Gaiman on fair use

Weighing in on JK Rowling and Warners' lawsuit against a fan-compiled concordance of the Harry Potterverse, Neil Gaiman (whose first two books were unauthorized nonfiction and relied heavily on fair use) describes the creative importance of the freedom of rip each other off in fantasy lit:
Back in November I was tracked down by a Scotsman journalist who had noticed the similarities between my Tim Hunter character and Harry Potter, and wanted a story. And I think I rather disappointed him by explaining that, no, I certainly *didn't* believe that Rowling had ripped off Books of Magic, that I doubted she'd read it and that it wouldn't matter if she had: I wasn't the first writer to create a young magician with potential, nor was Rowling the first to send one to school. It's not the ideas, it's what you do with them that matters.

Genre fiction, as Terry Pratchett has pointed out, is a stew. You take stuff out of the pot, you put stuff back. The stew bubbles on.

Link (via Copyfight)


  1. This was the perfect post for me to read. Thank you. What does Cory Doctorow think about this case (publisher is from Michigan), where the lexicon of Potter-verse is used? It seems fair to me, in as much as Potter has become iconic and is fodder for others to use.

  2. Wow, Tim Hunter. I haven’t thought of him in a while, even though I have a quote from the original Books of Magic mini-series in one of my sig files. I can’t really see much of a similarity between Potter and Hunter, beyond “boy-wizard-in-training”. Potter willingly embraced his magic and strove to increase his ability, while Hunter would deny it and fail to acknowledge the gift that he was given. Sure, they both had massive potential, but what good would a main character be that didn’t have it?

  3. If you really want to see a case of “genre borrowing,” compare elements of the Matrix to Grant Morrison’s Invisibles.

    But it all comes out in the wash, I suppose. Morrison is a superstar in his own right, now, as is Gaiman. The excess capital that Rowley may have accumulated extending the mythology of the bespectacled young wizard is really besides the point.

  4. Try imagining a world in which character types and situations can be claimed exclusively by the authors who create them. It’s doubtful even the Scotsman journalist would think that reasonable.

    What this story demonstrates is just how ingrained the concept of intellectual property has become, even before IP had become a household phrase. It has generated this persistent idea that everything must be owned by someone, even something as vague as a plot concept.

    The content industry want kids to be taught how to respect intellectual property. Perhaps, instead, they need to be taught how to respect fair use and how to work around these fictional barriers to creativity.

  5. You know, Rushkoff, I just knew that someone was going to bring up Matrix/Invisibles. How about Invisibles/Illuminatus! Trilogy? Or Invisibles/Star Wars? Or Star Wars/Dune? Or any of the above/your basic Arthurian legend?

    I think that the quote from Pratchett that Gaiman cites is closer to the truth than any egotist fantasy author who insists that their work is a precious and unique snowflake. Also, Gaiman once again proves himself to be a class act, head and shoulders above the rest.

  6. If I work up a list of the ten basic plots… hmm, better make it eleven, I’m sure nobody else has done eleven… and publish it, I could claim royalties on every piece of fiction written everywhere in every language! I’ll be rich, I tell you, RICH!!!

  7. Cory, your quote from Neil is clearly dated as originating from March 1998. You may want to clarify that in your post; it does nobody any favours to suggest, even obliquely, that a 10-year-old story is new. Next thing you know, some lazy journo will be citing your post as “news” and the whole sorry mess will boil up again.

  8. As far as I can tell, books like Robert Foster’s A Complete Guide to Middle-Earth and The Atlas of Middle Earth have been selling well for years without bearing any “Officially Authorized” stamp or clear co-sponsorship from the Tolkien estate. Does anyone know if these works were ever legally challenged, or if their authors/publishers have arrangements with the estate? Does the fact that they came out after Tolkien died change their legal status in any way?

    Obviously Harry Potter, Inc. is now far more like a contemporary brand than a traditional literary endeavor (and Warner Brothers, the film producers, are also a party to the suit), but Tolkien’s heirs haven’t exactly been shy about continuing to mine his notes and source materials for an endless series of publications.

    The idea that JK Rowling herself is ever going to “write” something as mundane and encyclopedic as this concordance strikes me as pretty ridiculous. What probably should have happened here is that the media conglomerates involved should have just bought the Lexicon outright for a hundred grand or so, polished it up, stuffed it full of Officially Licensed art, a Rowling introduction and some Bonus Content, and released it along with the next movie. The corps are saved the time and expense of putting their own version of the Lexicon together, everyone involved would have made a ton of money, and all of these uncomfortable issues of how far copyright really extends could have been put off indefinitely.

  9. Ursula K. LeGuin was of a similar mindset as Gaiman: She said she didn’t mind that Rowling featured a young protagonist in a school for wizards. She did object to numerous reviewers who claimed it was an original concept, thirty years after her Earthsea books were publsihed.

  10. Um, it only takes a moment’s reflection to realize that there have been several dozen unauthorized Harry Potter books being sold for years now and Rowling hasn’t gone after any of them.

    The difference in this case is that the Lexicon was to be composed almost entirely of unattributed quotes directly from her books, as opposed to new material written by the ‘author’. It was basically an encyclopedia, but rather than describe people, objects, etc. in his own words, Vander Ark lifted relevant passages straight out of the books, with at most a note referencing the chapter number but often not even that much. According to court testimony, the book was over 90% Rowling’s words, and not Vander Ark’s. This goes far beyond anything resembling Fair Use.

