J.K. Rowling's Dark Mark
Why she should lose her copyright lawsuit against the Harry Potter Lexicon.
As I wrote in October, over the last few years, the relationship between fan-written Web sites and the copyright owners of the content they draw on, if legally murky, has at least been peaceful. Once it dawned on media companies that fan sites are the kind of marketing that they usually pay hard cash for, they generally left the fans alone. But things turned sour in the fall, when the Harry Potter Lexicon Web site announced plans to publish a book version of its fan-written guide to the Potter world. Author J.K. Rowling and publisher Warner Brothers have sued the Lexicon for copyright infringement, exposing the big unanswered question: Are fan guides actually illegal?
As sympathetic as I am to Rowling and her rights as an author, the answer is no. There is a necessary and healthy line between what the initial author owns and what follow-on, or "secondary," authors get to do, and Rowling is running over that line like the Hogwarts Express. The creators of H.P. Lexicon may not be as creative as Rowling, but they are authors, too, and deserve a little respect from the law.
At issue are the giant fan-written guides like the H.P. Lexiconor the Lostpedia (for the show Lost) that try to collect all known information on topics like Harry's pet owl or the Dharma Initiative. Rowling takes the position that she, as the original author, has the right to block the publication of any such guide. In her words: "However much an individual claims to love somebody else's work, it does not become theirs to sell."
But Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be "recast, transformed, or adapted." But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing. The law has never allowed authors to exercise that much control over public discussion of their creations.
Unlike a Potter film or computer game, the authors of the Lexicon encyclopedia are not simply moving Potter to another medium. Their purpose, rather, is providing a reference guide with description and discussion, rather like a very long and detailed book review. Such guides have been around forever—centuries if you count the Bible, and more recently for complex works like the writings of Jorge Borges or The Lord of the Rings.As long as a guide does not copy the original work verbatim, it falls outside the category of "adaptation." And that's why it is largely unnecessary to discuss the more complex copyright doctrine of "fair use." Rowling's rights over the guide don't exist to begin with, so we don't need to go there.
This can be made clear by looking at a typical Lexiconentry, like this one for the "house elf," the character who does the scut work in the Potter universe. "House-elves," says the encyclopedia, "are small humanoid creatures who inhabit large houses belonging to wealthy Wizarding families."
For a fan to write this kind of entry, Rowling says, is to "take the author's hard work, re-organize their characters and plots, and sell them for their own commercial gain." But that's ridiculous. This and other entries aren't, as Rowling seems to suggest, anything like an abridgment of the originals. No one would read the Lexiconas a substitute for the Potter books; it is useless unless you've read the original, and that makes all the difference.