The “New York Times”:http://www.nytimes.com/2008/02/09/business/09nocera.html?_r=2&oref=slogin has an interesting piece on the efforts of J.K.Rowling to stop a Harry Potter lexicon from being published, on the grounds that it ‘hijacks’ Rowlings’ name and work.
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.
David Langford, an author of one of the ‘huge number of companion books’ had an essay (unfortunately not online) in the October 2007 “New York Review of Science Fiction”:http://davidghartwell.typepad.com/ which sheds some light on the process of falling-into-line.
who in the world actually reads publishers’ catalogues? The answer turned out to be: J.K. Rowling’s literary agents. Stern legal warnings were soon issued. I next met Malcolm Edwards at another literary booze-up … “Spoilers are out,” he explained, or words to that effect. … This, frankly, was something of a relief. I can’t quote the exact words of the official warning-off. The gist of it was that the literary agency had somehow got legal advice that to speculate in print about possible storylines or outcomes of the final Harry Potter book could well infringe J.K. Rowling’s rights, and indeed that they had used this advice to scupper some other unspecified project … Suddenly I was filled with a bold, defiant urge to hide under the table.
In spite of this alarming communication, Malcolm Edwards and Gollancz were reassuring. My own book was to be all fair comment, and even the title had been cunningly chosen for safety. We knew that _Harry Potter and the Ivory Tower,_ a book of academic essays published in America in 2002, needed to rebrand itself as the totally different _The Ivory Power and Harry Potter._ For this reason, _The End of Harry Potter?_ had deliberately not been called _Harry Potter and the End Of._ All the same, I can tell you it feeds an author’s natural paranoia to have the men in wigs scanning every paragraph for naughty infractions. … thanks to all the legal consultations and some printing delays, the book missed its advertised launch date of October 2006 and didn’t appear until November.
The demand to change the title of _Harry Potter and the Ivory Tower_ seems perfectly fair game to me – it might reasonably have confused many buyers into thinking that this was a new book in the original series. But the claim by Potter’s literary agency that speculation in print about possible storylines and endings might infringe copyright sounds completely over the top, and suggests that there is a real and systematic problem here. Neither the Harry Potter books themselves, nor the various forms of paraliterary activity that have come into being around them are particularly my thing, but I think it’s a very good thing that Lessig et al. are taking on this case – it looks to me to be a real overreach (especially, as “it appears”:http://news.ansible.co.uk/a247.html that the Lexicon’s use of Potter’s material is well within the boundaries of fair use. One of the regular “commenters on this site”:http://www8.georgetown.edu/departments/government/faculty/dhn2/ has co-edited “another book”:http://books.google.com/books?hl=en&id=DKcWE3WXoj8C&dq=daniel+nexon+%22harry+potter%22&printsec=frontcover&source=web&ots=Gx-AXnndky&sig=uEGHLhXFscbKwy2Azlhb2J8A_Tg#PPP2,M1 in the Harry Potter _corpus_ – it would be interesting to know whether he and his co-editor faced similar problems.
{ 24 comments }
Spoon 02.11.08 at 10:21 pm
There’s more to this case than meets even Lessig’s eye. The issue is not just that the rest of the crop of books “fell in line” with Rowling’s wishes, it’s that the Lexicon has nothing original to add as a book. “The Ivory Tower and Harry Potter” can add interesting things to the discourse — it’s fair use. The Lexicon is more of an encyclopedia — that is, there’d be no new spin on the material, merely a reiteration of facts in Rowling’s universe.
Discussion of this in fannish circles has (obviously) been verbose and somewhat confusing, but the bottom line seems to be: The Lexicon in book form probably isn’t fair use because it adds nothing new to the discourse; additionally, RDR Books have been ridiculously inept in explaining how the book is fair use.
(Explanation of the situation as of three months ago is here; a terrifyingly complex (and snarky) summary of events is here.)
dsquared 02.11.08 at 11:09 pm
I think Lessig’s wildly out of line here.
