In papers filed for a lawsuit in Manhattan, J.K. Rowling says she feels betrayed by a fan, Steven Vander Ark, for his role in trying to publish an unauthorized reference work, "Harry Potter Lexicon."
Ark is editor of a Web site containing a fan-created collection of essays and encyclopedic material on the Potter universe, including lists of spells and potions found in the books, a catalog of magical creatures and a who's who in the wizarding world.
Despite how you may feel about the Harry Potter books, Rowling is an author who has generally smiled kindly on fan fiction and fan websites. And now she is being portrayed as the bad guy by invoking her copyright protections to prevent a derivative book from being created.
The offenders are arguing that since Rowling gave her blessing to their free website which contains much of the same information, she by extension granted them the right to profit from a book.
Let me give folks a brief lesson in copyright law:
The owner of a copyright, and only the owner of a copyright, has the right to create derivative work from his or her intellectual property.
The owner of a copyright has the right to determine how others may or may not use his or her intellectual property. The granting of some permission does not automatically extend to other permissions.
Fair Use, which is often bantered about by copyright thieves, has several limitations. One of which is whether or not the so-called fair use material interferes with the potential market value of the original IP.
These laws even apply to the publisher. For example, when we came up with the idea to create a free character download for The Grandmaster, I needed to get Peter's permission to do so. Even though I am the publisher of the book, the copyright remains with the author. And therefore only he can give the OK to create such derivative works.
In this case, Rowling has plans to publish her own Harry Potter Lexicon. The defendant in this case, therefore, would be in direct competition with the author and thus interfering with her ability to profit from her own work.
The repercussions of this case are important to both writers and fans. If the courts side with the defendant and agree that Rowling permission to create a free fan site extends to the publication of a for-profit book based on the site, then this will force all authors to in fact shut down all fan sites in order to protect their property. Many creators of popular characters do in fact enjoy interacting with their fans and appreciate the value fan sites bring to their work. But if the defendant is successful in this suit, creators will be put in a position that they cannot allow any use of their IP. If the courts side with Rowling, this reaffirms that creators can continue to allow the creation of fan-based works without worrying about the loss of other rights.
Some folks are obviously thinking, "She's got so much money, what is the big deal?" The big deal is that the laws that affect the small percentage of millionaire bestselling authors are the same laws that also affect the majority of writers that are not millionaires. If we accept that it is acceptable to profit from Rowling work without her permission, we have to be prepared to accept people profiting from our work...even if we haven't! I know a great many talented authors who do make a full time living with their writing, but they aren't rich by any means. And it would hurt their families and their livelihoods if others were allowed to just steal their IP and make money on it.
This is a case that can have serious consequences to both writers and fans alike. It troubles me how people think it is acceptable to steal the hard work of others and profit from it. Perhaps it is part of our culture of entitlement, where too many people think that just because they want something they should be allowed to have it for free, regardless of the time, effort, and care others have put into it.
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http://www.gather.com/viewArticle.jsp?articleId=281474977234427&nav=Namespace
and at:
http://www.unc.edu/~mason/hand.html
for your pleasure and enlightenment. (That last one has no ads.)
I have a genealogical site for the Lupo family and I discovered that another website copied passages of my articles verbatum onto their site without any attribution or a link back to my site. I contacted the owner of the site and his attitude was that I should be glad someone else was trying to get the word out. I'm thinking of having an attorney write him a nasty note threatening legal action if he does not remove the material or at least attribute it to me. I believe he also has a phone in radio show, so one day I may call in and ask him what he thinks about people who misappropriate other people's work as their own. If he's against it, I'll then ask why he's misappropriated my work.
That is a great website though, and no doubt already making a bit of money through advertising. It's a bit disappointing if this is what it was all about the whole time.
You are right on with this and I hope JK wins the case.
1. When determining whether copying is fair use, the standard is the effect on the market of the work copied, in this case, the Harry Potter novels. J.K. Rowling's hypothetical encyclopedia, because it doesn't exist, hasn't been copied and thus the effect on its potential market is irrelevant.
2. Unless J.K. Rowling knows less about her own characters than the authors of the Lexicon, her encyclopedia should contain inside information that will make it valuable to fans even if the Lexicon is published. Even if there's nothing new in Rowling's book, the fact that it has her official imprimateur on it guarantees a certain market even among people who buy the Lexicon.
3. Actually, this decision will have little impact on informational fansites like the Lexicon's web site (though it would have a huge impact on fan fiction sites). Rowling's permission might have allowed the Lexicon to quote huge chunks of the novels on its site that might have violated the fair use doctrine otherwise, but nobody needs J.K. Rowling's permission to talk about her novels, even in a public forum.
4. If you're a writer and you're not making a profit on your work, that's because either a) it sucks, or b) it's not the kind of work people are interested in reading. In either case, if your stuff isn't selling, there's no evil genius plotting to make millions of dollars on derivative works or commentary.
