J.K. Rowling: Totally wrong on copyright

by Mathew on September 10, 2008 · 13 comments

A U.S. Federal Court has ruled in the case of J.K. Rowling vs. the Harry Potter Lexicon, in which the Potter author sued to prevent a former librarian from publishing a compendium of facts about the novels. The book was based on the Lexicon website, which Steven Vander Ark has run for years — a fan site so comprehensive that Rowling herself has praised it in the past. The court decided on Monday that the Lexicon was not protected by the fair use clause in U.S. copyright law and would therefore be illegal if published. The judge, in my view, was completely wrong, and so was Ms. Rowling for bringing the suit.

I, of course, am not a lawyer. I don’t even play one on television. But I know a little bit about writing, and I know (or think I know) what copyright law was originally intended to do — which is to protect a creator’s rights to their creation, but also to balance those rights with the rights of society to create new works based on that original work. In my view, the judge’s decision gave the first part of that equation a vast amount of weight, while giving the second part virtually no weight at all. If anything, he should have done the exact opposite.

I’m not going to get any help in my view from Derek Bambauer of the Harvard Law School. Even before the decision he had pretty much decided that the Lexicon didn’t deserve to be covered by fair use, because it failed to meet any of the tests in the “four factor” standard — which looks at a) the amount of the work used; b) the nature of the work; c) whether the infringing work is “transformative” or simple copying, and d) what the effect of that work might be on the market for the original. But (not surprisingly) I think he’s wrong too.

Does the Lexicon use a lot of stuff from the Potter novels? Of course it does — it’s like an encyclopedia, or a concordance to Shakespeare; it has to use as much as possible (paradoxically, the judge rules against the Lexicon because it uses too much content from the Potter books, and then later says that it isn’t protected as a scholarly work because it isn’t scholarly enough). Is it transformative? I don’t see how it can be otherwise. It certainly isn’t anything like a regular Potter book; it’s just a compendium of facts and descriptions (for what it’s worth, Tim Wu seems to agree with me in a piece he wrote for Slate).

As for the effect on the market for Rowling’s novels, I don’t see how it could affect that. Would you rather read a Potter book or a big book that listed all the characters and events in order? In fact, interestingly enough, the court didn’t see that as a problem either — however, the judge said it would affect the market for lexicon-style books that Rowling might want to produce herself. That seems to be to take the “market effect” test and stretch it all out of shape. So now no one should be able to produce any derivative work because the author might someday want to copy that work? I hope that someone appeals this decision.

  • http://www.technovia.co.uk ianbetteridge

    “paradoxically, the judge rules against the Lexicon because it uses too much content from the Potter books, and then later says that it isn’t protected as a scholarly work because it isn’t scholarly enough.”

    Hmm. That isn't actually paradoxical. A true “scholarly work” isn't measured by how much of something it cites, but by whether there is “original research” involved in it. Otherwise, I could potentially republish the whole of (say) Potter 1 as a “scholar's edition” and simply claim that it was protected as a scholarly work because I'd cited it in its entirety. Sounds like a daft argument, but hey, this is the law we're talking about… :)

    It's also worth remembering that with the “four factors”, you don't need to fail all of them – they're “standards” rather than rules – and even failing just one or two can outweigh all the others. If, for example, I produced a version of Potter which annotated the entire text with high quality, scholarly research, the fact that I'd quoted the entire text and sold it (or given it away) would outweigh the original work I'd done.

  • http://carrieanddanielle.com Daniel Gibbons

    It's probably not so much J.K. Rowling who's wrong here as it is the army of movie and merchandising interests who stand behind her brand. These are the sort of idiots who most likely believe that any sort of common sense approach to copyright will open the floodgates.

    Not trying to excuse her, since of course the final say is hers.

  • http://www.mathewingram.com/work mathewi

    Fair enough on the paradox point, Ian. But still, how is a reference work or concordance supposed to work if it doesn't quote all the important stuff from the thing it is referencing? And if you produced a scholarly book filled with research that quoted the entire text, then I think you should get a fair use pass as well.

  • http://www.technovia.co.uk ianbetteridge

    Well think of the consequences of allowing scholorly research to quote an entire text without permission. Suppose I'm the publisher of Ripoff Books Inc, a company which really doesn't like to pay authors (weasels, the lot of them!). So, I take the new edition of “Harry Potter and the Order of Copyright Lawyers”, and reprint it with some “scholarly” comments in small type at the margins. Ones that, you know, I've made up.

    I sell it, $20 cheaper than the original, calling it the “expanded scholars” edition. Rowling's sales tank, because my edition is cheaper (which is easy when you don't have to pay the author). She goes back to being unemployed, and I rake in the cash. Woot!

    Is that fair use? I suspect most people would say “no”. I'm not adding any value, for a start. But even if I was, would the value of my additions give me the right to reduce the value of Rowling's work, by producing something which could effectively replace that work?

    The point is that there are – and should be – no hard and fast rules to what is “fair use”. Quoting everything without permission – even for scholarly purposes – is hard to justify, although there may be edge cases where it's fine. Like wise, taking even small sections out could be unfair.

    You're totally right to identify that copyright exists for the benefit of all of us, not just those who create original work. And that's why it's complex – and why saying that Rowling is totally wrong is overstepping the mark. She might have a case. She might not – and without looking at the work involved, I can't really say. But there's no automatic carte blanche to scholarly work, even if it does add genuine value.

  • http://www.rgdirect.com Scott

    Legally aside, it's tactically unsound to quash what is basically fandom.

    One thing that comes to mind is size. If someone was to publish a lexicon of what was a little known work, I doubt the author would be upset, and more likely would just be happy for the attention. But once something is well known enough, I guess diminishing returns on awareness kicks into play and it starts screaming copyright infringement like it's Golum and someone has “my precious”. Check that; if you're looking at fame and fortune in terms of size it looks more like a giant or dragon bellowing outrage that some little squirt just swiped a tiny piece of your horde.

    Even if you do prove that it is theft, you still look petty.

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  • http://www.birseyindir.net/ indir

    Fair enough on the paradox point, Ian. But still, how is a reference work or concordance supposed to work if it doesn't quote all the important stuff from the thing it is referencing? And if you produced a scholarly book filled with research that quoted the entire text, then I think you should get a fair use pass as well.

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    Great article, man. Keep up the good work and please do keep sharing.

    Thanks in advance!

    Mike

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