They are her intellectual property. And in her view, no one else can use them without her permission.
it’s not a matter of “in her view” – they’re her characters. I don’t see how a “Harry Potter lexicon” which consists entirely of paraphresis of her work (as in, every left hand word will be an invention of hers and every right hand definition will be a paraphrase of what she wrote about that word) can possibly be “fair use”. It’s a derivative work in the most pejorative sense possible.
Backword Dave 02.11.08 at 11:37 pm
Oh, I hoped to be controversial and everything, but I agree with the other two, especially D2’s last sentence.
Kate Nepveu 02.11.08 at 11:51 pm
Note that the lawsuit was filed after the publisher refused to disclose a copy of the book, so that Rowling could only work off its public statements, which were that it was a print-out of the Lexicon and which as Ansible described would be on extremely risky ground. I haven’t been following developments closely since, but based on Rowling’s statements in the request for a permanent injunction, I’m fairly comfortable with her position WRT fandom (as part of that fandom).
Norman David Gerre 02.11.08 at 11:56 pm
Oh, I don’t know. A lot of it obviously qualifies as original research, if trivial. He explains the allusions, for example: the Latin roots of the words for spells, the myths that Rowling’s magical creatures are based on, and the mythological/historical sources of various names.
It pulls in information from interviews etc. It points out inconsistencies and errors.
There are hundreds of unofficial companions to this or that book or television series, so this can’t be without precedent.
Dr Paisley 02.12.08 at 2:51 am
Perhaps if they get a Tolkienesque quote for the back cover. “Those who approve of courtesy (at least) to living authors and their multi-billion pound franchises should purchase the official lexicon, and no other” should do it.
Matthew Kuzma 02.12.08 at 3:11 am
I think copyright laws are horribly broken especially here in the States. I’ve often thought the best illustration of this is to think of what our world would be like if patents had the same duration as copyrights. For instance, that Ford Motors would still be the only company legally allowed to make cars, a fact that would last until 2022. We might not even have computers, since their invention relied heavily on many previous technologies, and if they had been invented, chances are good IBM would be the only company allowed to make them.
Sortition 02.12.08 at 5:19 am
Rowling’s attitude is true to the spirit of her work. The masses are expected to read, admire and pay. They must not presume to be part of the action.
Katherine 02.12.08 at 8:38 am
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. >/i>
Since she has in fact done this many times – produced something as a companion to the books and given the proceeds to charity – it seems somewhat churlish to write “she claims”. Complaining about publication of a book using her characters making money for someone else when she wants to do roughly the same thing herself but for charity? What a bitch!
dsquared 02.12.08 at 9:34 am
For instance, that Ford Motors would still be the only company legally allowed to make cars
? are you 100% sure that Henry Ford invented the motor car?
ajay 02.12.08 at 11:55 am
10: no, but you know he would have won the patent battles.
Patrick Nielsen Hayden 02.12.08 at 11:56 am
Maybe I’m missing something, but “consists entirely of paraphresis of her work (as in, every left hand word will be an invention of hers and every right hand definition will be a paraphrase of what she wrote about that word)” sounds like it could describe any number of concordances, “encyclopedias,” and guidebooks published, without unnecessary “authorization,” about the (modern, copyrighted) work of authors ranging from Joyce to Tolkien. Failing evidence that there’s something outrageously different about this Potter concordance, I’m inclined to take a dim view of what Rowling and her lawyers appear to be up to.
MR. Bill 02.12.08 at 12:20 pm
I think we are overlooking the source of Ms. Rowling’s discomfort: no royalties from a derivative work. She has a brand to protect, after all…
Person 02.12.08 at 2:52 pm
#7: Funny that you mention Ford. They actually recently sued to stop a group from publishing a “Black Mustang Club” calendar, which has pictures of Ford products. Seems to be part of a trend to expand trademark from “You can’t sell an imitation product and claim its the real thing” to “You can’t make any money on anything that references the product.”
I can understand if Ford wanted to keep them from putting Ford logos on the calendar (i.e. above and beyond what is on the cars being photographed), or wanted them to put a note that verifies it’s not an official Ford calendar, but it looks like that’s not all they wanted.