Kevin: Why would an honest person want to profit off of someone else's work? You make your own way in this world and when you stand before the Pearly Gates, you have to be able to look God in the eye. Let him make up his own lexicon of potions and such. I'm happy to teach others about writing stronger fiction, but I'm not going to let them steal my particular arrangement of words for PROFIT. Was he giving away the Lexicon? NO.
1. The effect on the market is just one of the factors taken into consideration when determining fair use. The purpose and character of use is another: is it commercial or not-for-profit? Does it serve the purposes of education and scholarship? Is it transformative or derivative? Does it add to the culture and encourage creativity?
2. Yes, but the same would apply to a derivative work of fiction--surely people would still prefer Rowling's novels, right? But that would not be allowed, so I suspect this is not a very strong argument.
3. True--people could talk about the books online. I'm not sure if they would be allowed to post detailed information about the characters in a systematic form or images from the books/movies.
4. True, but not relevant to the discussion. (Bit of an ad hominem, it seems to me.)
1. I was specifically responding to the factor mentioned in the article and in J.K. Rowling's suit. Her major argument in her complaint is that the Lexicon's encyclopedia will compete with her own encyclopedia that she hasn't written yet. The fact that the Lexicon's encyclopedia will be for profit does count against it as far as the nature of the use goes, but there are other factors, too.
2. For example, the fact that it's a reference muddies the waters. Sure, a derivative work of fiction would unquestionably be out of bounds, but reference and commentary are uses of a different nature. Furthermore, some fan's derivative fiction doesn't contain material endorsed by J.K. Rowling, so it would still be less valuable to the hardcore fan.
3. If nobody's allowed to post detailed information about the characters, then Wikipedia's in trouble too. Seriously, search Wikipedia for Harry Potter and see how many detailed profiles of the characters you find.
4. I was arguing against the article's contention that if Rowling loses this case, unknown writers everywhere are going to be vulnerable. Seriously, everybody thinks they're sitting on an awesome bestseller or work of genius, but if your work's not making a profit for you, odds are nobody else knows how to make a profit off it either.
Sarah H: So far, we don't know how extensively the printed lexicon's going to quote the novels, but it is quite possible to do an encyclopedia about Harry Potter without using extensive quotes that would violate fair use. Again, see Wikipedia.
I perfectly agree that the fact that the book would be a reference work muddies the waters, and the decision could go either way. (A friend of mine, sympathetic to the HP Lexicon (forum member, of course) suggested that perhaps they should put some literary analysis in there to take advantage of the protections afforded to such activity....)
You are right about the detailed information in Wikipedia too, but I believe there have been cases of fan sites being closed down for going too far.
I already said you were right about 4, but the discussion should really be about the facts of the case, not whether some beginning writers are entertaining delusions of grandeur. (The article makes no reference to "unknown writers", by the way, but to "the majority who are not millionaires". There's a whole range of possibilities between not making any money from writing and making it big like J.K. Rowling.)
Whether it is "less valueable" isn't really the point. One could argue that counterfeit sneakers and sweatshirts are "less valueable" to fans, but that doesn't make them any less illegal. In fact, it is clear that the author is deliberately seeking to gain financial compensation off of the IP of Rowling, knowing that there is a market that will but ANYTHING associated with Harry Potter. I suspect that many people would buy both books.
Also keep in mind that this isn't merely an academic reference. This site has existed for years, with Rowling's blessing, but only under the terms that it was a not-for-profit fan site. The site's content is mostly created by other fans, who most likely did not understand that the site owner intended to take their posts and turn a profit on it.
Wikipedia is a non-profit educational site and has a much firmly argument under fair use that the owner of a fan site now trying to turn a profit.
Julie: The fact that a lot of people will buy both books (in fact, I suspect the vast majority of fans who would buy one would buy the other) undercuts the argument that the printed Lexicon actually harms J.K. Rowling. When it gets to the point where authors are trying to throw the hammer down on work that doesn't harm their market just because they're upset that somebody else, somewhere, is also making a profit on something related to their work, it's a sad day.
The point about the fans who unknowingly contributed to a for-profit venture is an interesting one, but not really related to this suit. If the printed Lexicon is allowed to be published, the fans would get their chance to sue for a share of the profits (unless the site's terms of use include a clause requiring them to surrender rights to anything posted).
But Kevin, that is the whole point of copyright protection. It is an authors RIGHT to profit off of their own work, and to prevent others from trying to. An author has just as much right to prevent others from profiting from their work as you and I have to prevent someone from driving our car without permission. Just because my car sits in the parking lot 8 hours a day while I am at work doesn't mean someone else can use it! And just because I give my friend permission to use the car to pick up her kid from school, doesn't me she can then also use to car to deliver pizzas all day to make money!