Harry Potter and the Order of the Fair Use Factors

(I apologize for my lame title. I tried though)

Happy Fair Use/Fair Dealing Week! Okay, I guess it was last week but it’s always a good time to talk about fair use and fair dealing! Stanford University has an awesome overview of fair use and the four factors that govern fair use . The interesting thing about fair use is that it can only truly be determined by a judge in court. If the owner of the original work (the copyright owner) doesn’t agree with how you’ve used their work, only a judge can rule if it follows fair use guidelines or not. It’s a case by case issue and is usually pretty subjective. Standford also provides some interesting overviews of some fair use cases over the years. The one I’d like to dive into today is the famous Harry Potter Lexicon case (Warner Brothers Entertainment vs RDR Books).

A little overview 

This Guardian article does a great job of giving a detailed summary of the case but I’ll do a little overview as well with some personal notes.

Back in 1999, a  Harry Potter (HP) fan by the name of Steven Vander Ark created an online fan site called the Harry Potter Lexicon. I remember using this lexicon when I was reading the books to refresh myself on certain characters or spells and when I was part of another Harry Potter fan club online, I would use the Lexicon quite often as a reference site. The HP Lexicon is quite comprehensive, has a large community, and now has 700+ pages.

In 2007, Vander Ark signed a book deal with RDR Books (a small press in Michigan) to publish a part of the Lexicon. This resulted in J.K. Rowling and Warner Brothers taking RDR books to court, and the judge ruled the Lexicon to be not fair use. This is the Stanford site’s summary on the case:

“Not a fair use. Although the creation of a Harry Potter encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), this transformative quality was not enough to justify a fair use defense. Important factors: An important factor in the court’s decision was the extensive verbatim use of text from the Harry Potter books. (Warner Bros. Entertainment, Inc. v. RDR Books, 575 F.Supp.2d 513 (S.D. N.Y. 2008).)”

However, in 2009 Vander Ark was allowed to publish a different version of his Lexicon that addressed some of Rowling’s grievances in court. It seems like he edited out direct passages from the original HP books and added more of his personal commentary on it.

My opinions

First a  question though… why was Warner Brothers involved in this? The Lexicon only deals with the HP books and not the movies. That’s one of the ways they differentiate themselves from the Harry Potter Wiki. I couldn’t really find an answer to this, so I’m guessing it’s because Warner Brothers has rights to the Harry Potter franchise as a whole so this case would affect them as well.

So how do I feel about this? As with most of the fair use cases, I have mixed feelings.

It bothers me that the Lexicon became an issue only when the Vander Ark decided to publish it into a book and try to make some money off it. In the Guardian article, it states that before the lawsuit, the site was continuously praised by Rowling herself and even her publishers sent the Lexicon thank you letters for the good work they were doing.  As soon as it was going to be a monetary thing, views changed. I think this was a little unfair for fans who love a work so much but also want to generate some income for the hard effort they put into their fan-work. The Lexicon isn’t going to take away any sales from the Harry Potter books themselves. In fact, I doubt anyone will even buy the Lexicon without buying or reading Harry Potter first.

Factor four of fair use looks at “the effect of the use upon the potential market”. It looks at whether the work “deprives the copyright owner of income or undermines a new or potential market for the copyrighted work.” I do not think the Lexicon will deprive Rowling of income. In fact, it directly contributes to her sales of more books! However, I do see that Rowling has every right to create her own encyclopedia/reference book of her own world. And I do understand that if Rowling was a smaller, less famous author…someone else creating a reference book could potentially take away from profits that could have been generated by the original creator themselves.

However, I appreciated that the court recognized the importance of reference and guide books – I personally could not have gotten through high school English without reference guides to Shakespeare and Ulysses. This was one of the statements after the Lexicon case:

“We are encouraged by the fact that the Court recognized that as a general matter authors do not have the right to stop the publication of reference guides and companion books about literary works.”

I’m glad the court allowed Vander Ark to publish a different version of the Lexicon. I think that was a fair ruling. It is still strange to me though that the site is allowed to stay up and remain unchanged. I think this is a weird double standard that remains when it comes to what’s allowed on the web and what’s allowed in print that. This issue will only become more and more pertinent as we continue publishing things that have originally been found online (such as webcomics and fanfiction).

Overall, I have mixed feelings about this case. It seems like Vander Ark still remains a huge Rowling and Harry Potter fan and the site is still running and providing fans with information as well, and that is still important!

3 Replies to “Harry Potter and the Order of the Fair Use Factors”

  1. I really love this post, Avvai! I like the little personal anecdotes you have at the beginning, and I think you do an awesome job at communicating both the details of case and then walking us through your opinion.

    You bring up a really good point about Warner Bros. and about Rowling’s own status and wealth as a famous author. I also really like that you tied in the double-standard for what’s allowed on the web versus in print. I kind of wish this had been incorporated a little earlier so you could have maybe expanded upon it, but I also totally get that this is a short post and you don’t have a lot of time to be exploring different things! Oh, and I really like the way you’ve formatted everything and used links. Thanks for the great read!

  2. This is a nice overview of the case interspersed with information and opinion. You have done a nice job of exploring the role of the market principle of fair dealing, rightly pointing out that the effect on the market is the copyright holder’s potential to profit off a similar creation. It is a little unclear to me, however, how, if this this is the issue, the concerns about verbatim passages from the book affect that outcome. The concerns about passages seems more in line with an argument that it could potentially reduce the sales of the books which is harder to understand/justify. In any case, a good read!

  3. Like Juan and Alex, I thought this was a really strong overview of the case and I agree that you did a great job of interweaving case information with your own perspective on the rulings. To me it does somewhat make sense that an author would not want someone to profit off making a companion piece for their work, since they could publish a similar work themselves (there was a similar case where wizards of the coast forced orcpub to scale back their resources because orcpub was asking for donations. WOC now sells similar services on their own app). but yeah! a really well articulated reflection that raised some really interesting points. well done!

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