Btw, can someone real quick remind me what my position is supposed to be on this? Am I supposed to support intellectual property as favoring “the workers”, or should I be seeing it as a way to keep the “big corporations” in charge?
dsquared 02.12.08 at 3:06 pm
Maybe I’m missing something, but “consists entirely of paraphresis of her work (as in, every left hand word will be an invention of hers and every right hand definition will be a paraphrase of what she wrote about that word)†sounds like it could describe any number of concordances, “encyclopedias,†and guidebooks published, without unnecessary “authorization,†about the (modern, copyrighted) work of authors ranging from Joyce to Tolkien
Don’t know about Tolkien, but in the case of the Joyce Estate, all of those concordances and guidebooks (or at least, all those I could find on Amazon) require the co-operation of the Estate, all of them thank the estate at the start and IIRC Lessig is already engaged in litigation with Stephen James Joyce. In the case of a living author rather than an estate I think he’s got even less of a case.
Henry 02.12.08 at 3:40 pm
I had a comment up which seems to have disappeared mysteriously overnight – clearly the owners of this site are guilty of arrant censorship. Anyway, roughly recapitulating and updating where appropriate …
I am not a copyright lawyer, obviously, but the claim that they are ‘her’ characters doesn’t seem to me to be a good basis for argument. People are entitled to comment on, and to speculate on ‘her’ characters all they want, and it seems to me that this Lexicon is doing just that. It’s clearly transformative, won’t be confused by people with the original work, and apparently doesn’t go beyond the boundaries of fair use (as best as they can be discerned) in its use of quotations etc. There was some ambiguity about the last of these points, but the Ansible link suggests that it has been cleared up. It seems to me that if you put this together with DL’s account, the Harry Potter people are pushing a highly expansive set of claims about their intellectual property rights, at least with regard to commercial uses. It’s quite right of Lessig to push back against this. Also, I’m inclined to think PNH knows this stuff pretty well, seeing as it touches on his daily breadwinning activities.
J.K. Rowling’s motives for writing her own encyclopedia are pretty well irrelevant to the rights and wrongs of this case, although they’re clearly relevant to our assessment of her character (she seems to be a fairly decent person, as best as I can figure it out). If I rob a bank to give money to the poor, it’s not going to stop the judge from sending me to chokey if I’m caught, nor should it. This is an argument about rights (and whether they have been exceeded), not the purity of motivations.
Sortition’s comment seems to me to be off-base. As I understand it (correct me Kate or Patrick if I am wrong) the discomfort of fandom with this Lexicon stems from the fact that JKR has not gotten at all steamed up about non-commercial uses of her work, including some that obviously go way beyond the boundaries of fair use. It’s only the commercial stuff that she and her lawyers are upset about. The Lexicon project, which takes something that was once a non-profit bit of fandom, and turns it into a commercial product (while stripping out the bits that couldn’t pass muster with the lawyers) threatens to upset this happy equilibrium. I can understand why fans may take this view; I also understand why Lessig is doing what he is doing, and personally opt for the Lessig position. But the bottom line is that JKR has been remarkably tolerant about _non-commercial_ uses of her characters, contrary to what sortition says.
dsquared – I had a bit in the previous version of this comment on the Joyce case, which has been “settled”:http://lessig.org/blog/2007/03/shloss_v_estate_of_james_joyce.html in a deal that mostly favours the plaintiff. On the level of personal motivations (which should not be the level we analyse this stuff on, but which is the stuff of our gut reactions), I have to say that I completely understand where Stephen Joyce was coming from. He has the well-deserved reputation of being a first-class pain in the arse and control freak, but if some academic was speculating on the basis of bad psychoanalytic and literary theory together with strained readings of texts that a beloved family member had sexually abused his daughter, I’d do everything in my power to make that academic’s life difficult too.
Nick 02.12.08 at 5:01 pm
I wonder if the ban on speculation “about possible storylines or outcomes of the final Harry Potter book” was designed to protect Rowling from plagiarism lawsuits by people who guess correctly: “Hey, she used my idea without my permission. I should get a cut of the profits.”
Righteous Bubba 02.12.08 at 5:09 pm
Btw, can someone real quick remind me what my position is supposed to be on this?
Posted by Person · February 12th, 2008 at 2:52 pm
You’re to riffle through the phone book, discover the existence of other Harry Potters and announce that Mrs. Potter came up with Harry first.
