Potter Lexicon Ruled Not a Fair Use
I was only marginally aware of this work until my copyright panel at Balticon 42. The back story as I have it is that a fan composed an unofficial encyclopedia about the world of Rowling’s Harry Potter books as a labor of love. Apparently this work was so impressive it was picked up by a publisher which unfortunately also caused it to register on J.K. Rowling’s radar.
Just about everyone with whom I have discussed this case felt this was perhaps tenable as a fair use given that it does not substitute for the novels in any way and is pretty heavily transformative, producing a reference work that complements and helps promote the original works.
Apparently, Judge Patterson in the US District Court of Manhattan disagrees ruling in the case pressed by Rowling and her representatives that the lexicon is not in fact a fair use.
I do hope RDR Books, the publisher of the lexicon, appeals. If Patterson’s ruling is overturned on appeal in a Federal circuit court, it would set a pretty strong precedent for this kind of work. And who knows, it may even stall the ridiculous copyright shenanigans that Rowling has pulled with increasing frequency of late. In some small way, then, this ruling in a state court may have been a blessing as it is likely to encourage just such an appeal.
Comments
Comment from Kris Johnson
Time September 8, 2008 at 5:17 pm
What’s truly bizarre about this is that the website upon which the book was to be based has been on Rowling’s radar for quite some time: she admitted to using it as a reference when writing the last installment(s) of her Harry Potter series. It was only after they announced their intention to publish that Rowling objected.
I’m confused by Patterson’s ruling, as I have owned at least one “unofficial” guide to the Potterverse in the past, so this type of work is far from unprecedented.
Comment from cmdln
Time September 8, 2008 at 5:21 pm
Undoubtedly, Nobilis. And the more we call attention to her behavior and how it punishes fans, the faster that will happen. Especially as there are more examples of the opposite behavior rewarding fans, like all of the podcast authors who give away their works and how that enriches both them and their audience.
Comment from cmdln
Time September 8, 2008 at 5:23 pm
The difference, KJ, is whether Rowling as the rights holder felt strongly enough to press an infringement suit. It may be that because of her experience using this particular work, that it had much more value than any of the other similar “unofficial” references you mention.
Sadly, the market opportunity is only one of the four principles the judge should consider in a fair use defense. And Rowling can undoubtedly muddy the water by claiming she was planning her own reference work all along.
Comment from Nobilis
Time September 8, 2008 at 5:12 pm
The more she gnaws on the hand that feeds her, the less it will feed her.