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Harry
Potter and the Order of the Judge
A
federal judge in Manhattan ruled on Monday that a 450-page
A-to-Z encyclopedia of Harry Potter minutiae infringed on
J.K. Rowling’s and Warner Brothers’ copyrights in the Harry
Potter books and films. It’s a difficult decision that cuts
against the recent trend of expanding the concept of fair
use of copyrighted works. Hopefully, the decision will be
appealed so the appellate court can take another look and
reverse what is basically a victory for the über-ownership
of information.
Basically, Steven Vander Ark, “a former library media specialist
at a middle school in Michigan,” had been compiling for years
a lexicon of Harry Potter facts online—the Web site was popular
among Harry Potter fans; J.K. Rowling herself said that she
referred to the site when she needed to get the facts straight
on her characters. About a year ago Vander Ark got a book
deal. Suddenly, Rowling wasn’t such a big fan anymore, and
in came the lawyers.
The court held an evidentiary hearing during the spring. Rowling
wept on the witness stand, saying that the mere existence
of Vander Ark’s book had destroyed her ability to write, raising
the possibility of a second career acting in bad afternoon
soap-operas. Vander Ark similarly broke down on the stand,
saying the lawsuit had caused him to fall into disrepute with
the Harry Potter community, suggesting that the rough-and-tumble
world of a middle school media specialist had left him, as
it has so many others, an emotional wreck.
Fair use cases have increasingly turned on whether the new
work (here, Vander Ark’s book) is transformational
of the first work. Here, the judge ruled that the encyclopedia
was indeed transformational, just not transformational enough.
The 62-page decision contains endless examples of “similarities”
between Vander Ark’s book and the Harry Potter series—a painful
thing to read, and when you think about it, kind of silly.
It’s an encyclopedia, for crying out loud; it shouldn’t
be a huge surprise to discover that it contains similarities
to the thing that it’s, well, encyclopedia-ing. But the judge
was bothered by Vander Ark’s verbatim copying, which he seemed
to think was excessive, leading to the bothersome conclusion
that had Vander Ark jumped through a bunch of needless hoops
and had simply done more paraphrasing, he would have
been alright.
The judge also put, in my view, way too much emphasis on the
obvious facts that the Harry Potter books were fiction and
that Vander Ark’s work was a profit-making endeavor in finding
that there was no fair use of Rowling’s works. I think the
judge also put too much stock in a couple aged decisions denying
fair use in similar situations, one involving a Seinfeld
trivia book and another involving a Twin Peaks fan
book, both of which I think would be decided differently today
given some more recent cases that have opened up the concept
of fair use to be more consistent with today’s exploding remix
culture.
In short, the judge missed the forest for the trees, over-thinking
and over-analyzing a simple matter that Vander Ark’s encyclopedia
was a transformative work that did the Harry Potter series
of books no harm at all; in fact the existence of the encyclopedia
enhances the popularity of the iconic series.
It’s cases like this that contribute to the paralyzing uncertainty
artists face when they have an opportunity to create something
new out of fragments of our culture, out of already-copyrighted
works. It’s certainly not surprising that Warner Brothers
added its muscle to Rowling’s case, like she can’t afford
platinum-coated counsel on her own. Warners, like all the
other Big Media players, want to stomp out fair use in all
its forms, so it can continue to charge us what economists
call “monopoly rents” for every single use we might make of
culture for whatever purpose. I mean, this is the company
that still makes $2 million a year on its questionable copyright
in the song “Happy Birthday.” And they say they’re “protecting
the creator.” Puh-leeze.
And you can also smell the Big Media hubris in its reporting
of the case: The headlines are proclaiming “Rowling Rules!”
and “Lexicon Crushed!” like this was some kind of slam dunk
that just got laughed out of court. Nothing could be further
from the truth. It wouldn’t take 62 pages to decide an easy
case. And the judge could have awarded Rowling damages of
up to $150,000 per infringed work. She got the minimum: $750
per, for a total of $6750.
This case simply must be appealed; hopefully the appellate
court will be able to take a step back, look at the big picture,
pull some legal wizardry, and turn this thing around.
—Paul Rapp
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