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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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February 12, 2008

How Much Potter Does Rowling Own?

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Posted by Alan Wexelblat

Dave Langford's February ANSIBLE (a fanzine for fantasy/SF readers and authors) has a commentary from Steve van der Ark relating difficulties encountered in producing a print edition of a "Harry Potter Lexicon."

For some time there has been an online Lexicon, which has been criticized for both using and linking to large chunks of Rowling writing. Many of the critics feel that the online Lexicon goes beyond the bounds of fair use. In an attempt to avoid this, van der Ark rewrote, cited, and reduced the use of original material. He claims to have "received assurances from several copyright and intellectual property experts that the book we were creating was legal."

Except now there's a lawsuit. Warner is suing the Lexicon's intended publisher in an effort to enjoin the book as a violation of both copyright and trademark protections. The book's author and publisher are vowing to fight, noting that Rowling doesn't have "the right to completely control anything written about the Harry Potter world."

Intuitively I'd tend to agree with that assertion, but IANAL and it's not at all clear to me which way the judge is going to go in this case.

Comments (9) + TrackBacks (0) | Category: IP Markets and Monopolies


COMMENTS

1. Mera on February 12, 2008 8:55 PM writes...

Actually, it's not quite so clear-cut as that.

The Lexicon is an online encyclopedia of every location, person and event in Harry Potter, and is more or less a digest of book quotes and information pulled from the books. There's nothing wrong with running a Web site with all that info on it. It was publishing a book for money that got him on touchy ground.

He was planning on publishing it late last year when his publisher got--and ignored--several C&Ds from WB and Rowling. They took it to the courts. While he didn't publish the book as he said he would, he originally claimed that the book would be the entire web site, unedited, with only the encyclopedic contents and none of the original essays. It's only recently that he claimed the book was edited at all. (He may, in fact, be editing the book while the trial is going.)

In any case, it's complicated. While it's good to argue whether an author has the rights over encyclopedias published about their works, van der Ark and his publisher have been very dishonest. They have repeatedly changed the story over and over to make themselves look better, so it's hard to make a clear case for them.

Permalink to Comment

2. db on February 13, 2008 8:53 AM writes...

http://www.journalfen.net/community/fandom_wank/tag/this+is+the+wank+that+never+ends

Don't laugh; they've done their homework.

SVA and RDR have it coming.

He told fellow HP fans publishing a book like the Lexicon would be illegal.

The argument in favor of the Lexicon boils down to JKR giving the website a favorable nod, and SVA/RDR extrapolating that into a waiver of her copyright.

If the court rules in favor of RDR under fair use... I wouldn't agree with it, no, but it'd be better than ruling that JKR's knowledge and approval of a fan site constitutes a transferral/waiver/whatever of her rights to said fan.

To say nothing of using a death in the family to hold off legal proceedings... AFAIK the sales of foreign rights aren't usually a part of the grieving process.

Permalink to Comment

3. Jim Lai on February 14, 2008 3:06 PM writes...

Can someone create what is essentially a new work that talks about the old work? Generally, yes. That's how the entire field of literary scholarship continues to exist.

While Rowling's publisher can own the characters, etc. in the Harry Potter universe, they cannot own certain underlying facts, such as that there is a character named Harry Potter in books written by JK Rowling, who is a wizard, and so on. The strongest argument that the lexicon folks could make is that they are publishing facts about Rowling's books.

Where it gets troublesome is when you consider the derivative market for Rowling's work, specifically the market for encyclopedias of her universe in this instance. There are other "encyclopedia" books out there of other popular series. The Dragonriders of Pern (Anne McCaffrey) and The Dark Tower (Stephen King) are two examples that immediately spring to mind. But I believe that in those cases, the authors of the original books had some input into the creation of the books. In this case, what we have here is an independently created encyclopedia that may compete with a future "official" one that Rowling's publishers may want to put out. So long as it stays online, no harm. But once it's on bookshelves, that's a different financial story.

Permalink to Comment

4. Cielle on February 16, 2008 12:48 AM writes...

I don’t speak legalese, but I wouldn’t attribute the lawsuit to JKR’s greed, but to her selfishness. She, who herself trolled fan-sites during the writing of the series, evidence of which shows up in her writings (now, that is stealing), decides to sue? She, who awarded the “Harry Potter Lexicon” a fan-site of the year award (or some such accolade) and blessed its value as a resource even to herself decides to sue? Would that I had the money to purchase ink and paper and print out the several copies of the lexicon Ms. Rowling is said to have “lying about” for convenience sake. Oh, the poor assistant whose job it was to link-and-print-and-link-and-print (before the court case put a stop to that internet function)… Isn’t that tantamount to “purchasing” the lexicon, except that the cost of these particular printed Harry Potter Lexicon(s) was paid to the likes of Office Max? ("Burn them! Quickly, before the discovery phase!")I thought writers wrote. I did not know they trolled fan fiction spotting out new ideas to put in their own books and taking advantage of the “un-copyrighted.” I’d say it’s high time to move on, Ms. Rowling, and prove that you can truly write. You can be sure there won’t be another lexicon online for your convenience; no one likes being sued for helping to promote your work and correct your dreadful mistakes. Whatever, I would love to see Vander Ark and Rowling settle out-of-court and produce something together. She certainly understands what a gift Mr. Vander Ark has produced for her and her fans. This is where I think Rowling ought to be very careful and rethink some things. I would buy the Vander Ark lexicon to aid in the discussion and literary critique of her books and if said lexicon were available to students in my writing course, well, more money for Rowling and her publishers. If she finally produces anything even remotely resembling his online lexicon I think her public's image of her will be damaged; it already is for me, though I continue to use her books in my classroom. I mean, let's use a little bit of common courtesy and sense. There's enough money to go around, and if you say that's not the issue, I beg to differ. I would be so flattered if someone took the initiative and energy to organize my own publications so meticulously online that even I, myself, could refer to them whilst writing the sequels... I would be so beyond flattered that I would pay for the maintenance of this website myself.

