The first rule of Harry Potter, you do not write about Harry Potter!
J.K. Rowling filed a copyright infringement suit against the publisher of a Harry Potter Compendium. I used to think that the worst British exports were, in this order, Rick Astley, The Royal Family (the worlds wealthiest welfare recipients), and the Spice Girls. Since the Spice Girls were at least hot, they’re off the list, and J.K. Rowling now tops the list.
J.K. Rowling and the maker of the “Harry Potter” films are suing a small publisher in Michigan over its plans to release a book version of a popular Web site dedicated to the boy wizard.
The suit, filed Wednesday by the author and Warner Bros. in federal court in Manhattan, claims that RDR Books will infringe on Rowling’s intellectual property rights if it goes ahead with its plan to publish the 400-page “Harry Potter Lexicon” on Nov. 28.
According to the publisher, the book contains much of the same material already found on http://www.hp-lexicon.org, a fan-created collection of essays and encyclopedic material on the Harry Potter universe, including lists of spells and potions found in the books, a catalog of magical creatures, and even a “who’s who in the wizarding world.”
In the past, Rowling has expressed support for such fan-driven efforts and has singled out the Harry Potter Lexicon Web site and its editor, Steve Vander Ark, for high praise.
But in the lawsuit — filed on Halloween — Rowling claimed that the print version of the Lexicon would improperly interfere with her plans to write her own definitive Harry Potter encyclopedia, one that would include new material not in the novels. (source)
They both seem to believe that Rowling’s case is doomed as the Compendium constitutes fair use. I agree with themin theory.. (Even if I didn’t, who am I to disagree with Patry on Copyright theory?) It smells like fair use to me. Unfortunately, sometimes we have to accept what is true rather than what we want to be true. Accordingly, I must reluctantly challenge both Patry and Coleman’s opinions. Rowling will (and sadly should) prevail, at least at the trial level.
Back in 1998, there was a very similar case: Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998). In that case, Beth Golub wrote The Seinfeld Aptitude Test, a collection of trivia questions testing the reader’s knowledge of the Seinfeld TV Show. That was clearly fair use too, but the Second Circuit decided to apply a quasi-trademark law view mixed with a bizarre and narrow view of the fair use doctrine. The Second Circuit felt that since Castle Rock might have one day expanded their works into the trivia book realm, that Golub was infringing on Castle Rock’s derivative use rights. This is clearly the theory upon which Rowling seeks to hang her legal hat.
Clear precedent or not, I strongly disagree with the holding in Castle Rock. Part of the court’s analysis was a rather poorly conceived notion that Golub did not infuse enough of her own creativity for the work to be considered transformative.
[D]efendants style The SAT as a work “decod[ing] the obsession with . . . and mystique that surround[s] `Seinfeld,'” by “critically restructur[ing] [Seinfeld’s mystique] into a system complete with varying levels of `mastery’ that relate the reader’s control of the show’s trivia to knowledge of and identification with their hero, Jerry Seinfeld.” Citing one of their own experts for the proposition that “[t]he television environment cannot speak for itself but must be spoken for and about,” defendants argue that “The SAT is a quintessential example of critical text of the TV environment . . . . expos[ing] all of the show’s nothingness to articulate its true motive forces and its social and moral dimensions.” (Quotation marks omitted). Castle Rock dismisses these arguments as post hoc rationalizations, claiming that had defendants been half as creative in creating The SAT as were their lawyers in crafting these arguments about transformation, defendants might have a colorable fair use claim.
Any transformative purpose possessed by The SAT is slight to non-existent. (emphasis added)
One of my students made a very astute observation when we discussed this case in class: That when you draft a multiple choice test, it takes a lot of creativity to write the wrong answers. As a professor who is drafting two long multiple choice exams, I shouted “yeah, ya think!!!!?”
All in all, I agree wholeheartedly with Patry and Coleman’s opinions on fair use. This case should fail, as the compendium seems to fall clearly within 17 U.S.C. § 107, “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship or research, is not an infringement of copyright.” Ty, Inc. v. Publications International Ltd., 292 F.3d 512 (7th Cir. 2002).
Patry goes so far as to say that he can’t see how the Harry Potter Compendium could be anything else but fair use. I agree, but I can’t see how the S.D.N.Y. can break with the binding precedent set byCastle Rock – as bad as that decision may be. Patry says “That work was of a very different sort though, and I doubt the Second Circuit would come out the same way today.” The Compendium and the S.A.T. might be “very different,” but not different enough that the cases can be distinguished. Accordingly, at the trial level, the S.D.N.Y. is bound by the irrational and incorrect precedent laid down in Castle Rock.
If I am going to go so far as to call the Second Circuit’s reasoning “irrational and incorrect,” I had better be able to back it up. I can if I rely on the Seventh Circuit’s opinion in Ty, Inc. v. Publications International Ltd, supra. In that case, Posner criticizes the Second Circuit’s evaluation of the Seinfeld Aptitude Test as follows:
There was evident complementarity: people who bought the book had to watch the show in order to pick up the answers to the questions in the book; no one would read the book in lieu of watching the show. When the book first appeared, the show’s producers requested free copies and distributed them as promotional material, 150 F.3d at 136; and the book’s blurb told readers to “open this book to satisfy your between-episode cravings.” Id. The court nevertheless held that the book wasn’t insulated from copyright liability by the doctrine of fair use. The holding seems to rest in part, and very dubiously we must say, on the court’s judgment that the book was frivolous. Id. at 146: “Undoubtedly, innumerable books could ‘expose’ the ‘nothingness’ or otherwise comment upon, criticize, educate the public about, or research Seinfeld and contemporary television culture. The [Seinfeld Aptitude Test], however, is not such a book.” But the fair-use doctrine is not intended to set up the courts as judges of the quality of expressive works. See Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 582-83. That would be an unreasonable burden to place on judges, as well as raising a First Amendment question.
Obviously the Seventh Circuit understands fair use better than the Second Circuit. Unfortunately for free expression (in the Harry Potter context), this case was brought in the Second — where Castle Rock still stands as “good” law. While I strongly disagree with the holding in Castle Rock, I simply can not see how the SDNY can be intellectually honest and yet distinguish the two cases. The SDNY must follow the Castle Rock precedent, no matter how poorly-reasoned, unless it can find a Supreme Court case that it is prepared to say has overruled Castle Rock.
If we veer off the legal analysis path for a moment, and simply look at the practical effect of this case, I return to the wisdom of William Patry:
Regardless of how the Harry Potter case comes out, the most depressing part is that it was brought at all. Fans will happily buy her book; the only effects of the suit, therefore are negative: if successful it will diminish the number of books available, and even if unsuccessful, it may cast a cloud over a fan base that has provided her and her licensees with great value. (source)