Copyright Issues: The HP Lexicon Case

"Did I think, when this started, that this would be a landmark case? No. It wasn't until the legal team from Stanford picked up the case that I realized what this meant in terms of the law or how important it would be to copyright. "-- Steve Vander Ark, author of the Harry Potter Lexicon website and the disputed book of the same name, key witness in the case of JK Rowling and Warner versus RDR Books.

When a fantasy writer and billionaire sues the work of a school librarian, metaphors abound: David and Goliath. JK Rowling's Dark Mark. Vander Ark = Voldemort. JK Rowling, author of the seven world-wide bestselling Harry Potter books, is suing small-time publisher RDR Books for printing the Harry Potter Lexicon, an obscure Harry Potter encyclopedia based on the website of the same name, and written by school librarian and Potter fan Steve Vander Ark.

Rowling is claiming copyright infringement now, even though the HP Lexicon has been available for free online for seven years (yes, there is irony here.) The Harry Potter Lexicon is an online encyclopedia she awarded best fan site in 2004, that she admits to using, and that was possibly used by Warner Brothers for a timeline found on the Harry Potter DVDs (without permission, incidentally).

So the question that immediately comes to mind here is why?

Why sue RDR books over a 10,000-copy print run of a book that anyone can get for free? Why fly to the US, spending thousands of dollars in travel and legal fees, to cry on the stand and appeal to fans over a copyright infringement that she had already accepted -- even rewarded?

Is there some confusion about digital versus printed copyright law? Here's what Steve Vander Ark, the school librarian, author of the HP Lexicon website as well as the book, has to say.

"Copyright is copyright -- it does not matter whether it is digital or print. It might be different in [JKR's] mind but that does not make it legal or true. I think copyright is a wonderful thing, I think copyright is fantastic, even have a copyright notice on my website; the point is not copyright. The question is really one of fair use; copyright is fine, but what really can be done in the framework of fair use?" -- Vander Ark

Case law has never seen a fair use case about a book derived from a website, because, after all, this is a new phenomenon. The last major revision to copyright law was in 1976, long before the Internet existed as a public entity. Therefore, a gray area exists here, an area that has never been tried. Says Vander Ark, "If [JKR] wasn't challenging copyright, somebody else would be trying to create copyright in this new reality of user-created content...there's no law now, no guidelines." While some see this case as somebody trying to steal a bit of JK Rowling's glory, others see it as an attack on fair use and commentary.

"This frivolous lawsuit puts at serious risk the entire tradition of commentary on fiction. Any student writing a paper about the Harry Potter books, any scholarly treatise about it, will certainly do everything she's complaining about." -- Orson Scott Card

The crux of the lawsuit here is the term "fair use." Fair use is what allows me to quote Orson Scott Card in this article; it allows an author to use elements from a book, or song, or painting to create a new work, so long as the work is truly original and not merely a copy.

There are four guidelines (read: guidelines, not laws) regarding fair use:

1. The purpose and character of the use.
2. The nature of the copyrighted work.
3. The portion used in relation to the copyrighted work as a whole.
4. The effect of the use on potential market value.

There are two problems here: the amount of work used, and the commercialization of the website as a book. Rowling says too much was used, and that the book could have an effect on her future profits. RDR Books counters that Vander Ark is within his rights, and that the effect on her profits would be negligible. Indeed, after the cost of the lawsuit, Vander Ark doubts they'll even break even.

So why care about a case like this? Well, should Rowling win the suit, the repercussions in fair use law would be felt 'round the world -- it would make it much more difficult for students, fans and the average joe to make use of literary works that already exist without the threat of a lawsuit. It's been rumored that JKR's legal team has been using strong-armed tactics to keep anyone from benefiting from the imaginative world of her books -- she also sued a community group in Calcutta for making Hogwart's Castle for a float parade -- so a win for Rowling would mean that her legal team, as well as other corporations holding the copyright to famous works, has precedent to sue. Should she lose, it means that big name corporations like Warner Brothers and Disney might think twice before sending cease-and-desist letters at will, counting on intimidation tactics to keep people from using their favorite works to appeal to the national consciousness. What the ruling judge, Judge Robert P. Patterson, hopes is for both sides to come to a settlement, so he doesn't have to go down in history as the judge that changed copyright law forever.

I can certainly sympathize with that.