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The Harry Potter Legal Saga : To Whom Do the Characters Truly Belong?

By Andis Kaulins

We have been in England and Scotland for several weeks, including a visit to Alnwick (pronounced "Anick" in England), the location inter alia of the Alnwick Garden and the Alnwick Castle, a Harry Potter film location.

Speaking of Harry Potter, the current issue of Law@Stanford writes:

""POTTER TRIAL: ON LAST DAY, DEFENSE OUTSHINES ROWLING"
The Harry Potter Lexicon trial, in which the law school's Fair Use Project (FUP) defended a book publisher against a copyright lawsuit brought by J.K. Rowling and Warner Bros., was covered by the "New York Times," "Associated Press," "CNN," and many others. The "Wall Street Journal" "blogged" the trial, including FUP Executive Director Anthony Falzone's closing arguments, on its law blog. [Subscription may be required.]"

We posted recently at Literary Pundit about that J.K. Rowling copyright case, a posting which engendered the following comment:

"Macklin said...

When Steven Vander Ark's publisher, RDR Books, told him it was okay to publish a printed version of Vander Ark's Harry Potter Lexicon Web site, which is largely derived from work by Harry Potter author J.K. Rowling, Vander Ark accepted that without further question and proceeded with the project. That cavalier attitude is no surprise when one considers he had been trying to market this idea to two other publishers.

When did it become okay to lift someone else's copyrighted material and present it as one's own? That's why, ?in the name of scholastic pursuit?, I've made a copy of Vander Ark's Web site to use as my own Web site. Oh, it's okay. I've changed the name of the site and reorganized it a little. My version is called Harry Potter's Maxicon. Different enough, right?

Http://www.maxicon.org"

Here is what we replied to that comment:

"Please note that I use the term "Harry Potter" in this posting and that it is completely legal for me to do so. That already reveals to us an important legal principle.

J.K. Rowling makes a significant error in thinking that her characters "belong" to her only, as she has allegedly stated.

They belonged solely to her only as long as she kept them private and unpublished.

Once she published them - and for magnificent profit at that - the characters entered society. People buy her books, if you will, to enter "her" previously private fantasy world. She reveals her private world and they pay for it - it is a strict economic trade-off. Once they have read her books, those characters become a part of their lives too, and copyright law can not change that fact.

If, for example, I were to write a book on the influence of the Harry Potter books and the characters in them on my life, there is nothing that J.K. Rowling could do to stop it. It is my life and if she has published books that I have read and that have had an influence on me, I can write about them, mentioning characters and episodes in those books that were of importance to me. This would be called a "transformative" use of any of J.K. Rowling's materials.

Publications such as compilations, lexicons, encyclopedias, etc. are other means by which people deal with materials to which they and others have been exposed and which have had a significant impact on them or others. Without such (legally) transformative reference materials, our fiction and non-fiction world would be a T.S. Eliot wasteland. Literature lives on not only because it is read, but because it is discussed, cited, mentioned, referred to, compiled, abstracted, etc. in myriad forms.

In my opinion, Rowling and many other copyright and patent holders have a confused sense of our copyright and patent laws, thinking that these laws give them absolute control over their creations.

No one denies that it would be a flagrant copyright violation to copy a Harry Potter novel and sell it as "pirate" ware or under another author's name. But that is not the issue here.

Rather, Rowling is claiming that only SHE has the right to put out a lexicon about her books, from her point of view.

In my opinion, the law must resist this kind of control over human thought at every cost. No one prohibits Rowling from turning out her own lexicon, but she should not be allowed to prohibit others from doing so.

In the old Soviet Union, there was only one kind of truth, the kind found in Pravda. In J.K. Rowling's world, apparently only her own lexicon would be the whole truth and nothing but the truth.

Sorry, but that is not a world that I want, and that is not a world envisioned by the copyright laws."

Full post as published by LawPundit on May 04, 2008 (boomark / email).