JK Rowling sues to stop Potter reference book from being published

JK Rowling and Warner Brothers have joined in a copyright suit against the publishers of The Harry Potter Lexicon, a highly praised Harry Potterverse reference website-cum-book. Rowling -- who previously gave high praise to the site -- has gone on record saying that it's not right for people to make money by publishing reference books about writers' work. As Salon's Machinst blog says:

In a statement, Rowling added: "It is not reasonable, or legal, for anybody, fan or otherwise, to take an author's hard work, re-organize their characters and plots, and sell them for their own commercial gain. However much an individual claims to love somebody else's work, it does not become theirs to sell."

Has J.K. Rowling ever been to a library? Seriously, I truly wonder. Because if she had, she might have seen many examples of exactly the sort of books she describes as "not reasonable." For instance, a list of the allusions in "Ulysses"; or a complete guide to all of the characters in William Faulkner's fiction; or a compilation and detailed analysis of Bob Dylan's lyrics; or a book containing the complete chronology of the events in David Foster Wallace's "Infinite Jest."

Hey, J.K. -- can I call you J.K.? -- these are known as "reference books," and, like the HPL, they are not mere "reorganizations" of characters and plots.

They are works of scholarship -- works derived from detailed study of an artist's creations, and intended to aid in research and appreciation of those creations. You might take a look at the fair use provisions of U.S. copyright law, which allow people to copy work for "purposes such as criticism, comment, news reporting, teaching ... scholarship, or research."

Link (Thanks, Rick!)

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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“In a statement, Rowling added: “It is not reasonable, or legal, for anybody, fan or otherwise, to take an author’s hard work, re-organize their characters and plots, and sell them for their own commercial gain. However much an individual claims to love somebody else’s work, it does not become theirs to sell.”"

By Rowling’s reasoning even book reviews of Harry Potter are illegal because they “take an author’s hard work, re-organize their characters and plots, and sell them for their own commercial gain.”

She’s already rich, nearly beyond belief, from HP. Now she seems to be growing into an Oprah-like control freak. Clearly her position is untenable and I find the reflexive defense and deference of Rowling’s copyright maximalist position troubling.

Rowling wrote books. We are allowed to talk about them and even publish detailed analysis about them. It is not the same as stealing from her any more than writing a book about Rowling herself would be–though she probably has something to say about that, too…
Harold the Hare

Think you need to do a bit more research on this one, Cory. JKR has been quite generous with what she allows other people to publish on the back of Harry Potter, but there’s a reason this one’s got the Lawyers out in force, and the reason is that the bloke attempting to publish the book is a slightly over-obsessed fan who has got it into his head that he’s as much the owner of Harry Potter as JKR is, and while you could argue till next Tuesday about whether his website-to-book is scholarly or reference-y, there no getting away from the fact that it *is* a whole lot of the orginal text of JKR’s books.

To add to the fun, his proposed publishers make second-hand car salesmen look like respectable pillars of the business community.

There’s quite a lot of comment about this on the Net – I suggest you read up on it. The general unhysterical opionions of those who know something about the laws involved is that this bloke and his publishers haven’t got a leg to stand on, which is just as well since if they *did* win, the ramifications for all authors and fans alike would be alarming to say the least.
zefyr

Cory, if its just Harry Potter Facts –Organized… how does is qualify as Fair Use? Which provision do you think would apply? And, doesn’t the fact that this is a commercial endeavor have bearing? Comments appreciated.
Teresa Nielsen Hayden / Moderator

Tacky publishers and mildly unbalanced authors have the sames legal rights as anyone else.

Bzishi (9), profit has nothing to do with it.

Silva (13), Rowling may have been accused of basing her books on other works, but her accusers’ case was rejected by the court for not only being worthless, but fraudulent.

Dave X (18), what you’re saying is that you, personally, don’t enjoy that sort of book.

Sebflyte (21), she holds the copyright on the fictional use of her settings and characters, and on the words used to tell the story. She doesn’t control nonfiction that’s about her work.

Emli638 (26):

A small part of the Lexicon counts as original scholarly work. The creation of timelines, for example, required significant textual study.
For the most part, however, the information in the Lexicon website is little more than a quick copy-paste of what was already in the book. If Rowling wrote “The spell made fluffy bunnies appear,” the Lexicon wrote Spell – makes fluffy bunnies appear.

If that’s scholarship, I wish I hadn’t wasted a year on literary analysis to graduate college.

Speaking as a former literary criticism reference series editor: go ahead, tell me academia never produces hackwork indices, lexicons, bibliographies, or critical editions.

Narual (28): No, I don’t. It’s a completely normal reaction to enjoying and engaging with the books.

Geno (33), go ahead and read them. If JKR continues to be unreasonable on this subject, buy second-hand copies or borrow them from your library.
ill lich

Jebus! Talk about stifling honest intellectual research! If there weren’t books describing all the hidden meanings of the works of William Blake, people probably wouldn’t bother trying to read a lot of his more esoteric stuff. Besides, “making money” off her writings is a ridiculous way of looking at it, newspapers and TV shows “make money” by reporting on her books and interviewing her, but they also PROMOTE her books, JUST like the Lexicon does.
Harold the Hare

What part of “…nearly 12 pages of direct quotation on the subject of Severus Snape alone.” isn’t covered by “… the way the author has expressed herself”?

