9.11.08 HARRY POTTER AND THE ORDER OF THE JUDGE

This article original ran in the 9.11.08 issue of Metroland.

A federal judge in Manhattan ruled on Monday that a 450-page A-Z encyclopedia of Harry Potter minutiae infringed on J.K. Rowling’s and Warner Brothers’ copyrights in the Harry Potter books and films. It’s a difficult decision that cuts against the recent trend of expanding the concept of fair use of copyrighted works. Hopefully, the decision will be appealed so the appellate court can take another look and reverse what is basically a victory for the uber-ownership of information.

Basically, Steven Vander Ark, “a former library media specialist at a middle school
in Michigan” had been compiling for years a lexicon of Harry Potter facts online; the website was popular among Harry Potter fans; J.K. Rowling herself said that she referred to the site when she need to get the facts straight on her characters. About a year ago Vander Ark got a book deal. Suddenly Rowling wasn’t such a big fan anymore, and in came the lawyers.

The court held an evidentiary hearing during the Spring. Rowling wept on the witness stand, saying that the mere existence of Vander Ark’s book had destroyed her ability to write, raising the possibility of a second career acting in bad afternoon soap operas. Vander Ark similarly broke down on the stand, saying the lawsuit had caused him to fall into disrepute with the Harry Potter community, suggesting that the rough-and-tumble world of a middle school media specialist had left him, as it has so many others, an emotional wreck.

Fair use cases have increasingly turned on whether the new work, here Vander Ark’s book, is transformational of the first work. Here the judge ruled that the encyclopedia was indeed transformational, just not transformational enough. The 62 page decision contains endless examples of “similarities” between Vander Ark’s book and the Harry Potter series, a painful thing to read, and when you think about it, kind of silly. It’s an encyclopedia, for crying out loud; it shouldn’t be a huge surprise to discover that it contains similarities to the thing that it’s, well, encyclopedia-ing. But the judge was bothered by Vander Ark’s verbatim copying, which he seemed to think was excessive, leading to the bothersome conclusion that had Vander Ark jumped through a bunch of needless hoops and had simply done more paraphrasing, he would have been alright.

The judge also put, in my view, way too much emphasis on the obvious facts that the Harry Potter books were fiction and that Vander Ark’s work was a profit-making endeavor in finding that there was no fair use of Rowling’s works. I think the judge also put too much stock in a couple aged decisions denying fair use in similar situations, one involving a Seinfeld trivia book and another involving a Twin Peaks fan book, both of which I think would be decided differently today given some more recent cases that have opened up the concept of fair use to be more consistent with today’s exploding remix culture.

In short, the judge missed the forest for the trees, over-thinking and over-analyzing a simple matter that Vander Ark’s encyclopedia was a transformative work that did the Harry Potter series of books no harm at all; in fact the existence of the encyclopedia enhances the popularity of the iconic series.

It’s cases like this that contribute to the paralyzing uncertainty artists face when they have an opportunity to create something new out of fragments of our culture, out of already-copyrighted works. It’s certainly not surprising that Warner Brothers added its muscle to Rowling’s case, like she can’t afford platinum-coated counsel on her own. Warners, like all the other Big Media players, want to stomp out fair use in all its forms, so it can continue to charge us what economists call “monopoly rents” for every single use we might make of culture for whatever purpose. I mean, this is the company that still makes $2 million a year on its questionable copyright in the song “Happy Birthday.” And they say they’re “protecting the creator.” Pul-eeze.

And you can also smell the Big Media hubris in its reporting of the case: the headlines are proclaiming “Rowling Rules !” and “Lexicon Crushed!” like this was some kind of slam dunk that just got laughed out of court. Nothing could be further from the truth. It wouldn’t take 62 pages to decide an easy case. And the judge could have awarded Rowling damages of up to $150,000 per infringed work. She got the minimum, $750 per, for a total of $6750.

This case simply must be appealed; hopefully the appellate court will be able to take a step back, look at the big picture, pull some legal wizardry, and turn this thing around.