Lexicon Lawsuit News
Things are shaking with the lawyers for the Lexicon filing papers tonight and tomorrow for this hearing that's scheduled in March. I'll post what I have now, and the rest when it appears online.
A few days ago, a letter from Steve Vander Ark was quoted in a fanzine called Ansible.
Steve Vander Ark writes about the intended print edition of his Harry Potter Lexicon, which is currently delayed by legal action: see A245.
Despite the impression given at one stage by his publishers, this differs from the on-line Lexicon and its very free use of quotations -- probably beyond the bounds of fair use -- from J.K. Rowling's fiction.
'The book is not simply a cut and paste of the Lexicon website. The entries on the website provide much more detailed and complete information than the entries in the book. We took the information on the site and did a lot of editing, condensing, and in some cases complete rewriting. We avoided direct quotations whenever we could and clearly cited any quotations that we kept in.
In the case of entries from Rowling's own "encyclopedia"-style books, we intentionally left a lot out and urged readers in the introduction to the book to go buy her books for the complete information. A large portion of the Lexicon book text is available online as part of the filings from Warner Bros last week if you'd like to see what the final result looks like.
• While I was working on the Lexicon book, I received assurances from several copyright and intellectual property experts that the book we were creating was legal. Part of the problem all along has been the automatic assumption on the part of many that Rowling has the right to completely control anything written about the Harry Potter world. That's quite a huge power grab on her part and from everything I can tell, not legal. You and I are part of a subculture that lives off the creative work of others. We always try to do that in a legal and respectful way. However, if Rowling manages to extend her reach that far into our subculture, she will choke us off very quickly. And if she doesn't, what's to stop the next person from taking this legal precedent to even more dangerous places?' [21 Jan]
• Statistics: when I checked, the on-line Lexicon's 1500 words on Albus Dumbledore had about 300 words of direct quotation from Rowling (which seemed risky) and linked to a page with some 3000 words of quotes (which seemed suicidal). The same entry's book version, as seen in PDF proof, has less than 70 words of mostly fragmentary quotation.
And then today a strongly-worded article appeared in the New York Times.
Talking Business
A Tight Grip Can Choke Creativity
By JOE NOCERA
Published: February 9, 2008
On Friday, a lawyer named Anthony Falzone filed his side’s first big brief in the case of Warner Bros. Entertainment and J. K. Rowling v. RDR Books. Mr. Falzone is employed by Stanford Law School, where he heads up the Fair Use Project, which was founded several years ago by Lawrence Lessig, perhaps the law school’s best-known professor. Mr. Falzone and the other lawyers at the Fair Use Project are siding with the defendant, RDR Books, a small book publisher based in Muskegon, Mich. As you can see from the titans who have brought the suit, RDR Books needs all the legal firepower it can muster.
As you can probably also see, the case revolves around Harry Potter. J. K. Rowling, of course, is the creator of the Harry Potter series - “one of the most successful writers the world has ever known,” crowed Neil Blair of the Christopher Little Literary Agency, which represents her. Warner Brothers holds the license to the Harry Potter movies. Of the two plaintiffs, though, Ms. Rowling appears to be the one driving the litigation.
“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.
And what perfidious act of “hijacking” has RJR Books committed? It planned to publish a book by Steven Vander Ark, who maintains a fansite called the Harry Potter Lexicon. The Lexicon publishes Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines and does a thousand other things aimed at people who can’t get enough Harry Potter. It’s a Harry Potter encyclopedia for obsessive fans.
So long as the Lexicon was a free Web site, Ms. Rowling looked kindly upon it. But when Mr. Vander Ark tried to publish part of the Lexicon in book form - and (shudder!) to make a profit - Ms. Rowling put her foot down. She claims that she wants to publish her own encyclopedia someday and donate the proceeds to charity - and a competing book by Mr. Vander Ark would hurt the prospects for her own work.
But more than that, she is essentially claiming that the decision to publish - or even to allow - a Harry Potter encyclopedia is hers alone, since after all, the characters in her books came out of her head. They are her intellectual property. And in her view, no one else can use them without her permission.
“There have been a huge number of companion books that have been published,” Mr. Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But, he added: “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.”
They fall in line. There, in that one sentence, lies the reason Mr. Falzone and his colleagues have agreed to help represent RDR Books. And it’s why Mr. Lessig decided to start the Fair Use Project in the first place.
(snip)
About a decade ago, Mr. Lessig decided to fight back. His core belief is that copyright protection, as he put it to me, “was meant to foster creativity, not to stifle it” - yet that is how it is now being used. He fought the Mickey Mouse Preservation Act all the way to the Supreme Court (he lost). He founded Creative Commons, which is, in a sense, an alternative form of copyright, allowing creators to grant far more rights to others than the traditional copyright system. And he started the Fair Use Project to push back against copyright hogs like J. K. Rowling.