I’m sure both JKR and her lawyers are quite well aware of the law too. Probably rather more so than most of us here. Therefore you have two conclusions you can reach here:

JKR is, for some irrational and unexplored reason, targetting this one individual, and no others, in the full knowledge that properly produced reference works are convered by the “fair use” clause

or

JKR is exercising her legal right to stop someone plagiarising her work.

Either JKR is bonkers and is throwing money at a lawsuit which she knows she has no chance of winning, or she’s doing exactly what any author in her position would do, using the laws on copyright exactly as they were intended to be used.

Which do you think is the most likely?

PS If JKR loses, then I am first in line to produce a “Lexicon” of Cory Doctorow’s books along similar lines. The cut and paste function of computers is so helpful for authors like myself. I’m sure he won’t mind a bit!
bripisko

OMFG, there’s a chronology to Infinite Jest? I must get me to a library!
pandaterror

I read in another article which mentioned that she was planning on writing her own reference. I’m a huge Potter fan so I may be a bit biased here, but I somewhat agree with her. Sharing is caring but having other people profit from your work just feels iffy.
NoneSuch

I would think it would be like writing the next Harry Potter book. You can’t. It’s not your license. If she wants to authorize it, that’s fine, but I’m not sure I see the basis to let someone else steal her work for profit.

Fair use means you can quote a book as part of your book. Claiming fair use in order to create a book containing almost nothing in it except J.K. Rowling’s work and then publishing it as one’s own seems like a mighty stretch.

Same reason I can’t create “The Guide to Metallica” CD that has all of my favorite Metallica snippets and then sell it.
AJHall

We don’t know what’s going to be in the printed version of the Lexicon at present, but RDR books, the Defendant, have repeatedly stated that its contents will be taken “verbatim” from the website.

Now, I’m not entirely sure “verbatim” as used by RDR books means what they think it does, but one of the issues which has been widely discussed in fandom circles since the news broke is that what is on the website is a compilation of the work of a lot of fans contributed over the years on the basis that they were contributing to a fan-run, not-for-profit site.

There is a real issue at present about how much of that independent fan-created work will be in the final book version; SVA has stated, for example, that the “essays” section (to which I am a contributor; not asked for permission to reprint in a hard-copy, for profit format or notified that reprinting was planned) will not be included in the published book. RDR Books, however, have made a number of statements to the effect that they will be (“It is an original book with a vast array of independently written scholarly reference materials”: RDR website, though contents of said website subject to change without notice).

One of the questions about “fair use” in this case, therefore, is whether it can be fair use if the “transformative work” in relation to which the fair dealing is claimed in fact constitutes the verbatim copying of a lot of other people’s work without their knowledge or consent.

Secondly, I’m not sure how far people unfamiliar with the Lexicon in its on-line form are aware of the sheer volume of direct quotation from the HP Books themselves; exhibited to some of the papers filed in the suit by JKR lawyers are examples drawn from the site (again, no evidence except that pesky word “verbatim” as to whether they will get into the book or not) which, among other things, demonstrate nearly 12 pages of direct quotation on the subject of Severus Snape alone.

But finally, and most worryingly from my perspective, the line of defence being taken by RDR in their published statements is one based on abandonment rather than fair use; they are essentially stating that JKR should have sued the Lexicon at the outset, when it was in its on-line, not for profit form (incidentally, the complaint expressly excludes any action against the on-line, not for profit Lexicon) and that by tolerating it then she and WB have lost the right to take action now. The chilling effects of that line of argument, if successful, on future fan created works and the relationship with TPTB hardly bears thinking of.
Man On Pink Corner

‘You might take a look at the fair use provisions of U.S. copyright law, which allow people to copy work for “purposes such as criticism, comment, news reporting, teaching … scholarship, or research.”‘

Read the excerpt Cory quoted above. Five out of six key indications of fair use make a pretty strong case that an unauthorized Harry Potter reference would be legally OK.

Don’t want your work to influence other people and provide personal and professional opportunities for them? Don’t publish it.
xcolour

This has been brewing in the online potter community for the last week or so, and a disappointingly large percentage of the fan community seems to be taking the side of Rowling and company without giving the matter much thought.

Before jumping to conclusions, take a look at the lexicon:

http://www.hp-lexicon.org/

It is not, as so many in the community and across the web have be calling it, a simple reorganization of the text of the books. It is a serious scholarly work that represents significant individual effort on the part of the contributors. It is exactly the kind of “useful art” that copyright law is intended to encourage and fair use is designed protect.

Sadly, what could have been a high-profile test case for fair use has been horribly bungled by the unprofessional and absurd statements of the lexicon’s would-be publishers, complaining about fascist laws and justifying their actions as a way to bring the lexicon to children of the third-world. The lexicon has already lost the battle for public opinion, which is unfortunate.

