Wednesday, April 16, 2008

More On The Rowling Case

I belong to a number of writers' loops. Yesterday on one of them, we had a lively discussion on the ongoing case of J.K. Rowling and Warner Brothers versus RDR Books.

In case you haven't heard, the writer of the Harry Potter books and the Hollywood studio that filmed the books are suing the Michigan publisher who wants to release The Harry Potter Lexicon. RDR Books, the defendant, claims that The Lexicon is permitted under "fair use."

Ms. Rowling and her co-plaintiff argues that The Lexicon is a commercial venture that substantially copies her work and will impact the potential market for an encyclopedia she plans to write one day.

All kinds of writers weighed in with opinions on our open loop. At one end of the continuum were those who firmly believed that an author's copyright should be inviolate. At the opposite end of the continuum were those who thought Rowling was being a greedy pig. Between those two points were opinions scattered up and down the spectrum.

A caveat here. I am not an attorney and am making no attempt to practice law. I am merely exploring issues that may arise in the Rowling case.

As I said earlier, at issue is the "fair use" doctrine of the U.S. copyright law. According to Copyright Act of 1976, the fair use doctrine permits limited use of copyrighted material without obtaining permission from the copyright owner "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research . . ."

The fair use provision has a four-factor test used to determine whether such use of a work qualifies as fair use. The four factors are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

In the more than three decades since 1976, case law and the appeals courts have expanded and refined the four-part balancing test. One of the most important cases was 1994's Campbell v. Acuff-Rose Music.

That case involved the rap music group 2 Live Crew, which wrote a parody of Roy Orbison's tune, "Oh, Pretty Woman." Acuff-Rose Music sued, and the case went all the way to the Supreme Court.

The Supreme Court found that "all [four parts of the balancing test] are to be explored, and the results weighed together, in light of the purposes of copyright."

The Court also said:

Under the first of the four . . . factors, "the purpose and . . . character of the use, including whether such use is of a commercial nature . . .," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

In other words, the new work transformed the original Orbison song, creating a parody, which was a different purpose from that of the original tune. That new purpose justifies the work under fair use so 2 Live Crew won the case.

The courts may be expanding the concept of transformation. Jonathan Band, a Yale-educated lawyer specializing in intellectual property, argued four months ago in an article titled "Educational Fair Use Today" here that, even when a work is derivative, "repurposing" it or "or placing it in a new context may be sufficient to render a use transformative."

I suspect it will be this transformative issue on which the case will hinge. Is The Lexicon a repurposed book? Does the "ready reference" it offers on the Potter books create a need for this book to be available to the public?

And I wonder whether the fact that Rowling herself has produced "reference work" supplements to the books will enter into that argument. Remember: back in 2001 Rowling published two paperback reference books on her fantastic creatures and how to play Quidditch.

This is an important case. If you are leaning heavily in Rowling's favor, check out this New York Times article from February here, which takes the opposite view.

And stay tuned . . .

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