US Law: Harry Potter and the Mirror of Noisufnoc

On Halloween 2007, author J.K. Rowling and Warner Bros (who own the rights to the Harry Potter films) filed a lawsuit against a small US publisher, RDR Books.

Their aim was and is to block the publication of The Harry Potter Lexicon, which is effectively an A-Z encyclopeadia of all things Potter.

The Lexicon is not, by any means, a new work: it has been around for some time on the Internet and has received praise from Rowling herself, who awarded the web version of the Lexicon with a "Fan Site Award" in 2004. The intention of tranferring the contents of the site to the printed page has, however, provoked a remarkable turnaround in her views on the Lexicon.

During the trial - which commenced on April 14 2008 and lasted three days, the outcome not being expected for a month or so - Rowling accused the author of the site (and the book), Stephen Vander Ark, of "wholesale theft", pointing out that the publication felt like "an act of betrayal". She has also mentioned that the dispute had left her unable to continue work on a new novel, and "decimated my creative work over the last month". Finally, she said the Lexicon threatened to scupper her desire to write a Potter encyclopaedia of her own.

All of this seems, to be frank, a bit rich. It was enough, however, to reduce Mr. Vander Ark - who might be fifty years old or thereabouts, but who himself bears a striking resemblance to Potter - to tears when he testified at the trial.

All in all, it was three days of high courtroom drama, and it's no wonder it caught the public's eye.

It did so, however, mostly for reasons that have little to do with the case's merits. Those merits are, after all, legal and bear little relation to Rowling's curiously vehement and disparaging remarks, or indeed to Vander Ark's equally emotional response.

That's not to say the merits weren't interesting, though. They are.

In effect, the case revolves around the murky concept in American copyright law referred to as "fair use". Fair use, to put it simply, allows for the limited use of copyrighted material in certain instances. The most obvious examples are works of criticism or commentary, where the critic or commentator will have little choice but to regularly quote the original work in order to make his point.

Fair use, US copyright law states, "for purposes such as criticism, comment, news reporting, teaching (...), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

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

In applying these criteria, two of them can effectively be ignored. "The nature of the copyrighted work" refers to the distinction which might be made between, for example, works of fiction or non-fiction, or the distinction between published or unpublished works, the idea being that it might be easier to assume fair use if the original work is non-fictional, and easier still if it hasn't even been published yet. Here, we're talking about the best known children's books in the world, and they're obviously fiction and obviously published. You can't, in short, assume fair use on the basis of this criterion.

The second criterion to be dismissed is "the effect of the use upon the potential market or value of the copyrighted work". I don't think anyone is arguing that the Lexicon will noticeably effect the market or value of the Harry Potter books. The encyclopaedia Rowling herself wishes to write, by the way, is not relevant, for the simple reason that she hasn't written it yet and it therefore can't be protected by any copyright whatsoever.

That leaves us with the remaining two criteria.

Of these, the first is the most interesting. What is it about "the purpose and character of the use" that means it amounts to - or doesn't amount to - fair use? In case law, some answers have been given, but they are hard to apply to this specific situation.

The most well-known answer is that use is fair (or at least tends towards being fair) when the use is "transformative" and not merely "derivative". Does the use add to the appreciation or knowledge of the original work, or does it seek to "supersede" (parts of) that work?

When it comes to, say, literary criticism, this criterion works well enough. Actual criticism (even if it's bad criticism) almost per definition attempts to add to the understanding or knowledge of the work criticised. When it comes to an encyclopaedia, however, the lines can become a little blurry, certainly if the encyclopaedia focuses solely on a single work (which the Pottter books effectively are).

There are two diametrically opposed ways to deal with this issue in this case. The first is to argue that if, you simply take all the characters of the Potter books, all its places, spells, potions, beasts and the like, and sort them all into neat alphabetical lists, you aren't doing much more than taking a large chunk of Rowling's work (and imagination) and regurgitating it.
The opposing argument is that, by its very definition, an encyclopaedia such as this adds to the understanding and knowledge of the original work. It is intended to be used as a reference tool, a work that therefore has a different (and "transformed") purpose than the original work. Forgotten who Kreachure was or what his background amounted to? Look it up in the Lexicon! Want to write an essay on Platform 9 3/4? Check the Lexicon first!

Ironically, Rowling herself has admitted to using the online Lexicon for just such a purpose. On her own website she once wrote: "This is such a great site that I have been known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing)."

I must admit to being on RDR's side when it comes to these opposing views. Once a work is published it is, to a certain extent, handed over to its audience. They aren't allowed to copy it - they must accept the work's integrity and the author's rightful claims to the work as a whole - but the audience is certainly free to scrutinise, dissect, and digest it in pretty much any way they wish to. And yes, that includes, in my opinion, writing something like the Lexicon. In fact, I would consider the Lexicon a prime example of "fair use".

This criterion, it should be noted, also mentions the distinction between use that is commercial and that is non-profit and intended for educational purposes. And this is clearly where Rowling herself has drawn a line: the online Lexicon is freely available to all; the printed version will have to be bought. The trouble is, though, that just about any printed work is, at least in part, a commercial exercise. The trouble is, too, that nowadays extensive sites like Vander Ark's are exactly the same. They will almost always allow for commercial advertising; they may very well call for readers' donations to keep the site up and running. And they can clearly result in commercial fringe benefits for the owners of the site, the impending publication of the Lexicon as a book being, well, a case in print.

As a result, it is difficult to see how this can be a reasonable and practical distinction in today's world. Having said that, though, it might well prove to be Rowling's only real line of attack: if she and Warner Bros can successfully argue that RDR is only in it in order to make the proverbial "fast buck" (and, by implication, couldn't care less about the quality of the Lexicon as a reference), they may stand a chance. That judge in New York may well make the same mistake Rowling is making: that a fansite like the Lexicon is a cute, innocuous affair, whilst a publication of the self-same material in book form by a small publisher is a horrendous breach of copyright.

The final criterion - the "amount and substantiality of the portion [of the original work] used" - ties in with the previous one. Again, the arguments to either side will have to express polarities, with Rowling and Warner Bros echoing their view that since it is in the Lexicon's very nature to basically sum up everyone and everything in the Potter books, the Lexicon uses a great amount of the original work indeed. And RDR will argue that that is exactly why it can be considered a reference tool - it wouldn't be very much use if Vander Ark had, for example, left out all entries starting with the letters "H" through "P".

All in all, this is an intriguing case, the more so, perhaps, by virtue of the fact that quite a few legal experts don't seem very sure of the outcome. That may surprise some people, but the fact is that an endeavour such as the Lexicon is a rare thing, the more so if it is undertaken with a regard to a more or less recent work (where copyright protection still applies), but not by the original publishers and without the author's consent. In other words, such a dispute just doesn't really crop up much.

Equally and additionally, though, it is another example of how the Internet has totally changed everyone's perceptions on so many issues. This time round it's legal issues that count, but simmering below the surface we have Rowling's clear and no doubt honest difficulty in letting go of some aspects of her own creation - not in the ethereal world of the Internet, but in what she seems to perceive as the real world. And on the other hand we have the hapless Vander Ark, who spent years working on his site out of love for Potter and admiration for Rowling to just about everyone's acclaim, only to now be told he is "really" just a thief after all.

There's something decidedly odd about this case. It does two things at once: pose a legal problem that's intriguing enough in itself, and then juxtapose it to the ever-transcending reality of the virtual world. It's a Mirror of Noisufnoc.