Permalink to Comment

5. Webseite eintragen on March 17, 2008 6:08 AM writes...

The Lexicon is an online encyclopedia of every location, person and event in Harry Potter, and is more or less a digest of book quotes and information pulled from the books. There's nothing wrong with running a Web site with all that info on it. It was publishing a book for money that got him on touchy ground.

He was planning on publishing it late last year when his publisher got--and ignored--several C&Ds from WB and Rowling. They took it to the courts. While he didn't publish the book as he said he would, he originally claimed that the book would be the entire web site, unedited, with only the encyclopedic contents and none of the original essays. It's only recently that he claimed the book was edited at all. (He may, in fact, be editing the book while the trial is going.)

In any case, it's complicated. While it's good to argue whether an author has the rights over encyclopedias published about their works, van der Ark and his publisher have been very dishonest. They have repeatedly changed the story over and over to make themselves look better, so it's hard to make a clear case for them.

Permalink to Comment

6. Kellie on April 14, 2008 11:31 AM writes...

To Cielle,

JK is not selfish and if she did borrow ideas from fan ficiton (which I doubt) it would have been a nod of appreciation to those super fans. Her books were well planned from the very beginning..she did not just make stuff up as she went. I am pretty sure that she has boxes and boxes of her notes that would prove that.

She has rights that need to be protected. She is also trying to protect the rights of the true fans. SVA has a website that was for true fans which JK supported until he tried to make money off of HER WORK which he compiled into a encyclopedia. If SVA wins, then all authors in the future will protect their stories so much that fan fiction and websites will be heavily monitored for copyright infringement. The only ones who would suffer are the fans.

JK has already made announcements that she herself would make an encyclopedia (although not anytime soon) and at least part of the proceeds would go to charity as does the proceeds from her other companion books. If SVA wins it will take away from those charities that would have benefitted from her own encyclopedia. The only one who profits from SVA's is himself and the publisher. Now who's really the selfish one?

Permalink to Comment

7. None of on April 14, 2008 4:41 PM writes...

"he tried to make money off of HER WORK"

It's not a zero-sum game.

"all authors in the future will..."

Where did this prognostication come from? One of those cheap Magic 8 Ball novelty toys? :P

"JK has already made announcements that she herself would make an encyclopedia (although not anytime soon)"

In other words, though the demand exists now she chose not to satisfy it now and a competitor moved in with an earlier offering. That sounds like fair play in business to me.

"part of the proceeds would go to charity"

Fascinating. The mentality of you pro-IP types is truly remarkable. It seems that you honestly believe this sort of stuff, despite the implications.

For example, suppose I opened a furniture store but donated a few dollars from every purchase to charity, and announced this fact. Suddenly, The Brick and Leon's and IKEA and the like are all evil scum because they compete with me and every sale they make will "take away from those charities"? And should be shut down? Hoo boy. So much for competition. Bye-bye market forces, hello monopolies. What fun!

Consider the market forces at work here. People who want those charities to get money can obviously go ahead and buy JKR's version ... if and when she gets around to publishing it, of course.

The stupidest thing here is that this isn't even a copyright dispute. I don't think SVA is copying anything verbatim, but rather is writing secondary analysis of primary sources. Even where that sort of thing does quote verbatim it's widely acknowledged to be fair use.

It's more of a trademark dispute, but as long as SVA's encyclopedia doesn't deceive buyers into thinking it's JKR's, or that the money goes to charity (unless it actually does; nothing stops SVA from also donating some sales money to charity), then there's no trademark infringement either.

From an earlier comment, "The Lexicon is an online encyclopedia of every location, person and event in Harry Potter, and is more or less a digest of book quotes and information pulled from the books."

Quoting in commentary is fair use, and mere "information" cannot be copyrighted.

Permalink to Comment

8. Hoover on April 18, 2008 2:33 PM writes...

Kellie wrote: "Her books were well planned from the very beginning..she did not just make stuff up as she went. I am pretty sure that she has boxes and boxes of her notes that would prove that."

Um, not quite. Ms. Rowling has admitted that she did not plan out her books from the beginning and used the Lexicon online to flesh out idea and do fact checking. This is about her greed and selfishness just like the decision to "break-up" the final book into two movies because two movies means twice the revenue even though one movie could easily cover the sophomoric story.

As to those who claim that SVA has been less than truthful, Ms. Rowling has been equally loose with the facts. Comments such as she "invented" 90% of the spells in her books is laughable and is akin to Al Gore saying he "invented" the internet. I am sorry Sci-Fi including wizards and magicians and spells was around long before Ms. Rowling, though she acts as if she create the genre. All she did was give the types of spells used in other literary works a different name and then says she invented it and claims that SVA is "stealing" her work when in fact she stole other's work.

What this whole case comes down to in Ms. Rowling is asking the court to find natural rights in her works which would transcend American copyright law and put us on track with most of Europe.

Permalink to Comment

9. Honesty Blaze on March 18, 2010 11:37 PM writes...

Hoover has the essential essence of the game. Greed. The reason Rowliing is so manic about copyright is because she and her team have plagiarized the work of others to the max. Attack is the best form of defence, at least until you are found out.

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