As so often happens, the question that is asked over and over is one of legality. Is publishing this derivative work legal? While it’s a somewhat gray area legally, given the current state of copyright enforcement, that particular discussion is a rather pointless exercise. The question that we should really be asking, and the one that is too often forgotten, is not whether the act is legal, but if it should be legal.
jimh

It’s a non-fiction work based on her fiction, and will be seen as such in court I believe. Whether it examines themes in the the books or merely acts as an outline of the characters and events, or both, such work is protected and need not be authorized by the author. It would need to state the fact that it is unauthorized, I believe.

While I cannot make a CD of Metallica’s music for sale, I could write a non-fiction book on Metallica that is unauthorized by the band. In it I could publish lyrics to their songs, because these would be important to the story. The band could (and probably would given their litigious reputation) attempt to sue me and block it’s publication, but I would be within the law. That is, unless there were issues of libel.
Peter Gasston

She should stop being so precious. Some authors are more than happy to have their work acknowledged with reference companions; see (Neil Gaiman’s) Sandman Companion, for example, which features extensive interviews with the author himself.
PaulT

It’s not freeloading off Rowling’s work. The money made from selling the book would be a reward for the investment that the author put into making a reference to guide people through Rowling’s work, making the originals more interesting.

Sadly, these RIAA-style tactics will only make people less interested in her work. Not that she cares with all the money she’s already made, I suppose.
bzishi

Man On Pink Corner:

You noted the purposes that something may be used but you forgot the four factors that determine if something is fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

If this compendium was made for pure literary research then it would probably be allowed. But since it is for profit it is not likely a fair use defense will work. I’m sure the other factors will be argued as well (especially #4).
Simon Greenwood

The book world is full of this sort of thing: I’m thinking primarily of the acres of unofficial autobiographies and photobooks of current flavours of the month that are currently clogging up the gift suggestion shelves in your nearest Waterstones or Borders. On the other hand, and more relevantly, look at how Terry Pratchett manages his IP. He has kept a firm grip on the Discworld, but has authorised publications such as play adaptations, the ‘Science of the Discworld’ series and indeed the official Discworld reference, which was written in association with Stephen Briggs. It probably helps that he has a tendency to get involved in forums and newsgroups about him and his creations, which I suspect JKR doesn’t. I would say that any author has the right to protect their property but these days, the failure to be aware of what is being done to their property at an early stage is inexcusable.
Ryan Waddell

Man, since when has a corporation in this day and age given a single flying frack about fair use??
Darren Barefoot

I was immediately reminded of the excellent-looking concordances by Robin Furth that accompany the Dark Tower books. Stephen King, nearly as rich and apparently wiser than Ms. Rowling, has given his stamp of approval to the books. Heck, he wrote the introduction to them.
Silva

Given Ms. Rowling was accused of basing Harry Potter on other books, I find this somewhat amusing.

I really don’t see why the fuss. If she’s planning on writing her own reference guide, it is automatically granted hers would get a lot more publicity and interest from regular fans of the franchise. Unless, of course, she’s afraid fans would do a much better job.
GaryG

Pandaterror said: “I read in another article which mentioned that she was planning on writing her own reference.”

If this is true then this wouldn’t simply be a case of suppressing the competition, would it JK?
Silva

Ack, deleted the last paragraph…

The franchise has been exploited commercially in every way possible, many times with official products of questionable quality, so unless there are gross mistakes, fanfic or wild speculation in the reference, this is plain money grabbing, sorry.
druidbros

I guess she has never heard of Cliff Notes.
vendorx

Normally Iâ€™m a foaming front liner on the war against the copyright overlords. However, this is pretty obviously one instance in which a person (Rowling) is being demonized for perfectly reasonable behavior.

I checked out the website. The lexicon is not a literary criticism, and calling it such is blatant misrepresentation. Yes, there is an â€˜essayâ€™ section, but the lexicon itself is what most science fiction/fantasy lexicons are, itâ€™s a summary of the creative work. Thatâ€™s it. Itâ€™s not adding new creative vision, itâ€™s simply collecting and summarizing the creative vision of someone else.

The arguments presented as to why Rowling is wrong.

#1 : â€œShe hasnâ€™t been to a library and seen lexicons.â€ Has anyone actually bothered to investigate how many of those were done with the creatorâ€™s approval? There are very few â€˜unauthorizedâ€™ lexicons, and there are very few grounds for comparing a lexicon to a â€˜literary criticismâ€™ or a â€˜biographyâ€™. So this argument against Rowlingâ€™s behavior is really pretty cheap.

#2 : â€œA lot of effort has been put into this lexicon.â€ Hard work doesnâ€™t automatically equal the right to be paid. I recently put a lot of hard work into stealing images of John Shag paintings off of the internet so I could enjoy them on my Second Life land. This doesnâ€™t give me some right to sell them. Alas, I saw some scumbag doing exactly that. Selling someone elseâ€™s creation for profit is only that, selling someone elseâ€™s creation for profit. That this lexicon is a summary of all the ideas Rowling came up with is no different than arguing that my images are merely pixels, not paint. Itâ€™s taking someone elseâ€™s work, and adding nothing substantial to it.

