unlicensed book of Seinfeld trivia, with details about
characters and lines in the show, arguing that doing so was fair use
and merely a compilation of facts. The court held that the facts about
the show weren’t really facts, but rather expressions of the creators’
imaginations, and the most important fair use factor of effect on the
market was in Seinfeld’s favor since they had plans for their own
derivative books based on the show. See also Twin Peaks v. Publications
Int’l, Ltd. 996 F.2d 1366 (2d Cir. 1993), which was plot summaries and
quotations from the TV show Twin Peaks – again, the court held that the
amount of material taken from the original was substantial and
adversely affected the market for authorized books about the show, and
so denied a fair use defense to copyright infringement."
Variety reports that Rowling is taking action because interferes with her plans to do her own compendium.
"I cannot, therefore, approve of ‘companion books’ or ‘encyclopedias’
that seek to preempt my definitive Potter reference book for their
authors’ own personal gain," Rowling said in a statement, released by
Warner Brothers.[…]The lawsuit doesn’t seek action against the Web version of the Lexicon,
but criticizes it for numerous sections it said "regurgitate Ms.
Rowling’s original creative expression with minimal additional
commentary."
The CBC reports that Rowling isn’t happy about having to take the fans to court.
Rowling had been a supporter of the website and in a statement
released on her website, Rowling admitted she took "no pleasure" in
launching the lawsuit."I feel massively disappointed that this matter had to come to court
at all," the statement said. "Given my past good relations with the
Lexicon fan site, I can only feel sad and disillusioned that this is
where we have ended up."
The outcome of this case, if it goes to trial, could have far-reaching impact on how far fans can take their so-called derivative work and claim it as their own.
(Thanks to "Calistoy" for the heads-up).
Like many legal matters, the answer at the heart is “it depends.”
At the heart of the question is: how much of the stuff in the fan-written books is original and how much is ***directly*** the work of the author.
For example, there were numerous Tolkien guides published during the ’70s and ’80s. These were collections of encyclopedia entries that described the characters, the locations and the objects. Note the word “described.” Nowhere was the text of LOTR quoted. There’s a similar book out now about Terry Pratchett’s Discworld that follows the same line (I think, in that case, that TP had a hand in it so it’s not directly relevant to the HP case).
In the “Seinfeld” and “Twin Peaks” cases, the authors took much of their material directly from the shows and simply recast them as books. This is direct appropriation of the creators’ work and, rightfully, should be out of bounds.
So what we have here are works at the opposite ends of a continuum. Surely someone is allowed to write a book about the Harry Potter world, using the original material as a starting point to discuss the stories. What you can’t do is take her words and cobble together a book of your own with them. The law seems clear at both ends; it’s when the book is somewhere in the middle that it goes all pear-shaped.
I think too many people are missing the point here. This is more about trademark than about copyright, and it is more about Warner than it is about Rowling.
The easiest way to tell is by looking at who is lead counsel, and inquiring whether either Warner or Rowling has a long-standing relationship with that law firm.
The second-easiest way to tell is by looking at the copyright notice in Harry Potter and the Deathly Hallows and seeing who has the principle US commercial interests at stake.
Further, in the abstract sense this case should be about trademark and unfair competition, not about copyright… at least until we all have an opportunity to actually compare the texts and illustrations of the planned (not-yet-published) purportedly infringing book. That is not a defense of either side’s position it is just a fair warning that nobody really knows enough to do more than pontificate on hypotheticals.
C.E. Petit (and other interested parties), you can have a look at the planned book’s content on the website of the Harry Potter Lexicon, as they’re pretty much planning to publish the content accumulated on that site.
kete
Another thing about this whole incident is that supporters of the Lexicon being published are saying that it’s a companion book that has it’s own literary merit. This lawsuit gave Rowling and the WB a chance to see the manuscript for themselves. On Jan. 16th, JKR and the WB filed full request for injunction of the lexicon (http://www.the-leaky-cauldron.org/2008/1/16/wb-and-jkr-file-full-request-for-injunction-of-harry-potter-lexicon-part-1). Also, you can read the full injunction here (http://news.justia.com/cases/featured/new-york/nysdce/1:2007cv09667/315790/). You can see for yourself that the Lexicon in book form is just a rearranging of the Harry Potter books in encyclopedic form without any of the informative essays and whatnot that the Lexicon website itself provides. It also lifts text from the series in a blatant way. The author of the manuscript, Steve Vander Ark, had witnesses against him that say that he acknowledged to them that to publish such a book will be copyright infringement, and so it wasn’t a good idea at all. Then after a while, he still did it. In conclusion, in which I really hope that Rowling and the WB win their lawsuit, is that Vander Ark’s book is not a companion book whatsoever.
Your links don’t work, Calistoy.
Yeah. The links don’t work because I didn’t use HTML to post them. When you click on them, go back to the address bar, remove the ). from the end of it, then press enter. The pages are there.
Court Rules in Rowling’s Favor
Deadline Hollywood reports that a New York court has ruled in favor of Warner Brothers and J.K. Rowling in their lawsuit against RDR books, a publisher attempting to cash in with an unlicensed, unauthorized Harry Potter “lexicon” that drew heavily from…