Tuesday, April 15, 2008

Is It Fair Use or Infringement?

Yesterday, a U.S. District courtroom in Manhattan saw the opening of an important case and an unusual celebrity sighting.

J.K. Rowling, author of the Harry Potter books, declined the opportunity to simply give a deposition in Great Britain, choosing instead to come to New York to testify in her case against a fan who wants to publish a Harry Potter Lexicon based on her popular series of books.

This was Rowling's first time as a witness in a trial and only the third time she has ever sued for copyright infringement.

According to Variety:

Vander Ark, 50, has said he joined an adult online discussion group devoted to the "Harry Potter" books in 1999 before launching his own website as a hobby a year later. The website attracts about 1.5 million page views per month and contributions from people all over the world.

Ms. Rowling has previously encouraged her fans who have created Harry Potter sites on the Internet. She actually gave Mr. Vander Ark an award for his Lexicon site.

However, when RDR Books of Muskegon, Michigan announced plans to do a print version of the Lexicon, she objected . . . and slapped an injunction of them. Ms. Rowling and her partner in the suit, Warner Bros Studio, argue that Mr. Vander Ark is now attempting to use her intellectual property for his commercial gain.

The London Times said in a story in March:

Accusing the unauthorised book of lifting 2,034 of its 2,437 entries straight from her work, Rowling condemned the Lexicon as “a Harry Potter ‘rip-off’ . . . [that] interferes with my rights as a creator and copyright holder”.

Ms. Rowling has indicated that she planned to write her own Harry Potter encyclopedia. She argues that Mr. Vander Ark's Lexicon both infringes upon her copyright and would harm sales of her planned reference book.

Vander Ark and his publisher claim that the Lexicon does not infringe upon Ms. Rowling's copyright because he offers original content. They further claim that the "fair use" provision of the copyright law permits criticism and review.

U.S. District Judge Robert Patterson, Jr. of the Southern District of New York must decide in the non-jury trial if Vander Ark's use of Rowling's material falls within the parameters of research, commentary and criticism.

According to The New York Times:

Legal analysts say the outcome of the case could set a crucial precedent in the literary world, one that determines the extent to which fans can use and build upon the works of their favorite authors.

I'll confess I was a little surprised to learn that Anthony Falzone, the executive director of Stanford Law School's Fair Use Project, was acting as one of RDR's attorneys. Over the last three years, I've read and been impressed by a number of interviews and comments by Falzone.

The New York Times quoted Falzone saying,

"For hundreds of years, everybody has agreed that folks are free to write companion guides . . . This is the first time that anybody has argued seriously that folks don’t have the right to do that.”

Falzone's presence in the courtroom makes me wonder if the outcome could possibly be different from what I had anticipated.

The trial is expected to last a week. Stay tuned . . .

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