Why JK Rowling will lose her suit against The Harry Potter Lexicon

Law prof Tim Wu has written a great article on JK Rowling's lawsuit against the fans who are publishing a commercial edition of the Harry Potter Lexicon website, in which he explains, in his customary clear and engaging fashion, exactly why the law is not on Rowling's side here.
Unlike a Potter film or computer game, the authors of the Lexicon encyclopedia are not simply moving Potter to another medium. Their purpose, rather, is providing a reference guide with description and discussion, rather like a very long and detailed book review. Such guides have been around forever–centuries if you count the Bible, and more recently for complex works like the writings of Jorge Borges or The Lord of the Rings. As long as a guide does not copy the original work verbatim, it falls outside the category of "adaptation." And that's why it is largely unnecessary to discuss the more complex copyright doctrine of "fair use." Rowling's rights over the guide don't exist to begin with, so we don't need to go there.
Link (Thanks, Philbert!)


  1. rowling should realize that a project like this is a labor of love. If she wants a piece of the pie (Or lets say she’s just worried about the quality of a product associated with her work) she could just as easily make her own competing product.

    If she’s not planning on doing one, why should she care?

  2. I have to admit, it does cover different ground. Rowling’s will be previously uncovered information – an extension of canon, if you will. The other project…isn’t it supposed to be just a detailing of what has already been written, but put into indexable form?

  3. This is the same issue that was talked about a few months back, then it is a little more complex than what is being shown here.

    From what I gather, the site in question is an encyclopedia of the Potter universe. It is known for using large, slightly re-worded blocks of text from the books themselves to describe things.

    Now, Rowling apparently had no issue with this being a free internet resource. I think she may have even given it her blessing. However, when plans to SELL this came up, she objected. I can understand where she is coming from. I think what is acceptable or even encouraged as a fan resource is very different ground than a commercial product.

    Whether you do or do not (me) care about the Potter fandom, it is an interesting case for looking at fan’s right and author’s control.

  4. This is going to be a tricky one. How about this: all authors who are good people keep total control and all writers who are dicks get thrown to the wolves?

  5. RyanH has it — an encyclopedia or concordance is absolutely legal, unless it includes large blocks of verbatim pulls from the work. If that’s the case, and the quotes exceed a fair use determination, then there could be legal trouble.

    That said, I took a look at a few Lexicon entries, and I didn’t see anything that looked like a copy-and-paste. Rowling seems to be opposed not to text quotes in particular but to the idea of an unauthorized guide in general, which, at least under US law, probably isn’t a supportable position. (In the UK, who knows? Not me.) There have been unauthorized guides to Star Trek, Star Wars, and everything else fandom has cared about for the last fifty years, so Rowling has an uphill battle. If she wins, it’ll be a significant change in the interpretation of the law.

  6. @#3: Rowlings change in feelings about this now that it’s being sold are perfectly understandable. But her legal rights to this work are unchanged: she doesn’t appear to have any.
    Copyright protects her words from being copied, not her ideas. Rowling wrote the Harry Potter books, and thus created the Harry Potter universe. The law gives her limited ownership of only the former. To whatever extent the Lexicon copies her words, she may (or may not) have a case.
    They can describe her world with their words all they want, and all she can do is cry about it. (Of course, all she ought to do is cheer about it)

  7. Great, so Rowling has made a billion bucks, and that’s not enough? She has made a Universe, but she doesn’t have the right to build a wall around it. She has been influenced by the dark side. Ego..ego…ego…

  8. Even if Rowling decides to put out her own encyclopedia (which I hear she does), why on earth should it be viewed as a clash of interests? The HP Lexicon will always be unauthorized and therefore always at a disadvantage to any official releases by Rowling; even if somehow both the Lexicon and Rowling products are identical, the stamp of official approval will give Rowling’s version the edge. It’s difficult to believe any diehard fan of Rowling’s — most of which own multiple copies of each of her books — would be satisfied owning just a fan-produced encyclopedia.

  9. I have thought for some time now that we should change the copyright law so that the rights can be held by an individual, but not a corporation, being of the personal opinion that artificial corporate beings should in no manner hold any rights equal to or above actual people.

    This case makes me rethink that a bit, not in the manner of changing my mind, but just to think it over again.

  10. I’ll get killed for saying this on BoingBoing.. but here we go:

    Lets start confusing things with trademarks and characters too…

    An Encyclopedia would index, annotate information in the Rowling books: fair-use.
    A discussion compendium would provide dialogue & discourse: fair-use.

    But what happens when discussion/discourse starts to turn into fanfiction ? When people start writing backstories about characters, events, items, places , etc ? Then we start to see the value & integrity of Rowling’s characters & creations diminished. It’s one thing to make that for free & gift, but when you start selling it to compete against the real thing – or put it on a site that earns revenue through advertising – you’re no longer in the fair use realm, but you’re co-opting her property for your own personal gain.

    Also, fair use is in regards to “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” – looking quickly at the lexicon, I don’t see where any of those criteria are met. Its not presented with any amount of critical review or academic background – it seems like its just reorganizing her characters and profiting off of her franchise.

    I haven’t looked through the site in detail… if its a mere index & guide to the books within the doctrine of , Rowling has little case. But if they’re creating new stories & facts, or just presenting her work in their own format – thats not fair use. From what little I saw on the site, I wouldn’t call that fair use in the least bit.