#:3: (in The Machinistâ€™s extended response) â€œGoogle is just like this lexicon and we donâ€™t care that it makes profit without permission.â€ I had never read the Machinist before, and this article certainly isnâ€™t going to win me over. I like my critical writers to be able to paint a half decent analogy. Here is why Google is in no way, shape or form like this lexicon. Unlike the Lexicon, Google does not actually reprint my works, or even summarize them. It merely links to them. So there can be no claim of intellectual theft, because Google isnâ€™t using any of my creative ideas. At all. The claim that they are is not merely wrong, itâ€™s actually amazingly stupid. The Machinist also claims that we would never hold Google accountable for such behavior, and yet Google has been held accountable for it in the case of things like Google image, or their movies. So The Machinist is wrong again, and once again his error takes about a half secondâ€™s thought to reveal. But finally, and most importantly, you have the right to be taken off of Googleâ€™s search engine. If anyone here requested that Google not search their domains, they can do so and itâ€™s respected. So The Machinist manages to be wrong in obvious, goofy ways three times in one argument, and thatâ€™s a hat trick.

#4: â€œThis is exactly whatâ€™s stifling creative contribution.â€ This is the most ludicrous argument of this particular instance since the person in question had already made the creative content, and so long as he was willing to make it for free, no one seemed to have a problem. So blaming Rowling for â€˜stifling the poor ladâ€™ is idiotic, since heâ€™d already made his contribution. Things didnâ€™t go sour until he decided he had somehow earned the right to be paid for his hard work (see #2 above.)

I donâ€™t want to come off as pro-copyright here. I love boing boing partially because I love the fight against copyright, corporate ownership of art and data, etc. I personally think all information wants to be free, and I daydream of a world of endless art and creativity, none of it hoarded for profiteering. But too often, reasonable fronts against poor public behavior fall because the people involved become too polarized and reactionary, snapping and foaming at any hint of the enemy (see political correctness,) and I really think thatâ€™s what Iâ€™m seeing here.

If Rowlings was trying to shut down the free lexicon website, Iâ€™d be at her throat, too. But thatâ€™s not the case here. Some geek is trying to sidestep the creator of a fictional world and earn money off of her creation simply for summarizing it for people. It doesnâ€™t work that way. If he really feels he deserves money, then he should get Rowlingâ€™s approval, and if he canâ€™t then too freaking bad. Get your own goddamned idea. And those of us interested in â€˜fixingâ€™ copyright shouldnâ€™t be so overeager to fight the good fight that we attack legitimate defenses of intellectual property.
remmelt

> 4. the effect of the use upon the potential market for or value of the copyrighted work.

Would I buy the lexicon if I hadn’t already read all the books? I don’t think so, but I might.
-> no lost sales

Would I buy any missing books if I received this lexicon as a gift? One could easily assume so.
-> no lost sales, possible rise in sales

Would I stop buying the original books once I read the lexicon, provided I did not already own/had not already read all of them? Well, I don’t think so.
->no lost sales

Either way, more exposure = more sales = more moneys = more good. Even bad news is good news, etc. This is good news, so what is her problem? Ah, she’s writing her own authorised lexicon? How very interesting.
-> lost sales of OWN lexicon, but that’s not what this lexicon covers. It uses portions of the original book, not of JKR’s lexicon. So, provided there is significant own input from the lexicon’s author(s), this is fair use.

I do think we can all agree that greed doesn’t become her.
emli638

Theresa – I commented again clarifying my point re: indices. And I certainly hope you aren’t arguing that “hackwork” indices should be encouraged, which was rather the sarcastic point I was making originally.
Dave X

Sometimes, I wish whoever came up with the first elf/dwarf/dragon/magic fantasy novel would just sue the rest for such blatant plagiarism; and free up that large, boring section of all too many bookstores.
emli638

The article linked to here is a highly biased account of what is actually going on.

This story has been followed in the Harry Potter fandom (home to all things insane) since November 1, at the least. The creator of the online version of the Lexicon hooked up with a less than scrupulous publisher who, when contacted by WB’s lawyers, refused to give a copy of the book and told them to print out the website. As the website cribs heavily from the books, that didn’t help the case that it was legal. Recently, the publisher has been whining that WB has jumped the gun by filing a suit before getting a copy of the book, contradicting the original statements.

Most frustratingly, the publisher has been saying that the postponement of the trial was due to their own proposal. In fact, the publisher requested a delay but was denied. The current postponement was granted for the Plaintiff, in this case WB. The legal documents can be found at http://news.justia.com/cases/20070525245370/

There’s a lot of disinformation about this case on the web right now, most of it coming directly from the publisher’s many rants disguised as press releases on his own web page.
sebFlyte

These are not Cliffs Notes; this is not scholarship. It is just

She allowed it to exist online with a subsistence model, and now that they people behind it want to make money off it, she’s clamping down, and rightly so.

I’m not a great believer in the general concept of intellectual property, but in this instance I think it applies. The characters are hers, the stories are hers; if you want to make money using them, then there should be licensing fees paid or some other arrangement made.
Anonymous

JIMH,

You state you could reproduce Metallica’s lyrics because it would be important to the story.

