Intellectual Property

Hogwarts Law School

Dispatch from a conference on copyright

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Harry Potter gets along with his fans. Some media companies fire off menacing legal threats at the first sign that someone might be doing something unauthorized with one of their characters, but J.K. Rowling and Warner—the author of the Harry Potter books and the studio behind the Harry Potter movies, respectively—have had a generally tolerant attitude toward the amateur fiction, home movies, and online guides created by the boy wizard's fan base.

So some were surprised last fall when Rowling and Warner sued to stop RDR Books from publishing Steven Vander Ark's The Harry Potter Lexicon. The Lexicon is essentially a hard-copy version of Vander Ark's website, which collates information about the Potter series; the site is filled with detailed lists of the peoples, places, spells, and creatures that inhabit Rowling's world. Much of the text was drawn directly from Rowling's books, prompting the novelist to argue that Vander Ark intends to make money by repackaging her words. It's unclear how the courts will rule, but I'm inclined to agree with Columbia Law School's Tim Wu as to how they should rule. Wu wrote in Slate that Rowling "has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't….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."

Yet even if the courts end up agreeing with Wu, Vander Ark has lost a more important battle. The Harry Potter fan community has overwhelmingly sided with Rowling, shunning Vander Ark and denouncing him with such phrases as "arrogant, egotistical, self-absorbed jerk." The reasons for this reaction are complex. In part it reflects the difference between a book sold for profit and a website offered for free. In part it reflects allegations that Vander Ark misled potential contributors into believing his book had Rowling's blessing. In part it simply reflects the fact that fans are predisposed to agree with their favorite authors. The case hasn't been decided yet, but in the court of his peers Vander Ark will be punished—is being punished—either way.

Speaking at the OnCopyright conference in Manhattan on May 1, Wu pointed out just how sharply this cuts against most people's expectations. Ordinarily we assume that the fan norms surrounding intellectual property will be looser than the letter of the law. This time, the law may be more permissive than the fans.

The conference was sponsored by the Copyright Clearance Center, a company that helps guide businesses, universities, and others through the thicket of licenses and permissions required by intellectual property law. There were four panels over the course of the day: one on copyright's collision with technology, one on copyright and society, one on copyright and the arts, and one on copyright and the law. The speakers ranged from industry figures eager to strengthen intellectual property controls to radicals ready to dump some rules into the harbor.

But the most important division on display wasn't the split between the conservatives and the reformers. It was the line that divided the law panel from all the others. The former featured three intelligent attorneys debating how the law should be interpreted and what the law should say. The latter featured artists, journalists, entrepreneurs, activists, and academics grappling with a world where people's behavior is governed much more by tools and norms than by statute books.

Kevin O'Kane, for example, is the man behind redlasso, a service that makes it easier to search for ongoing and recent TV and radio broadcasts, extract the parts you want, and drop them into the context of your choice. You could, for example, find all the references to the word "Myanmar" in the last 12 hours of TV news, pull out the appropriate clips, and add them to an online news commentary. The result, O'Kane hopes, will be an "online media center for bloggers."

There may come a day that CNN or Fox or a local broadcaster in Iowa City decides that this useful tool is a machine for piracy and takes redlasso to court. But you need only visit YouTube, Crooks and Liars, or any video-heavy blog to see that the Web already welcomes such efforts to recycle what used to be perishable content, that this enriches our ability to discuss the issues of the day, and that people across the political spectrum engage in this behavior without pause. If the law thinks they're wrong, then our norms may know something that our laws do not.

Nor did this informal borrowing begin with the Internet. On the arts panel, the novelist Jonathan Lethem spoke about the imitation and appropriation that has always been embedded in creative activities. Every artist begins by copying, he said, and some of the best—he singled out William Shakespeare and Bob Dylan—keep borrowing until the end of their life. This is part of the creative process, he argued, and it should be welcomed rather than banished.

Lethem has covered this territory before. Last year he contributed an article to Harper's called "The Ecstacy of Influence: A Plagiarism"; it not only touted the virtues of quoting and appropriating other people's work, but was itself largely stitched together from other writer's words, a fact revealed at the end of the essay when he listed the texts he had pilfered. It was a clever stunt, but it highlighted something important about creativity: not just the fact that writers draw on other people's work, but the fact that the best writers transmute those influences into something of their own. Lethem's novel Gun, With Occasional Music carries a critic's quote on the cover declaring that it "Marries Chandler's style and Philip K. Dick's vision." It's a good description: The book, a murder mystery that features talking apes and kangaroos, feels like a mash-up of Raymond Chandler's hard-boiled crime writing and Philip K. Dick's surreal science fiction. But it's impossible to imagine either Chandler or Dick producing this particular story. It's part Chandler, part Dick, and all Lethem.

The book also says something about what the world would be like without that free-flowing creative exchange. Where other dystopian novels imagine states that force individuals into a suffocating collective, the totalitarian society in Gun keeps people apart, by limiting the questions they can ask and the memories their minds can contain. The result is a world without communication and a world without a past—a world where every thought is an orphan work.

Not even the most militant copyright maximalists would consider that desirable. But even if they tried to impose such a restrictive regime, they'd be helpless in the face of technologies that make it easy to defy antiquated copyright rules, and in the face of norms that put more gentle restrictions on our behavior. The OnCopyright conference didn't give me the impression that the lawyers were on the verge of fixing America's intellectual property laws. But it did bolster my faith that we'll manage to muddle through anyway.