Sortition 02.12.08 at 10:52 pm
As long as you are running a fan website, it is acceptable, and even desirable, passive admiration. Publishing a book crosses the line into unacceptable presumption to take an active, independent part.
Picador 02.13.08 at 7:32 pm
dsquared:
Your comments about character copyright highlight one of the great unresolved internal contradictions of US copyright jurisprudence. Copyright, we are told in every judicial opinion on the subject and in the US civil code, protects “expressions” but not “ideas”. The law creating a copyright in a literary character is entirely at odds with this notion. Character copyright is a bizarre outgrowth of trademark law, imported wrongfully into copyright jurisprudence by overreaching Hollywood judges. That’s one of the reasons that disputes like this end up being so bewildering: the legal theory behind Rowling’s position contradicts the core ideas of copyright law, even while it has unambiguous legal precedents to back it up.
If I can write a book whose text and structure bear no resemblance to Rowling’s works, but take as their protagonist a young man named Harry Potter with a strange mark on his forehead, no protectible “work” of Rowling’s has been unlawfully “copied”. A derivative work is measured by the amount of actual expression copied: short phrases are not copyrightable. The two words “Harry Potter” most certainly are not.
Of course, my “Harry Potter” novel may well be a trademark infringement, but that is an entirely different body of law, crafted to protect consumers, not authors. The legal decisions making this an infringement of copyright are laughably incoherent; in reading them, it becomes clear that the plaintiffs sought an end-run around the burdens of proving a trademark case, and the California judges decided to give them a free pass. That they’ve been followed is a disgrace to the American judiciary.
Jessica 02.14.08 at 9:27 am
The world of Harry Potter as a part of our culture (as opposed to Harry Potter the books before anyone has read them) is not the product solely of J.K. Rowling. All those who have read the books and seen the movies took part in creating this part of our culture. After all, some part of the interest, excitement, and willingness to pay for books/movie tickets comes not from the books and movies themselves but from the fact that so many others are also reading/seeing them.
The role of each individual reader/movie-goer is miniscule compared to Rowling’s. Even the role of all the readers/movie-goers combined is less than Rowling’s. But it is not zero and it is not negligible. But it is completely ignored by copyrights and this reduces our cultural wealth for the sake of the author’s financial wealth.
I would prefer to correct this imbalance.
An author should have the right to a share of any spin-off that profits from what they have created and should have the right to suppress anything that harm what they have created. The clearest example of this would be porno knock-offs. But they should not have the right to suppress derivative cultural creation just because they want to or just because it is derivative.
I would also be willing to have more protective rules (ie the current ones) for almost all authors but more balanced ones (ie the ones I outlined above) for authors, musicians etc. who have already earned, let’s say $10 million dollars or more.
shteve 02.14.08 at 1:11 pm
The legal decisions making this an infringement of copyright are laughably incoherent; in reading them, it becomes clear that the plaintiffs sought an end-run around the burdens of proving a trademark case, and the California judges decided to give them a free pass. That they’ve been followed is a disgrace to the American judiciary.
Richard Stallman insists that the term “intellectual property” be abandoned because it entwines three very different strands of law as if they were based on a single concept.
Don’t know anything about the California judges, but the desire to protect software seems to have been the engine that drove the law to overreach itself. Yes, Microsoft to blame – again!
Kathryn Cramer 02.15.08 at 8:50 pm
Trademark allows for an aggressiveness that mere copyright law does not facilitate. As I recall, the Edgar Rice Burroughs estate was able to use that to prevent reprintings of Tarzan material on which they had failed to renew copyright and which was in fact in the public domain.
One of the other key aspects is that one should not argue copyright or trademark with someone who has more money than you do. If they have enough money and enough lawyers, you will lose even if they don’t win. (That last is part of practical copyright folklore.)
Elayne Riggs 02.17.08 at 7:24 am
Good for Rowling, I say. Why should anyone else profit from her ideas without her permission? If people can’t see the difference between sharing a lexicon free online and MAKING MONEY from someone else’s universe without their imprimatur, they have a very poor grasp of copyright and trademark law.
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