If you reprinted complete song lyrics, you would most definitely be sued. You can’t reproduce works in their entirety without permission. It’s legal quote excerpts for criticism, sure, but not whole songs.
Silva

Teresa: Yes, I know, or else I would have pushed a little further than a brief note. But there are many accusations that her work isn’t all that “original” to allow her to be so anal about a simple reference book.

On another subject, if she’s writing a reference book, rather than focus on the *written* elements of the series and present them, I’m pretty sure there will be a lot more “I just decided that Dumbledore is gay” moments. Greedo shot first style.
chapinero

JK is “vieja guardia” i mean old fashion way, she doesnt want anybody (except Warner Brothers) to contribute to the Harry Potter thing. Creative Commons Licences solve that problem and she is not playing that game, period.
Hugh

DaveX: “Sounds like she’s been taking notes from Le Guin…”

Literally. Try reading LeGuin’s Earthsea Trilogy and then switch real quick to the Harry Potter books. See if there isn’t a certain familiarity of theme.

I would say the Harry Potter books are a particularly good example of why it is normal and necessary and good for authors to “take an author’s hard work, re-organize their characters and plots, and sell them for their own commercial gain”. I think it’s commonly called “writing”.
Nelson.C

This is not scholarship

What makes it not scholarship, the fact that the publisher expects to make some money off it? So if a “scholarly” work unexpectedly became a best-seller, it wouldn’t be scholarly anymore?

The intellectual property developers are trying to make as much money for themselves as they can. That the rights they assert would promote an ivory-tower culture where knowledge belongs to a few while the rest of us are denied any outlet for creativity at all doesn’t matter to them, they’re just grabbing any rationale for making money. But just because they assert a right doesn’t make them right.

Artists infect our brains with their ideas; the measure of how successful they are is how many other ideas we spin off from them. If artists allow their publishers and lawyers to choke any intellectual spin-off from their work it will ultimately strangle our culture. That this book might make money is a reason for publishing it, not against. That’s how it works in our society. We do things for money, just as JKR herself did when she gathered up a load of popular memes and repackaged them as Harry Potter.
Miles

The main difference between all of the examples that Cory listed and HP is that HP is first and foremost a commercial enterprise whose primary purpose is to make the most money possible. Rowling isn’t Joyce, Faulkner, Dylan or Wallace: she’s the literary equivalent of Spongebob Squarepants. You think the copyright holders of other successful brands are going to sit idly by while someone else capitalizes on their brand image?
g.park

Rowling’s going to need a bigger team of lawyers.

There’s at least 50 different nonfiction Potter reference books available on Amazon at this very moment. Clearly, there’s some intellectual property that needs defending! Rally the troops! We have to stand up for artists!

Or could it be that WB/JKR is preparing a reference book, and doesn’t want the competition?
Teresa Nielsen Hayden / Moderator

Emli638 (50): Oops, sarcasm. Sorry about that.

I certainly don’t think hackwork indices should be encouraged, though I’ve backed down from my previously held opinions involving stocks and dunking stools.

Silva (51), it wasn’t the ingredients she used. God knows, those are standard. What she has is a remarkable ability to write a sentence that makes you want to read the next sentence, and she never explains anything before you want to know about it. Good exposition is an underrated talent.

Authors ought not write reference books about their own work.
sirdook

Look everyone knows how writing works. A writer closes herself off from the world, forgets everything she’s ever read, and write something completely new and original from scratch, drawing in no way on previous intellectual property or on the larger culture influenced by such creations.

Anyone who writes like that deserves to have sole and exclusive use of their original creations. I think it’s criminal that news programs are able to sell advertising by talking about the existence of such characters!

I mean look at Disney – they gave the world such original characters as Snow White, Cinderella, and Pocahontas. Or look at Shakespeare and his original creations – Julius Caesar, Hamlet, and King Richard.
emli638

A small part of the Lexicon counts as original scholarly work. The creation of timelines, for example, required significant textual study.

For the most part, however, the information in the Lexicon website is little more than a quick copy-paste of what was already in the book. If Rowling wrote “The spell made fluffy bunnies appear,” the Lexicon wrote Spell – makes fluffy bunnies appear.

If that’s scholarship, I wish I hadn’t wasted a year on literary analysis to graduate college.
Cory Doctorow

Several commenters in this thread have posted words to the effect of, “It can’t be fair use if you intend to make money,” or “It can’t be fair use if the author intends to make money” and neither of these are true. The four factors that make up fair use are weighed against one another, and the courts have historically swung in favor of people who make dictionaries, compendia, concordances, “unofficial guides,” and so forth. A use does *not* have to be noncommercial to be fair, nor does it have to keep from taking a penny out of the pocket of the creator.

#4 and the “Guide to Metallica” CD — in fact, that’s *just* the kind of thing you *can* make as fair use. If you use short clips from Metallica to illustrate critical or scholarly points made in a new work, you’re making a fair use.

Statements like “Fair use means you can quote a book as part of your book” are just wrong — or at least, extremely incomplete. Fair use means that there are a myriad of circumstances in which you can take other peoples’ copyrighted works without their permission and use them for a variety of creative, scholarly, educational, personal and critical purposes. For example, a Pop artist can take a corner of the Time magazine cover with Marilyn Monroe and blow it up to fill a whole canvas — that’s a work that consists of *nothing but* the copyrighted Time cover, transformed in a way that makes it fair use.

