Accio Fair Use

Hary Potter logoGrowing up, I was a big fan of Harry Potter. My grandmother gave me an early copy of Sorcerer’s Stone that she received from a friend who worked at Scholastic. I was hooked immediately, and over the next 10 years eagerly anticipated each book or film in the series.

While waiting, I’d go to various fan sites, including the Harry Potter Lexicon (HPL), a website dedicated to cataloging the detailed world JK Rowling created. The site listed every character, spell, and anything else mentioned in the books, and had developed one of the first comprehensive timelines of the series. (Fun fact: Harry Potter was born on July 31, 1980.) Even JK Rowling herself used it! As she wrote when bestowing HPL a “fan site award” in 2004:

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). A website for the dangerously obsessive; my natural home. 1

It seemed that Steve Vander Ark, the creator of HPL, had done a great service to the Harry Potter fandom.

However, when he decided to publish the website in print form, Warner Brothers (WB), the legal copyright owners of the series, filed a lawsuit injunction in October 2007 against Vander Ark’s publisher, RDR Books, citing copyright infringement.

This was not the first time that WB had asserted its legal copyright of the Harry Potter franchise. In 2000, Harry Potter fan sites across the world, almost all of them run by children, received cease-and-desist letters from WB. One such letter, sent to the 15-year old British webmaster of www.harrypotterguide.co.uk read in part that the domain name might “cause consumer confusion or dilution of the intellectual property rights” of Harry Potter. The letter made it clear WB would go to court if necessary. As news spread of these letters, WB pulled back, with on VP stating “We’ve been naive… the studio’s letter is an act of miscommunication. We never intended to shut down any Web sites.”2 In the end, few fan sites were halted. The sites had a good claim for fair use using the “four factors”3: the nature of the use was referential not derivative, it was used for discussion and modifying (e.g. fanfiction), the use did not constitute widespread reproduction, and importantly they weren’t causing financial loss for WB, but instead bringing increased awareness of the brand. And besides, WB didn’t want the negative publicity of suing hundreds of children.

The RDR case was different though. Using the four factors again: the use was basically straight reproduction, the original work was not highly modified, the extent was literally the entirety of the series and and the published Lexicon would potentially harm WB financially (Rowling had always planned on writing an encyclopedia of the series herself, and thus, her lawyers argued, another encyclopedic work would diminish potential sales.)

Ironically, in the end RDR lost, but “the big winner actually was fair use,” according to copywright lawyer Jonathan Band at the time of the ruling. As Patricia Aufderheide and Peter Jaszi describe in Reclaiming Fair Use, in the ruling Judge Robert Patterson stated that the Lexicon was an example of transformativeness since it served reference, not entertainment purposes. However, he ruled in favor of WB and Rowling since the to-be-published version of the Lexicon “lost sight of [its] transformative purpose” by copying too much material verbatim.4 Several Fair Use law advocates like Band approved this decision, since in addition to establishing that reference works were transformative, it did not set a precedent that writers had exclusive access to reference works of their material.5

As someone who used HPL, I agreed that it was a transformative work. Fortunately, they were able to publish an edited “more transformative” version in 2009. So in some ways the case ended up as a win-win for both Harry Potter fans and Fair Use promoters.

Do you agree with the court (and me) that reference works like the Harry Potter Lexicon are transformative? Or do you think they’re actually derivative works?

Footnotes:

1 This quote was originally on JK Rowling’s website, which has since been redesigned and no longer shows the fan site awards. However, the Internet Archive still has access to the older version.
2 See Anelli, Melissa, Harry, A History, New York: Pocket Books, 2008, pages 88-100 for more on the history of Harry Potter fan sites.
3 Aufderheide, Patricia and Jaszi, Peter, Reclaiming Fair Use, Chicago: University of Chicago Press, 2011, page 158.
4 Ibid 89-90.
5 If you want to read more about the RDR case, check out its Wikipedia article, which is both highly detailed and heavily sourced.

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About Zach Klitzman

A History Grad student at American University

3 responses to “Accio Fair Use”

  1. ameliawhere says :

    Zach,

    I completely agree with you! As a fellow HP nerd, I found myself often looking on the HP Lexicon and other Harry Potter fan sites (and yes, I’ve also read Melissa Anelli’s book). I consider the Lexicon to be transformative because it enhances and adds to the experience of reading Harry Potter. It is not a straight duplication, but a reference material that even J.K. Rowling herself has frequented. I’m glad you also briefly mentioned fanfiction, because that is another contentious issue with copyright laws. I know Rowling herself has given her blessing for fanfiction, but other authors have not been as forgiving of these creations. As long as the fanfiction author is not making money off of their work, I see no reason why these transformative, creative works should not be allowed.

    -Amelia

  2. drdankerr says :

    You do an excellent job tying in your interests to the issues raised in the reading. Aufderheide and Jaszi would argue that you are be putting too much weight on the four factors. With that said, you do emphasize the issue of transformativeness. It would appear that derivative has been interpreted as transformative.

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