    If she were trying to prevent any use of her world at all and fighting any sort of fan works, I’d be in complete agreement with the sentiments in this thread. But that simply isn’t the case here.

    The knee-jerk reactions in these comments based on knowing nothing more than the couple of paragraphs quoted above are sad and a little scary.

  11. Also, Zaren, there may be extreme psychological differences between Tim Hunter and Harry Potter, but I think the main thing that fueled the conspiracy theories was their extreme physical resemblance.

  12. How is a concordance adding anything to the “stew”, though?

    It seems to me Gaiman is writing about something different altogether.

  13. Nelson.C@6: Great idea! As long as none of those 11 plots fit into Polti’s list of 36 universal plots, you’ll make millions!

    MLambert@10: that amount of content lifting makes a great deal of difference, although since it’s referred to as a concordance it’s (1) unlikely to be mistaken for another Harry Potter novel and (2) supposed to quote sections of the text; it’s a list of words in their context. The lack of attribution is worrisome, but might just be sloppy scholarship rather than an attempt to fool people into thinking it’s Rowling’s work.

    Jeez, all this fuss makes me want to take a look at this wondrous item. Not enough to actually go looking for it, but, you know, idle curiosity.

  14. The “90%” testimony I’ve found claims that they are her words, but I’m not finding any side-by-side comparisons.

    Is it really? 90% verbatim quotes? The web site didn’t seem like that. Where can I see a side-by-side comparison.

  15. “Genre fiction, as Terry Pratchett has pointed out, is a stew. You take stuff out of the pot, you put stuff back. The stew bubbles on.”

    A good metaphor, but even older than that: J. R. R. Tolkien used the same image of stuff going into a bubbling pot, and stories being the resulting stew.
    IIRC, it was in 1947 in his essay “On Fairy-stories”.

  16. Gaiman’s opinion on this should be no surprise. 99% of his characters and themes were pre-existing. His whole career has been based on the use of other people’s characters and stories. He has made a ton of bucks with fair use.

  17. Pduggie – I believe that the actual text isn’t available for the public – the 90% estimate is from Rowling & her lawyers. However there have been conflicting reports from Vander Ark himself over whether any of the analysis present in the online version will be in the book. Last I heard, he said he would not be using articles from the site(presumably because then he would have to pay the people who wrote them).

    Hysterically, the most calm, coherent reports on the subject I’ve seen have been on Fandom_Wank.

  18. Those of you interested in a legal perspective on the copyright issues might want to have a look at this article published back in March, called Harry Potter and the Deathly Lawsuit.

    A sample: “Even if the court concludes that the Lexicon used a significant amount of Rowling’s work, they will question whether the Lexicon uses Rowling’s raw material to create new information, insight, or understanding. If the Lexicon adds value or creates new meaning out of the Harry Potter works, a court will likely deem the Lexicon to be “transformative.” Transformative works are protected under the fair use doctrine, as the new product created from the copyrighted material is seen to add to the “enrichment of society.” ”

    Disclaimer: written not by lawyers, but by law students at the University of Oregon… and this is shameless self-promotion, because even though I didn’t work on this particular article, I’ve written a bunch of other stuff at the same site.

  19. @MLambert
    Since you have no history of commenting, please provide backup to your 90%. A link to article talking about it would be nice, if you don’t have a link to the actual court testimony.

    @Murphys Lawyer
    Journalists are paid to check the validity of their sources. If some unfortunate reporter used Cory’s blog post (about Gaiman’s blog post, which happens to have quoted an even older Gaiman blog post) as his source, and didn’t click on the big ole underlined link button and read Gaiman’s post, and further didn’t go back and read the post Gaiman quotes himself from [to make sure it wasn’t misquoted]…
    Well, that journalist would deserve to be fired.

  20. Jo Rowling has been very supportive of fan efforts, including for-profit books. She’s suing not just because this is a cut-and-paste job, but because this undermines her plans to write an encyclopedia whose proceeds will go entirely to charity. Her previous for-charity books raised £15.7 million for UK Comic Relief. I hope that she wins. I’ve never seen anything that doesn’t suggest that she’s one of the most decent people alive, certainly one of the most decent ultra-rich people.

  21. @Antinous, I wouldn’t dispute that JK Rowling is very kind, generous, decent, great in bed etc. etc. but it doesn’t really matter that she’s planning on publishing an encyclopedia herself, nor that she’s planning to donate the money to charity. Nor should it, What matters is whether her suit is legal or not.

    To venture into the ever nebulous world of hypothetical examples for a second her situation as you describe it is akin to ACME lightbulb manufacturers suing a rival company for copying their design (they say), when the rival’s design significantly improvees upon it (he says).

    It doesn’t matter whether ACME were going to make an improved lightbulb just like their rivals, or if they were going to donate all the profits from it to widows and orphans, what matters is whether the design was a copy or not. And, unless you want to change our legal system to one of utilitarianism from one of absolute morals, thats how it should stay.

  22. It may be fair use, but don’t forget that Harry Potter and related indica are also trademarks.

  23. If Rowling want to write her own Potter encyclopedia, nothing will stop her. So the fans will yet another book to buy. She’s so much money now, that were were to cry about her lost future income is pure bs. She can start giving every penny from royalties to charity now, if she’s so concerned. She’s invented something the world has embraced and now she doesn’t know what to do because she can’t control all of it. My advice is that she count her blessings. Greed.

  24. Jeff,

    She’s given about a hundred million dollars and a huge amount of time to charity. She has explicitly stated that her encyclopedia will be a charitable endeavor. If that’s greed, we need more greedy people in the world.

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