Jesse Walker is reason's managing editor.

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  1. I hope the issue is: How much does the Lexicon serve as a substitute for the original works, vs. how much does it discuss the original works? The 1st function would be unfair competition with the originals, the 2nd function stands to actually increase the value of the originals. Could be a tough call.

  2. Wasn’t Rowling mostly upset because she intended to publish her own lexicon? It muddles up the distinction between unfair competition and increasing the value if that’s true.

    On the other hand, she didn’t even have a problem when he was giving it away for free online (which he still is as far as I know).

  3. Rowling’s planning to publish an encyclopedia of Harry Potter’s wield and this would seem to conflict with that. I can see that she would have a problem with someone trying to profit from her work without her permission.

  4. Jesse,
    Was there no one to speak up for the radical libertarian idea of dumping copyright altogether?

  5. Rowling’s planning to publish an encyclopedia of Harry Potter’s wield and this would seem to conflict with that.

    Tough. You can’t copyright what you haven’t published yet.

  6. I don’t get people siding with Rowling over this. But maybe I am more familiar with third person created guides to author’s works than most of her readers. And if she is suing him because of her planned Potterapedia, wouldn’t that be a pretty good example of rent-seeking?

    Rich people can be so testy.

  7. Wasn’t Rowling mostly upset because she intended to publish her own lexicon? It muddles up the distinction between unfair competition and increasing the value if that’s true.

    And it muddles up the issue of plagiarism. It could be a case of Rowling plgiarizing the web site.

  8. You can’t copyright what you haven’t published yet

    I thought that copyright attached as soon as you had the work fixed in any tangible medium. Plus, wouldn’t her lexicon count as a derivative work and thus fall under the original copyright?

  9. So many people who discuss this and take your view have no idea of the content of the Lexicon. In what way is a list of JK Rowlings’ characters, places, and things a discussion? Vanderark compiled a list and alphabetized it – that is ALL; he did NOT write analytical essays. It is in no way a “discussion” (it’s not even an adaptation). There is no original content. Rowling still owns the copyright.

  10. Bah! Harry Potter saves the entire human race and goes on to become…a bureaucrat. How inspiring.

  11. J.K. Rowling is a one trick pony, albeit a fantastic trick. Let her milk that sucker for all it’s worth.

  12. TWC,

    Will the milk be pasteurized?

  13. “So many people who discuss this and take your view have no idea of the content of the Lexicon. In what way is a list of JK Rowlings’ characters, places, and things a discussion?”

    That is a valid question to pose. I tend to think that the act of defining something necessarily includes value judgments and discussion. The question is whether a guidebook is more like a review of the work or more like an unauthorized sequel. Admittedly, guidebooks can be part of the overall marketing plan for a series of books. Ultimately, Rowling owns the characters but does not own the fact that the characters exist.

    JK Rowling created a character named Harry Potter, who is a wizard. If Rowling gets her way, I just committed copyright infringement by publishing the facts surrounding the characters she owns.

  14. Lamar, the difference is that you didn’t profit from that comment. At least, I think that has something to do with it, as IANAL.

  15. Wow, good comments from the Reason readers.

    You’ve shown in a very abrupt way how complicated some of these issues can become very quickly, alot of you raised valid questions. I think that this is one case for the courts to decide on its indivual merit.

  16. Harry Potter is crap!!!

    Is the Urkobold pleased?

  17. I thought that copyright attached as soon as you had the work fixed in any tangible medium.

    True. However, its very hard to come forward after your rival publishes his lexicon and say “But I had mine written first, even though I didn’t publish it, and he copied mine, even though he never saw it”!

    Lamar, the difference is that you didn’t profit from that comment. At least, I think that has something to do with it, as IANAL.

    Nope. Copyright infringement occurs regardless of whether anyone gets paid.

  18. Harry Potter is crap!!!

    QFT

  19. I respect Rowling’s defense of her intellectual property, but this seems to be overreach. If Rowling wins this lawsuit, what’s to stop publishers from suing Cliff’s Notes?

  20. “Nope. Copyright infringement occurs regardless of whether anyone gets paid.”

    This is correct. Getting paid is just one of the factors that diminishes the fair use defense. However, using the fair use defense implicitly (explicitly?) acknowledges that the plaintiff (Rowling) had protected rights in the material used by the second author. In this case, the argument appears to be that Rowling doesn’t have rights to the facts surrounding the characters she created, and therefore there is no need to invoke fair use.

  21. It’s JKR’s hypocrisy that I find amusing about this whole thing.

    From Orson Scott Card’s recent editorial on this topic at rhinotimes.com:

    Mine is not the only work that one can charge Rowling “borrowed” from. Check out this piece from a fan site, pointing out links between Harry Potter and other previous works: http://www.geocities.com/versetrue/rowling.htm. And don’t forget the lawsuit by Nancy K. Stouffer, the author of a book entitled The Legend of Rah and the Muggles, whose hero was named “Larry Potter.”

    I urge you all to read the entire editorial. I can only dream of one day having a book series so successful that someone wants to actually go to the trouble of creating a database of events.

    It may be that JKR is legally in the right based on the specific laws being cited, but she’s finally destroyed even the small shred of admiration I may have once had for her with this self-inflicted PR nightmare.

    Even Prof. McGonagall knew when to turn a blind eye to the rules…

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