More convincingly perhaps: the Supreme Court found the VCR legal in 1984, despite the fact that it made complete, non-transformational copies of Hollywood movies, in direct competition to Hollywood’s licensed alternative technology, the Discovision.

Miles, in particular, it’s Just Not Legally True to assert that it’s only scholarship or analysis if you approach subjects that didn’t intend to get rich (likewise, it’s not true to assert that Faulkner, Joyce and Dylan weren’t commercial writers — these guys weren’t giving their stuff away in the street, they were writing bestsellers). Fair use is still fair, even when it treats with commercial subjects from pro wrestling to Disney theme parks.

Emli638: Scholarship needn’t be analytical. For example, indexing is a scholarly undertaking — think of all the PhDs given to writers who produce exhaustive bibliographies, like my friend Alan Weiss who produced the definitive bib of Canadian SF since the time of the voyageurs. Fair use doesn’t exclude concordances, indices, compendia, etc.
Narual

Does anyone else find the level of obsession with Harry Potter some people display just a trifle creepy?
Brian Carnell

“The main difference between all of the examples that Cory listed and HP is that HP is first and foremost a commercial enterprise whose primary purpose is to make the most money possible. Rowling isn’t Joyce, Faulkner, Dylan or Wallace: she’s the literary equivalent of Spongebob Squarepants. You think the copyright holders of other successful brands are going to sit idly by while someone else capitalizes on their brand image?”

Do you people ever visit bookstores? There are plenty of works like this and they are completely legal in principle. There are, for example, a dozen or so completely unauthorized guides to popular TV shows, such as Buffy/Angel shows that recycle a great deal of the details of the originals.

If I wanted to write an Unauthorized guide to Spongebob Squarepants, there’s not a lot that Nickelodeon could due to stop me. This is exactly the sort of work that is protected by fair use.
emli638

I certainly agree that there are valid scholarly indices and compendia – quite a few of the examples mentioned in the comments more than qualify as such. The issue is this specific case of the Lexicon website and book, which has been described in a few places as some sort of bastion of original research, textual analysis, and surprising discoveries.

Parts do fall into those categories – again, the timelines did take a significant amount of work to produce, and god help the saps who combed the books with an outdated calendar at their side. However, the little known about the proposed book indicates that the original character study essays may not be included. Large parts of the website are little more than a cursory repackaging of the original books.

I think the debate on what constitutes fair use, the concept of Creative Commons, and the merits of various aspects of academia to be fascinating. However, the Lexicon book is a poor case to use as a cornerstone of the argument, in the very least because the publisher keeps shooting himself in the legal foot, so to speak. The other HP companions that are out there make clear their unofficial status and do not crib largely from the original work. JKR and WB in general do not involve themselves often in the goings on of fandom in the online sphere.

The Lexicon site may be popular, but I do not feel it deserves the status it is now gaining as “champion of freedom of speech” thanks to RDR Books.
martinaa

…Because J.K. clearly didn’t make enough on the Harry Potter books alone; protect this poor starving writer who’s richer than the queen!

I don’t have my copy here, but is the Annotated Alice written by Carroll himself? I think not.
emli638

And as an aside: Wow, that was a whole lot of tl;dr I just churned out.
Geno Z Heinlein

Well, so much for reading the Harry Potter books. I’ve heard they were good, and was waiting for a nice trade paperback set to come out, maybe in a box of some sort.

I won’t give Rowling money if this is her attitude.
jimh

“Some geek is trying to sidestep the creator of a fictional world and earn money off of her creation simply for summarizing it for people. It doesnâ€™t work that way.”

Actually, I think that it does work that way.

As long as the summary does not purport to be a new work of fiction based on her creation, and is only a summary or guide to what happens in her books, it is essentially a work of non-fiction. A reader would be silly to confuse the experience of reading such a summary with the original book, but might be willing to pay for having the work of reading and understanding it done for them. The quality and/or accuracy of such unauthorized summaries is of course debatable, but I believe they are perfectly legal to produce as long as they don’t make claims to be “official”.
vendorx

I’ve explored U.S. copyright law a bit, and while the first caveat it employs is that it is not precise or well defined, it does state this particular notion fairly clearly.

“Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work. ”

Given that statement, I would be inclined to say that JIMH (and most everyone else) is right and I am wrong about the manner in which lexicons and encyclopedias relate to creative works. I still don’t feel Rowling is just being a greedy kook who has yet to come to her senses for not approving of this work for profit, but as near as I can tell it would fall under fair use.
Halloween Jack

I think that all of this discussion is pretty pointless unless/until we see what the Lexicon will actually turn out to be in printed form. As many people have said, commentaries, concordances, etc. are all fair use; a literal reprinting of all seven books with annotations, on the other hand, wouldn’t be. I don’t think that the website goes quite that far, but it does quote quite a lot.
Cory Doctorow

The business of “the publisher shot themselves in the foot” is pretty dubious. What exactly have they done wrong? Failed to provide Warner Brothers with a copy of their book in advance? Well, for starters, Warner is a direct competitor of theirs — why should the publisher feel a legal obligation to send copies to the competition? Especially since Warners has a reputation for being litigious (and particularly so for the HP franchise).

