Harry Potter and the Doctrine of Fair Use

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News Media Commentary
Title: Harry Potter and the Doctrine of Fair Use
Commentator: Casey Fiesler
Date(s): September 22, 2008
Venue: online
Fandom: Harry Potter
External Links: Harry Potter and the Doctrine of Fair Use
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Harry Potter and the Doctrine of Fair Use is a 2008 article by Casey Fiesler.

It was posted to Firefox News, a for-profit fan site.

A version of this article was originally published in JETLawBlog.

Some Topics Discussed

From the Article

After nearly five months of speculation from fans and legal scholars alike, a New York judge handed down a verdict in favor of J.K. Rowling (and Warner Brothers, holders of the film rights in her books) in the controversial copyright case involving "The Harry Potter Lexicon," a fan-website-turned-unauthorized-reference-book. There were some interesting and delicate issues of copyright and fair use involved in what was ultimately a very thoughtful decision by District Court Judge Patterson. What follows is an analysis of the decision and why the court eventually said, "Avada Kedavra!" to the print version of the Lexicon.

Though certainly not faced with a cut-and-dry situation, the court held that the four factors when considered together failed to support a finding of fair use. Though the first factor did support transformative use, considered with the third factor in regards to how much copying is necessary to achieve that use, the balance tips against fair use. Moreover, both the creative nature of the works and the potential market harm weighed against fair use.

The court was careful to note, however, that this finding does not apply to reference guides in general, and in fact suggested that they should be "generally encouraged" by copyright law since they provide a legitimate benefit. However, these guides should not be able to (to borrow Rowling's term) "plunder" the original works. The bottom line here is that the Lexicon simply copied too much of Rowling's protected expression, far more than would be necessary to create a valuable reference.

So the finding was that the Lexicon is infringement, and does not have fair use as an available defense. The court then had to consider what relief Rowling should be granted. An injunction (stopping the infringing work from being published) does not automatically follow a finding of infringement. However, the court found legitimate sources of harm from the potential publication to Rowling: (1) Rowling testified that if the Lexicon were published it would destroy her desire to continue with plans for her own encyclopedia (which would harm not only Rowling, but the potential readers of the encyclopedia as well as the charitable organizations that would receive the proceeds), (2) the Lexicon would harm the sales of the two companion books, because readers would have no reason to purchase both, and (3) because of the extensive verbatim copying, publication of the Lexicon could diminish Rowling's copyright in her original language by resulting in conflicting assertions of copyright between Rowling and Vander Ark.

The court ultimately did issue a permanent injunction against the publication of the book, and also awarded $6,750 in statutory damages, the very minimum allowed under the statute ($760 for each work infringed–the seven novels plus two companion books).

Even though this case was a defeat for the Lexicon itself, because of the judge’s thoughtful decision, it is not a severe blow to fair use or to the reference/companion/guide market. The court actually vindicated some important principles in terms of reference guides. In fact, this decision may prove to be a valuable resource for the creators of these sorts of guides who want to stay on the right side of copyright law. In most cases, these creators (and Vander Ark probably fell into this category as well, and simply got in over his head) have no desire to infringe upon copyright in any way, as companion books are often works of love, homages, intended to supplement and enhance the original work rather than harm it. Because the decision gives concrete examples of where the Lexicon crossed the line, it can help others avoid the same mistakes in the future.

What does all of this mean for fans? Actually … probably not a whole lot. Though it did involve a fan, this case wasn't about a "fan work" in the usual sense, since the defendant was a publisher looking to capitalize on Rowling's success. The decision does not mention the potential legality of the Lexicon website at all, since that wasn't part of the complaint. Neither does the decision seem to set any sort of precedent that could be applied to fan fiction. After all, it was mostly the Lexicon's overuse of Rowling's original language that was its downfall, and this is not an issue for the majority of fan fiction. Though the verdict is unfortunate for those fans who wanted a print version of the Lexicon for their own use, it shouldn't spell gloom and doom for the future of fair use and fan work.

Fan Comments

[Thomas]: Reading through this, I have to ask, does Rowling and her legal team all think we're morons? Obviously. Who, in their proper wits, is going to purchase a Harry Potter Lexicon in order to read the stories? That's what the novels are for. The Lexicon serves to amplify the original works and make it all understood. Now, readers are at Rowling's mercy to when she chooses to publish. Last year, when "Deathly Hallows" was published she said she was done. Now, she's going to publish her own reference work? When? How long will this take. A guy with a non-profit harming a multi-millionaire? I guess he has. I would have purchased both works. I'm certainly not going to purchase EITHER the Beedle the Bard OR Rowling's encyclopedia. Such greed and avarice. And since most U.S. court proceedings and decisions are based on previous ones? This is landmark decision-making, and it will only serve to harm the study of literature across the board. Who's going to want to do and publish research if they'll be susceptible to decision such as this? A fair number of literature instructors at the university level, will now have to find other ways to make their livings rather than research and publication.

[Rachael Phillipson]: A very thoughtful, concise and non-bias article. You managed to collect information about both sides of the story, and present it clearly and honestly. I didn't have much information and view on this previously, and still don't have much of a leaning towards either argument, but you've heightened my knowledge of the situation.