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Fair use v. Falling in line with Harry Potter

There’s a terrific article in the NYT about Lessig’s Fair Use Project’s involvement in defending a small publisher who brought out a Harry Potter encyclopedia. When the publisher went from Web to print, and from free to for-money, the Potter folks sued, saying it’s unfair. The author, Joe Nocera, says:

For, as Mr. Lessig points out, anybody who owns a computer can now create content that is based on someone else’s creation. Indeed, we do all the time, by posting content on Facebook, on YouTube, everywhere on the Internet. If the creation of that content is deemed to be a violation of copyright, “then we have a whole generation of criminals,” said Mr. Lessig — which is terribly corrosive to society. But if it is fair use, as it ought to be, then it becomes something quite healthy — new forms of free expression and creativity.

He concludes on quite an optimistic note. [Tags: ]

15 Responses to “Fair use v. Falling in line with Harry Potter”

  1. Since when is making money part of the creative process? We’re told that photographers et al should give ‘freely’ of their products to the commons because after all, creativity is not about making money or getting rich.

    Yet here is a case of a person wanting to profit from a derivative work, and the Fair Use project is all for their side–let them make a profit the group states.

    This comes across as hypocritical. So is how you’ve framed the discussion. Rowlings et al didn’t say such work was ‘unfair’. They stated that the work was not covered under the fair use provision of copyright law.

    Speaking of which, whether this work would be covered under fair use would apply regardless of length of copyright term. But remember: fair use is focused, and has almost always been focused, at scholastic use, not commercial use.

  2. Interesting article, but it fails to mention this all started when RDR books threatened to sue Warner Bros. over the inclusion of a Harry Potter in one of their DVD’s.

  3. This article is misguided and the writer clearly did not do his research. It so happens that there is nothing original at all in the book RDR intends to publish. None of the things credited to the website that would make it original (essays, mistakes) are part of the book, which is basically a list of characters, places and objects mentioned in the Potter books and their definition. In other words, contents already available in the Potter books being sold for someone other than their creator, J.K. Rowling. From the words of the “author” himself, Steve Vander Ark:

    “All the information in the Harry Potter Lexicon comes from J. K. Rowling, either in the novels, the ‘schoolbooks’, from her interviews, or from material which she developed or wrote herself.”

    If that’s not copyright infringement, I don’t know what is.

  4. RDR Books also keeps changing their story on what the book is. they also listed about 6 books in a recent filing stating they were proof it is legal, when all of those books were about listing places in harry potter where she drew from mytholagy and history. those encylopedias include alot of research outside the book, and are counted legitimate under fair use because the copyrighted material used makes up a very small part of the text, the rest being exploration with outside sources what may have inspired the elements in jo’s books. as such, it counts as a actual acemedic work of commentary, which jk rowling is a huge supporter of.

    Also, RDR Books is a vanity press created by roger rapoport because no one else would publish his books, which make up a vast ammount of the 60+ books they claim to publish. this is about RDR Books trying to profit offf jo’s work without doing any work. they actuall contacted Steve Vander ark, asking for the rights, it wasent the other way around.

  5. Thanks for the factual corrections and supplements. I was relying on the article I was recommending, which seems to have at best over-simplified the case, and perhaps misrepresented it.

  6. You are welcome, David. Most of the articles I’ve seen on the subject focus on the “David vs. Goliath” and forget to see what the Lexicon really is about. The Stanford Fair Use Project, I’m sure they are concerned about the “choke” on creativity, and rightfully so, but this simply should not be a case for them, because there is no creativity involved in the Lexicon – except for the essays, which will not be in the book. In fact, if you go to Justia and look at the typeset of the book RDR intends to publish, it is just an A to Z index and not much more.

    And by the way, the Steve Vander Ark comment I just quoted comes from RDR’s response to Warner’s sue, so you can see just how poor of a case they are making for themselves.

  7. We DO have an entire generation of criminals. But they a’n’t neither who the content industry thinks they are.

  8. I see this differently. I don’t think “derivative work” should be an exclusive right to someone who has created an extraordinary cultural artifact. Stories that inspire people, engage people, and become the talk of the day are not a product line that is wholly owned by one person or one corporation.

    People should be allowed to publish books about other books. Particularly books that have had the kind of impact these have.

    The fact that it’s not free doesn’t alter the argument for me.

  9. […] an interesting series of comments can be found here. It sounds like a tangle of lawsuits, but I still think people should be allowed to write books […]

  10. Barbara, there are plenty of books about Harry Potter that do not infringe copyright because, even though they are derivative, most of their content is original. Commentary is original. Speculation is also original.

    But the fact that RDR is poorly trying to hide is that the Lexicon has NO original content at all. They are simply re-organizing copyrighted information and selling it as if it belonged to them.

  11. If it’s all content already written and merely harvested and rearranged, that’s a problem. But if it’s actually an index to content… that would be different. You might argue an index adds nothing new, but it enables discovery in a different way. Google makes a profit by indexing other people’s content – and it’s very useful, even though they add nothing new and, in fact, cache a copy of everything.

    I know – that’s probably different than this book, but I still have problems with “these are my characters and ideas; now fall in line.” Admittedly, Rowling and her lawyers may have been quoted out of context, but if there’s any truth to the attitude, I think it’s problematic.

  12. […] article on the New York Times, which I got to thanks to Joho, put me to think about the never ending question of Copyright laws and overall intellectual […]

  13. I am really unsure of whose side I am on. There is alot of talk about what is in the book. If it really is just a list of spells, characters etc. then i would have to agree that it is a violation of copyright laws, however, it there is any commentary, thoughts or reviews then i would say it was more like a really long book review.

    i dont think it is fair for Rowling to use the excuse that she was thinking of creating an encyclopedia and donnating the profits to charity because first of all there is no evidence she was writting or even thinking about writting a Harry Potter encyclopedia. I think that was something made up to make her seem like the good guy.

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