Warners can get legal redress by buying the book once it hits the stands and reading it and bringing suit if they feel they must. Prior restraint on speech because something might violate copyright isn’t a very good way to run a democracy.

As to the content of the book — none of us, including Warners, know what this will consist of. For all we know, the publisher has gone through and edited the book to paraphrase the longer quotations, better organize and index the material, etc.

But the website, even as it stands, is an empirically useful and comprehensive guide — so comprehensive, useful and salutory, in fact, that JK Rowling has singled it out for praise in the past and given it an award.

The point here is that Warners and Rowling have concluded, a priori, that this book will infringe copyright, without having seen it, and have demanded access to the edited text before publication in order to confirm their fears. They are, by their own admission, working on a competing volume. If I were the publisher, I wouldn’t supply them with a pre-publication copy, either.

Dear Ford, this is General Motors. We’re afraid that your 2009 models will infringe our patents — after all, we’ve seen some of the early sketches that Time published last year. Can you please send us everything you have planned for 2009 so we can be sure you’re not ripping us off? No? What? That must be an admission of guilt! You skunks!
vendorx

Harold, if you’ll read back, I was responding specifically to something I had posted earlier which had been corrected. I had a more general comment on the nature of copyright itself, and how it worked in relationship to collections of facts like lexicons or encyclopedias.

My take on what was needed to produce such a work, in general, was wrong, as was pointed out. Looking into copyright law confirmed that I was mistaken, as the quote above demonstrates. That particular aspect of the discussion didn’t relate specifically to Rowling’s case, but only to copyright and lexicons in general.
Silva

Teresa: That’s part of my point, as far as I know, reference books feature only brief excerpts of the original work. Most likely, it will deal on facts, so her greatest asset is well covered.

And yes, all people I know that read HP books do it because of the captivating writing – I tip her my non-existing but symbolic hat for that.
trai_dep

Aww, geez. A great lady, an inspired author and a very well-grounded person just made a horrible oops.

I hope that she pulls back from everything, takes a deep breath, and realizes that reference materials are, in fact, fair game.

And, from a business standpoint, anything that adds to the Potterology universe increases the value of her series – gives it legs.

Finally, even if she’s coming out with her own reference tome (and I hope that it’s HUGELY expansive), there’s enough room in the market for both. In fact they’ll probably help each others’ sales. Even if they didn’t, hers would crush a third party’s book, if one was to look at it that way.

LOVE Jo Rowling, I’m sure she’ll come to her senses.
agnot

So, if Rowling is successful, this likely means less academic study of her regurgitations, uhm, I mean work.

Excuse me while I weep in sorrow.
Fade Manley

I don’t see why Rowling having made money off her books makes her somehow less worthy of copyright protection than someone poor; I keep seeing people insisting she’s wrong just because she’s rich, as if acquiring money means you’re no longer allowed to have rights to your own work.

As noted above, the publishers of the Lexicon have repeatedly refused to let WB even look at the manuscript, while claiming that someone could just “hit print” at the website. That website? Is full of direct quotes from the books, in long pages, with minimal criticism. It’s also full of essays written by other people who haven’t been contacted by the publishers for permission to include their writing in this book. Many people who contributed to the site have specifically stated that they’ve not been able to get any response about whether or not their writing was in the book, and they certainly didn’t give permission for their own contributions to a handly online reference guide to be published for someone else’s profit.

Rowling has said repeatedly that she’s fine with collections of scholarly articles about her books, as shown by the large number of such books already on the market. What she objects to is a half-assed regurgitation of her own words being sold by someone else. And if the publisher won’t provide WB with the actual book, it’s going to be awfully hard for anyone over there to even find out if it’s all scholarly articles with reasonable numbers of relevant quotes, or just copy-pasted or minorly reworded chunks of text from the books.
emli638

A tiny bit of online legwork would illustrate the ways in which RDR Books has not done itself many favours, but to be brief: 90% of their actions until this point have been taken without any legal counsel. A brief reading of the legal documents I linked earlier indicate that RDR has been less than forthcoming despite legal requests for documentation, has misrepresented facts (most recently, arguing that RDR’s proposal of a delay was accepted, when RDR’s motion was denied), and has not complied with the judge’s order to cease promoting the book.
Church

The value of a lexicon is in its organization. That is something that JKR admits herself:

“This is such a great site that I have been known to sneak into an Internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing)…”

There is a disturbing trend to equate ‘fair use’ with ‘not making any money.’ That’s not the point, people.
Simon Bradshaw

Cory,

My understanding of the issue here (and I may be mistaken) is that WB are to a large extent aware of the contents of the proposed book, inasfar as they have been told that it reprints the online lexicon. Now, it seems that WB were content to tolerate the lexicon as a free resource (indeed, it seems Rowling endorsed it) but appear to have reservations about seeing it as a for-profit book; I suspect they will claim that it takes it across their boundary of fair use. (It will of course be for the court to decide if it agrees.)

