Laurie Cubbison, Radford University
Overview of the case
J. K. Rowling’s Harry Potter series has generated an active, global fan community eager to purchase not only the novels and films but also products associated with the series. To that end, Rowling has also published books mentioned in the novels – Quidditch Through the Ages and Fantastic Beasts and Where to Find Them—with proceeds going to charity. The series’ popularity has led fans to create websites on which they share ideas, information, and their own creative work inspired by the series with scant regard to issues of copyright infringement. Fans’ high interest in generating their own materials and their willingness to buy associated products has resulted in the Harry Potter series becoming the focal point of the copyright issues connected to fan communities populated` by both children and adults . After licensing the Harry Potter films, Warner Brothers sent cease-and-notices in 2000 to websites whose domain names featured some aspect of the series . The resulting fan backlash convinced Warner Brothers to back away from enforcing copyright against amateur websites so as not alienate the built-in audience for its films and other Harry Potter products.
One popular fan-generated website was The Harry Potter Lexicon created by Stephen Vander Ark with the eventual aid of nine other fans . The website is typical of encyclopedias generated in relation to fantasy and science fiction series. Such series engage in world-building: the construction of a setting with its own history, geography, literature, and sciences. Encyclopedias, whether fan-generated or licensed by the author, help readers keep track of the “fictional facts” that provide the context for the narrative. In 2007, with anticipation for the final Harry Potter novel running high, Roger Rapoport of RDR Books approached Vander Ark to develop the website into a print publication that would incorporate information from Harry Potter and the Deathly Hallows, as well as the other novels. The book was to be limited to the website’s encyclopedia sections, with entries organized alphabetically, and to be published by October 2007. Rapoport began marketing the proposed book. While Rowling’s attorneys had been willing to ignore the fan-generated websites, a published book that might compete with an encyclopedia prepared by Rowling was a different story; therefore, they sent a series of cease-and-desist letters and then filed suit.
Weighing the Criteria of Fair Use
The case hinged on whether the manuscript for the proposed book qualified as a fair use of Rowling’s work, including not only the seven novels, but also the two companion books, as well as other products (Famous Wizard cards and The Daily Prophet newsletters). An important point to be made is that the lawsuit did not address the website, which is still available online; it only covered the book to be published for profit. Thus, the legal status of online fan-generated materials remains murky.
As Judge Patterson balanced the fair use criteria against each other, he asserted that in its function a reference guide to a creative work qualifies as fair use. However, the status of this particular manuscript involved more than its intended purpose; it also involved the extent to which Vander Ark and his co-authors used Rowling’s language in creating The Lexicon. Patterson ruled that the manuscript drew not only “fictional facts” but also Rowling’s own language from the source texts through extensive quotation, sloppy paraphrasing, and inconsistent citation. Information from the two companion books was judged to be particularly problematic, as those two books served a similar reference function to The Lexicon, and the high quantity of information drawn from them could harm the market for them. In his ruling Patterson did not consider the potential market harm to an encyclopedia prepared by Rowling herself to be a sufficient argument against The Lexicon, stating that “Notwithstanding Rowling’s public statement of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works.” He added that “While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally be encouraged rather than stifled” .
Publication of the manuscript was thus enjoined. However, that was not the end of the story. Although the defendants’ attorneys appealed the verdict, they later withdrew the appeal. Anthony Falzone, who aided the defense as a representative of the Stanford Law School’s Center for Internet and Society, reported on his blog that following the trial, Vander Ark created a new manuscript that “addressed some of the concerns expressed by J.K. Rowling at trial, and those expressed by Judge Patterson in his thorough and detailed decision,” leaving both plaintiffs and defendants satisfied . The Lexicon: An Unauthorized Guide to the Harry Potter Fiction and Related Materials was published in January 2009. In a follow-up to the trial, Robert S. Want has published an overview of the case, complete with court documents and an extensive discussion of fair use , a book that could serve as a textbook in a course with fair use as its theme.
Rewriting The Lexicon
In the introduction and acknowledgements, Vander Ark called it “a new, different book with a new focus and purpose, mindful of the guidelines of the court” . The published book demonstrates that the project changed from one that gathered information and wording indiscriminately from Rowling’s oeuvre to a much more systematic and focused document. Rather than slavishly relying on Rowling’s language as the website does (and as the trial transcript indicates that the original manuscript did), The Lexicon provides a straightforward identification of the term, with comments, allusions, and clarifications placed in italics at the end of some entries. In the process the text moves from being dominated by fannish enthusiasm to becoming professional, even scholarly, in its tone.
And that perhaps is the crux of the issue when it comes to the difference between fan-generated encyclopedias and professionally published reference guides. Fan-generated materials are acts of love requiring many hours of work, prepared according to fan community standards that value a comprehensive supply of information over scholastic citation practices and legal standards of fair use. The remuneration for such work comes in the form of the adulation and appreciation of other fans. But when the work passes from the fan community into the broader arena of commercial products associated with a particular fandom, the rules appear to change. Or perhaps, it is rather that the rules begin to be applied. In my opinion, two significant facets of this case are 1) that only the book project and not the website was included in the case; and 2) that the defendants withdrew their appeal and wrote a new version of the book that met the guidelines established in the trial.
Thus, a lesson that can be gleaned from the case is that the legal process of establishing fair use in relation to particular texts can in fact guide the revision of those texts into ones that are able to serve the same purpose more effectively while still meeting a legal standard. In the process of transforming a fan-oriented text into a professional version, the fan grows as a writer, producing a text that surpasses in quality the earlier copyright-infringing version.
A significant implication for teachers of writing is the role that plagiarism in the form of sloppy quotation and citation played in the determination of fair use in this case, but also how Vander Ark as a writer made the material his own through the production of the published book. Thus, the website, the lawsuit, and the published book become a valuable case study of source use, fair use, and revision.
References
Falzone, A. (2008, 6 December 2008). Lexicon Resurrected. Retrieved 14 February, 2009, from http://cyberlaw.stanford.edu/node/5960.
Jenkins, H. (2006). Convergence Culture: Where Old and New Media Collide. New York: New York U P.
Murray, S. (2004). ‘Celebrating the Story the Way It Is’: Cultural Studies, Corporate Media, and the Contested Utility of Fandom. Continuum: Journal of Media and Cultural Studies, 18(1), 7-25.
Vander Ark, S. (2000-2008, 20 July 2006). The Harry Potter Lexicon. Retrieved 16 February, 2009, from http://www.hp-lexicon.org/.
Vander Ark, S. (2009). The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials. Muskegon, Mich.: RDR Books.
Want, R. S. (2008). Harry Potter and the Order of the Court: The J. K. Rowling Copyright Case and the Question of Fair Use. New York: NationsCourts.com.
Warner Bros. Entertainment Inc. et al. v. RDR Books et al., 07 Civ. 9667 (United States District Court, Southern District of New York 2008).