    One page listed all of the spells, quoting the text and summarizing the characters & usage. How is that fair use?

    The encyclopedia group should just change their name and avoid headaches. How about “Harry Kotter & PigHerpes’ School of Magic”?

  11. you know, when people who own an idea get too fascist about other’s use, people lose interest.

    Fair warning Rowling et al, the goose’s golden eggs….we made you, we can break you.

  12. Thank you, Jonathan V, but I was thinking more of a porn flick; maybe Hairy Pooter and the Dipstick of Doom, or something. Hell, I don’t know. I need a rum and coke.

  13. Like most things she’s done in the public eye, Rowling is going about this the wrong way. Were I the author in question, I’d have given the fan-based encyclopedia my blessing or at least offered no public comment about it.
    Meanwhile, I’d talk to my publisher and tell them about the fan-encyclopedia and suggest to them that they go out and talk to the major retailers and discourage them from carrying it or be penalized when my own special authorized encyclopedia comes out in three years. Imagine all Border’s stores getting their copies of my book a week later than every other bookstore on the planet. Not likely something Border’s would want to risk.
    Problem solved, and I (as the author) still look like a good guy publicly.
    Seriously, it’s as though no one has ever sat JK down for an afternoon and explained PR.

  14. Jo is normally very supportive of fans and hasn’t interfered, for example, in Mugglenet’s book predicting events in Deathly Hallows. All of the supplemental works of the Potterverse: Quidditch Throughout the Ages, Fantastic Beasts and Where to Find Them and The Tales of Beatle the Bard (fine, I’m a nerd – get over it), have been sold or auctioned for charity. Her encyclopedia would likely be a charitable endeavor as well. She has been an outspoken supporter of the vulnerable, from people with MS to Romanian orphans to fat chicks with bad self-esteem. And, she’s put her money where her mouth is. This lawsuit might be wrong-headed, but I seriously doubt that greed is the motive.

  15. Jonathan V@11: Please see the original article. Wu — who knows what he’s talking about — explains pretty clearly why fair use doesn’t even enter into this discussion. Since this isn’t a derivative work, it isn’t within the scope of rights given to a rightsholder.

    Regarding trademark: remember that dilution of trademark is a very “weak” right, held to a very strict interpretation. Mostly, trademark is about preventing competitors from using marks in a way that confuse the public about the origin of goods or services. Even with a regular trademark theory, taking an action that leads other to take actions that leads to the infringement of a mark isn’t illegal. Under the far stricter dilution doctrine, it’s not even in the ballpark.

  16. #12, yeah, right, like THAT will happen.

    /If she decided to do another series based on the life of Harry Potter’s parents, it would sell out, just like the HP series.

  17. Is it actually Rowling herself doing the suing, or in reality the publishing company’s watchdog lawyers? Let’s not say “She should know better” unless we’re unquestionably certain she as an individual is bringing the suit.

    Lawyers who are not deliberately sought for a specific legal matter by a client, such as those who have reign to bring up suits without the client’s prior knowledge per se, are notorious for making silly claims that are not the express intention of the client.

  18. I did read the article… but then I glanced at the lexicon online – and that did not seem like fair use to me. I wonder if Wu looked through the lexicon too.

    People weren’t making new stories set in her world, they were copy/pasting and indexing text verbatim.

    This isn’t a ‘readers guide’; i saw no discourse, criticism or academic knowledge. It doesn’t give a deeper understanding of the material or lead to a critical analysis of the readings. I saw little creativity in terms of it being an adaption either.

    I’m all for fair use – I just don’t see how this text fits in with that concept. If a rival publisher made this book, I think the world would smack down on them for being evil and trying to capitalize on someone else’s work. Just because its being done by fans doesn’t make it legit.

  19. If passages are quoted at length, fair use does enter in to the equation. However, it’s unlikely that anything less than several paragraphs will be seen as anything other than commentary. From what I’ve seen of the Lexicon, there’s nothing even approaching a long paragraph quoted.

  20. The problem is, even if you read the article linked here, Wu is not likely to have seen the offending document. In fact, none of us have. RDR, the publisher of the Lexicon book, originally threw the request to see the manuscript back at Warner Brothers, telling them to “print the website”. Since that was a shite idea, the publisher then began insisting that the book WASN’T like that, but they wouldn’t say anything more.

    Also, calling the Lexicon book one written by fans, plural, is erroneous. It is almost totally done by the originator of the site. But you knew that, right? You haven’t just been rehashing stories written about it from biased sources without doing your own independent research, right?

  21. I don’t think J. K. Rowling is being greedy or ego-driven. I think she’s having control issues and anxiety now that the series is finished and published and out there. This is about the right time for that.

  22. Jonathan V. (11): First, this has nothing to do with fanfic. Second, no one has ever established that fanfic diminishes the value or the integrity of someone’s characters.

  23. Teresa said, “I don’t think J. K. Rowling is being greedy or ego-driven.”

    It would be very odd to assume that the ego isn’t involved with this. I guess it depends on your favorite school of thought with regard to psychology. I happen to think most writers are a “bit” on the ego-driven side of things. As far as greed, well…if it looks like a duck and it smells like a duck…

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