To take your analogy and strain it a bit, it is as if GM had been given notice that someone who’d built a replica of one of their cars to test its aerodynamics (which would not be an infringement of design right under EU law as it would be for private research) was now planning on putting it into production. It’s very common for parties who have credible belief that a tort is going to be committed against them to ask for preliminary relief, and it is always open to the court to refuse it if it looks like said belief is unreasonable. Here, the court clearly thought that WB has an arguable case.
jimh

Even if the publisher isn’t being cooperative, or even very bright, I still believe it is fair use.

The argument that something like this is of poor quality does not make it illegal. There are many very poor “unauthorized guides” out there, and it is the responsibility of the consumer to decide. This is the very reason that one would expect Rowling’s own guide to have a tremendous market advantage.

Such is the world- once something is out there, it becomes a subject that may be written about, quoted, and offered for sale.
squib

I don’t think J.K is going far enough. What about when kids have Harry Potter birthday parties and dress as her characters? They should have to pay to do that. She should sue the parents
Wendy_Clark

I really hope this post is updated, because I find myself confused now about how fair use works.

Cory, I take you as my copyright authority and enjoy fighting the good fight, but when I first heard about the Lexicon debacle, I thought we finally had a clear-cut case of the one time the giant was in the right.

One problem, I think, is that we don’t know how the final Lexicon/encyclopedia/website-print-out will appear. RDR has made conflicting statements about whether or not the clearly appropriate critical essays will appear in the book. At the same time, the authors of those appropriate essays deny being contacted about it, which raises its own issues. Assuming that the critical essays don’t appear, we are left with WB’s images, long passages of JKR’s text, incides, and summaries. Once again, some of that material would seem to clearly belong in an encyclopedia or other scholarly work, authorized or not. Others of it seem troubling.

Since we can’t, at this point, know the content of the actual book, let’s just look at the theory: How much rearranging of the original author’s copyrighted text and adding of connectors/commas is necessary to constitute a new work?

Other readers have pointed to Cliffs Notes as acceptable publications, yet those seem to fall more on the “critical essays” side (which may not be included in RDR’s book) rather than on the “rearrangement” side.

For example, could I actually print out the boing boing archives, add a couple commas, bind it up, and sell it on Amazon for my own personal profit? To me, this seems clearly wrong. You guys and Xeni have reported the news, added your own jokes and references, and put your educated spins on events. I would only somehow be collating it, adding a brief introduction (maybe) and calling it “The Unauthorized BoingBoing Archive Book.” And then too bad for you, I’m NOT going to make it Creative Commons, just for a final irony.

Would I be able to do that according to fair use? Since neither of us have seen the Lexicon’s finished book, we can only speculate on its contents. I think many HP fans, myself included, imagine it as my unauthorized boing boing book, and have reacted accordingly.

If my boing boing book is fair use, and I attempted to make scads of money off it, I think boing boing readers are so vigilant that I wouldn’t survive the church of public opinion. In the same way, SVA (contentious “author” of the Lexicon) has been flamed in the HP world.

Unfortunately, I feel he’ll do very well with the general public. I notice that you didn’t mention JKR has said she plans to give the money from her future encyclopedia to charity, or that she’d fielded a question from SVA at a conference earlier and told him she preferred not to work with him on the construction of her own encyclopedia. (Although perhaps these are heresies; I am only peripherally aware of the HP fandoms and important events). I’m rather afraid the general public will stop at “JKR, the woman with more money than God, is suing some poor guy for writing a perfectly legitimate book that happens to mention Harry Potter.” Perhaps it is, in fact, the case, and if I’d only read your current post, it would certainly be my impression of the situation also. Since I heard about it earlier from an HP otaku, and I love a bit of a scandal, I clicked around and read RDR’s press releases about fascism and The Leaky Cauldron’s “I work at RDR and itz a good plaice” sock-puppet comments. Most of the public probably won’t pursue it like I did, and will probably see it the way presented in your post, for good or ill.

I really am curious about my fair use “unauthorized boing boing archive” though–and not because I want to undertake it, but because it challenges my common sense view, which can only be a good thing.
Anonymous

As someone mentioned above, this has been brewing online for quite some time now. And, perhaps disturbingly, what does not come up often enough in the discussion is that the publishers of the Lexicon have no intention of rewarding the multiple fans who contributed to the Lexicon, only the owner of the site. Rowling may be filing her lawsuit, but what about the possible IP rights of the contributors?
jphilby

“Try reading LeGuin’s Earthsea Trilogy and then switch real quick to the Harry Potter books. See if there isn’t a certain familiarity of theme.”

Immaterial and irrelevant. C’mon. I read Earthsea twice. When I saw the Potter stories (on film), I never once had the “hey that’s too familiar” reaction.

How many stories are there to be told? How many times has each been retold in a different way? You can *always* point to a predecessor. “Why, how *dare* Rimsky-Korsakov write Scheherazade!”

Before books people travelled from city to city reciting stories, adding their own interpretations and embroderies as time went by. They became famous in their own right. ALL art is dependent on the past.