J.K. Rowling – Worst British Export Since Rick Astley.
What do you think?
Copyright Law
Law 6102 – Professor Randazza’s Copyright Law Course – Barry University School of Law – Fall 2007
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November 4, 2007 at 1:08 pm |
So I freely admit that I am a Harry Potter fan. By extension, I am a fan of J.K. Rowling. By further extension I am a fan of the Harry Potter Lexicon (the online version of Harry Potter Compendium at issue). Let me just say that J.K. Rowling is perhaps one of the more openminded authors in the world today – she has openly embraced many fair uses of her novels and her characters, such as fanfiction, fanart, and the numerous fansites that proliferate on the internet. She even happens to be a fan of the Lexicon. The Lexicon itself is very expansive: it contains a timeline of the series; a timeline of the magical world in which the series is set; an encyclopedia of every character, person, place, or thing ever mentioned in the series, the movies, or even in interviews with J.K.R. It also contains essays submitted by various fans. In regards to everything posted on the site, except the essays; nothing on this site is the result of original thought. Everything originates in the stories. Nevertheless, there is plenty of original expression exhibited on this site. That being said, the site isn’t the issue, it’s the book based on the site. I think the fair use analysis would depend entirely on what portions of the site he intends to include in the Compendium. The essays would probably be copyrightable in their own right, and if not they would be clearly protected by fair use. The encyclopedias, however, may not be. It has been common knowledge for some time that J.K.R. has intended to write her own definitive encylcopedia of all the characters ever mentioned and the world in which they live. In fact, she has already written two such encyclopedias (proceeds went to charity). The Lexicon incorporates numerous references from those already existing encyclopedias, but with much less descriptions and a caution to buy the book for more information.
Assuming the analysis in Castle Rock was incorrect and the Prof. is correct that Castle Rock was decided incorrectly because the additional material in the trivia questions was sufficiently original, this case is not analogous to Castle Rock. This is not a trivia book where the author actually has to make up additional facts to include in the trivia questions. All the “facts” are already available to the author via sources published by J.K.R. (her books, the movies, her interviews, the games, and even her website). If the Compendium is to include the timelines and encyclopedias, such use would therefore have to be analyzed under fair use.
I am not entirely sure whose side the fair use analysis would favor. The purpose of the Compendium is commercial in nature. The nature of the use, I guess could be said to inform Harry Potter fans about the Harry Potter world by compiling readily available information in a new format. The nature of most of the the copyrighted work is fictional and published. However, some of the work is unpublished. J.K.R. is famous for having boxes of written material that contributed to her works – unpublished written material. I don’t think the live person interviews qualify as published (as opposed to the online interviews and the pre-taped interviews). The Lexicon at least relies extensively on these unpublished materials (I don’t know how much the Compendium will rely on these sources, though my guess would be extensively). The Compendium proposes to use a substantial amount of J.K.R.’s protected material. (The characters, storylines, plots, creatures, etc. are all created by J.K.R.) I think all these factors weigh in factor of J.K.R, if only slightly. The effect on the market place is the factor that I am most unsure about. I would be inclined to say that the Compendium’s author’s intended effect is to subplant the market for the original. Like I said, earlier, its common knowledge that J.K.R. intends to write a definitive encyclopedia. If this was any other subject than Harry Potter, I would say that this factor weighs in favor of J.K.R. and therefore against fair use. However, because this is Harry Potter, I don’t think that the proposed Compendium would have any actual effect on the market for the original. People will buy J.K.R’s book, no matter what. Honestly, though, I still think the complete analysis weighs in favor of J.K.R. and therefore against fair use.
But I do not think this matter will ever reach maturity. This will settle out of court. Amicably.
I will close with the words of J.K. Rowling in response to this pending controversy: “From what I understand, the proposed book is not criticism or review of Harry Potter’s world, which would be entirely legitimate – neither I nor anybody connected with Harry Potter has ever tried to prevent such works being published. It is, we believe, a print version of the website, except now the information that was freely available to everybody is to become a commercial enterprise. It is not reasonable, or legal, for anybody, fan or otherwise, to take an author’s hard work, reorganize 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.”