Who owns how much of Harry Potter?

From The New York Times (9 February 2008):

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. 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. Falzone and the other lawyers at the Fair Use Project are taking the side of RDR Books, a small book publisher in Muskegon, Michigan, which is the defendant.

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 also probably see, the case revolves around Harry Potter. 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, meanwhile, holds the license to the Harry Potter movies. And though Warner appears to be footing much of the bill, Rowling appears to be the party 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, a former school librarian who for the past half-decade or so has maintained a fan site called the Harry Potter Lexicon. The Lexicon prints 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. In sum, it’s a Harry Potter encyclopedia for obsessive fans.

So long as the Lexicon was a Web site, Rowling looked kindly upon it; she once gave it an award and claimed to use it herself at times. But when Vander Ark tried to publish part of the Lexicon in book form – and (shudder!) to make a profit from his labors – Rowling put her foot down. She claims that she hopes to publish her own encyclopedia someday and donate the proceeds to charity; a competing book by Vander Ark would hurt the prospects for her own work.

But more than that, she is essentially claiming that the decision to publish, or to license, 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,” 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 in the case of the Lexicon, he said, “these guys refused to contact us.”

“They refused to answer any questions,” Blair said. “They refused to show us any details.”

They fall in line. There, in that one angry sentence, lies the reason that Falzone and his colleagues have agreed to help represent RDR Books. And in a nutshell, it’s why Lessig decided to start the Fair Use Project.

It’s a tad ironic that this dispute centers on a book, because ever since the recording industry began suing 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 very long time now, copyright holders have made a series of concerted efforts to both extend copyright protection, and to 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 the extension. Today, corporate copyrights last for 95 years, while authors retain copyright for 70 years after their death. The most recent extension of copyright, passed by Congress in 1998, was driven in no small part by Disney’s desire to prevent Mickey Mouse and several of its other classic cartoon characters from falling into the public domain.

. . . .

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. Lessig likes to cite a recent, absurd case where a mother put up on YouTube a video of her baby dancing to the Prince song “Let’s Go Crazy” – and Universal Music promptly sent her a cease-and-desist letter demanding that she remove the video because it violated the copyright.

There is no question that these efforts have had, as we like to say in the news business, a “chilling effect.” Roger Rapoport, who owns RDR Books, told me that ever since the case was filed, he has heard dozens of horror stories. “One university publisher told me they have given up literary criticism because of this problem,” he said.

. . . .

About a decade ago, though, Lessig decided to fight back. His core belief is that copyright protection, as he put to me, “was meant to foster creativity, not to stifle it” – yet that is how it is now being used. He fought the copyright extension of 1998 all the way to the Supreme Court. (He lost.) He founded a group called 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 founded the Fair Use Project to push back against, well, against copyright hogs like 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 why we’re all so much more aware of copyright than we used to be. But it has long been true for writers, film-makers 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, for instance. 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 portrays the use of torture at the CIA. Fox denied his request. 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 work of someone else – so long as the new work adds something new and isn’t simply a rehash of the original. There are dozens of companion books to the Narnia chronicles, for instance, or the works of J.R.R. Tolkien.

. . . .

And, in a roundabout way, that gets us back what the Internet has wrought. For, as Lessig points out, “anybody who owns a $1,500 computer” can now create culture that is based on someone else’s creation. Indeed, we do all the time – on Facebook, on YouTube, everywhere on the Internet. If the creation of that content is deemed to be a violation of copyright, Lessig said, “then we have a whole generation of criminals” – which is terribly corrosive to the society. But if it is fair use, as it ought to be, then it becomes something quite healthy – new forms of free expression and creativity.

Link to the rest at The New York Times

From the U.S. Copyright Office:

More Information on Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
  • Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
  • Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the factual circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.  

Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use. 

Link to the rest at U.S. Copyright Office

PG says that, while there are areas of legal clarity regarding what is and what is not fair use under US copyright law, the boundary between those two sets of rights includes some gray areas.

If you look at the Copyright Office explanation above, you’ll find a list of fundamental descriptions of fair use:

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
  • Nature of the copyrighted work
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • Effect of the use upon the potential market for or value of the copyrighted work

Concepts like purpose and character of the use, amount and substantiality of the portion used and effect of the use upon the potential market include a number of bright legal lines, but have also left quite a lot of gray areas that have been the subject of lots of litigation.

In the nature of litigation decisions, the more valuable the copyright, the more likely the owner of the copyright (or her attorneys) will be to carefully examine each instance where a work by another author seems similar in some ways to the original creation.

In addition to infringing the creator’s copyright, there is also an issue of trademark rights. As a general proposition, the title of a book is not protectable as a trademark. That said, “Harry Potter” is definitely a trademark and if you decide to publish a book titled, “Harry Potter and The Grinch,” you’re likely to hear from Ms. Rowling (or maybe Warner Brothers) and attorneys for Dr. Seuss Enterprises, L.P.

Here’s a link to the details about the U.S. trademark for The Grinch.

8 thoughts on “Who owns how much of Harry Potter?”

  1. Typical of the NYT to focus on the dead tree pulp instead of the content in tbe container.
    (As if book vs anything else means anything to the issues at hand.)

    This should be interesting (with a lot of ramifications) as the core of the matter is the backstory, leavened with a cup of “authorized derivative”, and a frosting of commercial vs non-commercial discrimination.

    No idea how it’ll break, but my own kneejerk reaction is against anything Lessig is for. 😉

    • Rowling – sort of. The book, as written, was prevented from being published. The judge awarded the minimum of $750 damages on each of the novels and the two side books.

      The ruling was rather carefully made, though. It specifically noted that “reference” works are not, per se, in violation of a copyright. What the judge found, though, was that the proposed book used far too much of the source material, either verbatim or barely paraphrased, and was not at all “transformative” in that very little commentary or analysis were included.

      RDR started an appeal, and then dropped it. They later came out with a book that apparently avoided the problems that caused the ruling against them. I don’t see anything where either Warner or Rowling opposed that one.

      • I disagree even more now than I did at the time.

        Warner Brothers won. Rowling was along for the ride (and fulfillment of her contractual obligations to Warner). And in the end, this was a mixed trademark and copyright matter, so screaming “But fair use!” begs the question of “trademark fair use or copyright fair use?”, let alone the varieties of fair use in each. And that’s before considering the differences between fair use and fair dealing…

      • Glad someone mentioned above this was a 14 year old article! 😉 Course, my initial response was “seems cut and dried to me that RDR doesn’t stand a chance” – and it appears they didn’t, for the most part. Also, the writer of the article certainly seemed to side with the RDR folks.

        Thanks, Mr. Observer, for looking up the pertinent info.

  2. I don’t understand why this discussion focuses on fair use and never even mentions derivative works. IANAL, but the Lexicon seems derivative to me. Am I not understanding what it means?

    • This made me curious. I am not a lawyer, but I think the answer is that the US copyright office doesn’t define encyclopedias as derivative. They generally hold things like novelizations of movies, or movie adaptations of books, or sculptures based on drawings, and drawings based on sculptures (and so on) to be derivatives. Annotated versions of stories count as derivative, along with translations.

      But encyclopedias are classified as collective works, a subcategory of compilations, rather than derivative works. Even for collective works the copyright office still requires originality on the part of the compiler. Writing Observer above says the guy lost the case because he didn’t do enough original work; he copied too much of the source material.

  3. If “derivative work” were applied too strictly, no one could review a book. The review would not exist without the book, and it addresses characters, plots, scenes, and themes that come from the book. So there has to be a gray line between literally derivative and legally derivative.

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