No one is saying that anyone can simply steal the work of others. But the law absolutely allows anyone to create something new based on someone else’s art. This is something the Internet has made dramatically easier - which is part of the reason we’re all so much more aware of copyright than we used to be. But it has long been true for writers, filmmakers and other artists. That’s what “fair use” means.
And that is what is being forgotten as copyright holders try to tighten their grip. Documentary-film makers feel this particularly acutely. My friend Alex Gibney, who directed the recent film “Taxi to the Dark Side,” about torture, tried to get Fox to license him a short clip from the television series “24” to illustrate a point one of his talking heads was making about how the show glamorized torture. Fox denied his request. Mr. Gibney, a fair-use absolutist, used it anyway - but many filmmakers would have backed away.
Which is also why the Harry Potter Lexicon case is so important. For decades, fair use has been thought to extend to the publication of companion books that build on the oeuvre of someone else - so long as the new work isn’t simply a rehash of the original. There are dozens of companion books to the Narnia chronicles, for instance, and the works of J. R. R. Tolkien.
What Ms. Rowling is saying, however, is that her control of Harry Potter is so all-encompassing that only she gets to decide the terms under which a companion book is allowable. She can talk all she wants about charities that will be deprived if she loses this case, but this is really a power grab. RDR Books should not have to “fall into line” to publish the Lexicon. Ms. Rowling is claiming a right that, if granted, will hurt us all.
And in a roundabout way, that gets us back to what the Internet has wrought. 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.
As it happens, Mr. Lessig made those last remarks in a lecture at Stanford last week. It was a kind of swan song, for he is leaving the field of copyright to tackle a new challenge: he will try to build a grass-roots movement to reduce the influence of money in politics. When I asked him if he was making this change because he was discouraged about the state of copyright, he sounded surprised by the question.
“I’m absolutely convinced now that this battle will be won on the right side,” he said. “I think there are now a lot of current leaders who can take the movement forward. When I started in this field, there were very few.”
I suspect he’s right, though it is likely to be a long struggle - which will involve a lot more legal cases like Warner Bros. Entertainment and J. K. Rowling v. RDR Books. And a lot of attitudes will need to change as well, starting with Ms. Rowling’s.
During my conversation with her representative, Mr. Blair, he pointed me to Ms. Rowling’s Web site, suggesting that would be the best place to find her response to the RDR Books case and the Harry Potter Lexicon. “You have our permission to quote from her Web site,” he said.
I already have that right, Mr. Blair. But thanks anyway.
A few days ago, a letter from Steve Vander Ark was quoted in a fanzine called Ansible.
Steve Vander Ark writes about the intended print edition of his Harry Potter Lexicon, which is currently delayed by legal action: see A245.
Despite the impression given at one stage by his publishers, this differs from the on-line Lexicon and its very free use of quotations -- probably beyond the bounds of fair use -- from J.K. Rowling's fiction.
'The book is not simply a cut and paste of the Lexicon website. The entries on the website provide much more detailed and complete information than the entries in the book. We took the information on the site and did a lot of editing, condensing, and in some cases complete rewriting. We avoided direct quotations whenever we could and clearly cited any quotations that we kept in.
In the case of entries from Rowling's own "encyclopedia"-style books, we intentionally left a lot out and urged readers in the introduction to the book to go buy her books for the complete information. A large portion of the Lexicon book text is available online as part of the filings from Warner Bros last week if you'd like to see what the final result looks like.
• While I was working on the Lexicon book, I received assurances from several copyright and intellectual property experts that the book we were creating was legal. Part of the problem all along has been the automatic assumption on the part of many that Rowling has the right to completely control anything written about the Harry Potter world. That's quite a huge power grab on her part and from everything I can tell, not legal. You and I are part of a subculture that lives off the creative work of others. We always try to do that in a legal and respectful way. However, if Rowling manages to extend her reach that far into our subculture, she will choke us off very quickly. And if she doesn't, what's to stop the next person from taking this legal precedent to even more dangerous places?' [21 Jan]
• Statistics: when I checked, the on-line Lexicon's 1500 words on Albus Dumbledore had about 300 words of direct quotation from Rowling (which seemed risky) and linked to a page with some 3000 words of quotes (which seemed suicidal). The same entry's book version, as seen in PDF proof, has less than 70 words of mostly fragmentary quotation.
And then today a strongly-worded article appeared in the New York Times.
Talking Business
A Tight Grip Can Choke Creativity
By JOE NOCERA
Published: February 9, 2008
On Friday, a lawyer named Anthony Falzone filed his side’s first big brief in the case of Warner Bros. Entertainment and J. K. Rowling v. RDR Books. Mr. Falzone is employed by Stanford Law School, where he heads up the Fair Use Project, which was founded several years ago by Lawrence Lessig, perhaps the law school’s best-known professor. Mr. Falzone and the other lawyers at the Fair Use Project are siding with the defendant, RDR Books, a small book publisher based in Muskegon, Mich. As you can see from the titans who have brought the suit, RDR Books needs all the legal firepower it can muster.
As you can probably also see, the case revolves around Harry Potter. J. K. Rowling, of course, is the creator of the Harry Potter series - “one of the most successful writers the world has ever known,” crowed Neil Blair of the Christopher Little Literary Agency, which represents her. Warner Brothers holds the license to the Harry Potter movies. Of the two plaintiffs, though, Ms. Rowling appears to be the one driving the litigation.
“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.
And what perfidious act of “hijacking” has RJR Books committed? It planned to publish a book by Steven Vander Ark, who maintains a fansite called the Harry Potter Lexicon. The Lexicon publishes Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines and does a thousand other things aimed at people who can’t get enough Harry Potter. It’s a Harry Potter encyclopedia for obsessive fans.
So long as the Lexicon was a free Web site, Ms. Rowling looked kindly upon it. But when Mr. Vander Ark tried to publish part of the Lexicon in book form - and (shudder!) to make a profit - Ms. Rowling put her foot down. She claims that she wants to publish her own encyclopedia someday and donate the proceeds to charity - and a competing book by Mr. Vander Ark would hurt the prospects for her own work.
But more than that, she is essentially claiming that the decision to publish - or even to allow - a Harry Potter encyclopedia is hers alone, since after all, the characters in her books came out of her head. They are her intellectual property. And in her view, no one else can use them without her permission.
“There have been a huge number of companion books that have been published,” Mr. Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But, he added: “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.”
They fall in line. There, in that one sentence, lies the reason Mr. Falzone and his colleagues have agreed to help represent RDR Books. And it’s why Mr. Lessig decided to start the Fair Use Project in the first place.
(snip)
About a decade ago, Mr. Lessig decided to fight back. His core belief is that copyright protection, as he put it to me, “was meant to foster creativity, not to stifle it” - yet that is how it is now being used. He fought the Mickey Mouse Preservation Act all the way to the Supreme Court (he lost). He founded Creative Commons, which is, in a sense, an alternative form of copyright, allowing creators to grant far more rights to others than the traditional copyright system. And he started the Fair Use Project to push back against copyright hogs like J. K. Rowling.
No one is saying that anyone can simply steal the work of others. But the law absolutely allows anyone to create something new based on someone else’s art. This is something the Internet has made dramatically easier - which is part of the reason we’re all so much more aware of copyright than we used to be. But it has long been true for writers, filmmakers and other artists. That’s what “fair use” means.
And that is what is being forgotten as copyright holders try to tighten their grip. Documentary-film makers feel this particularly acutely. My friend Alex Gibney, who directed the recent film “Taxi to the Dark Side,” about torture, tried to get Fox to license him a short clip from the television series “24” to illustrate a point one of his talking heads was making about how the show glamorized torture. Fox denied his request. Mr. Gibney, a fair-use absolutist, used it anyway - but many filmmakers would have backed away.
Which is also why the Harry Potter Lexicon case is so important. For decades, fair use has been thought to extend to the publication of companion books that build on the oeuvre of someone else - so long as the new work isn’t simply a rehash of the original. There are dozens of companion books to the Narnia chronicles, for instance, and the works of J. R. R. Tolkien.
What Ms. Rowling is saying, however, is that her control of Harry Potter is so all-encompassing that only she gets to decide the terms under which a companion book is allowable. She can talk all she wants about charities that will be deprived if she loses this case, but this is really a power grab. RDR Books should not have to “fall into line” to publish the Lexicon. Ms. Rowling is claiming a right that, if granted, will hurt us all.
And in a roundabout way, that gets us back to what the Internet has wrought. 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.
As it happens, Mr. Lessig made those last remarks in a lecture at Stanford last week. It was a kind of swan song, for he is leaving the field of copyright to tackle a new challenge: he will try to build a grass-roots movement to reduce the influence of money in politics. When I asked him if he was making this change because he was discouraged about the state of copyright, he sounded surprised by the question.
“I’m absolutely convinced now that this battle will be won on the right side,” he said. “I think there are now a lot of current leaders who can take the movement forward. When I started in this field, there were very few.”
I suspect he’s right, though it is likely to be a long struggle - which will involve a lot more legal cases like Warner Bros. Entertainment and J. K. Rowling v. RDR Books. And a lot of attitudes will need to change as well, starting with Ms. Rowling’s.
During my conversation with her representative, Mr. Blair, he pointed me to Ms. Rowling’s Web site, suggesting that would be the best place to find her response to the RDR Books case and the Harry Potter Lexicon. “You have our permission to quote from her Web site,” he said.
I already have that right, Mr. Blair. But thanks anyway.