The Harry Potter Trial, Pt. 1

Steve Vander Ark is a middle-school librarian who fell in love with the Harry Potter series in the 1990s. He set up his own fansite, dedicated to cataloguing the errata contained in the many books, and small-press publisher, RDR, wishes to publish this information in print. But Rowling brought suit against the author and publisher, claiming infringement of copyright. The two are now at trial.

Rowling is quoted on the splash page of the Harry Potter Lexicon as having said, "This is such a great site... my natural home." The quote is taken from a message she posted on her own site. But Rowling now says that Vander Ark's Lexicon has "decimated [her] creative work," and drained her of "the will or the heart" to continue work on her own Encyclopedia, as well as a new novel. She called it "an act of betrayal" by Vander Ark and said the Lexicon, of which she had previously spoken so highly, was "sloppy, lazy, and it takes my work wholesale."

Vander Ark admitted he had concerns as to how copyrights would play into the decision to publish a print version of the site, but was talked into it by the publishing company. RDR Books insists the Lexicon is publishable because it constitutes fair use of copyrighted material and that, if Rowling wins the case, it will set a dangerous precedent which threatens to "eliminate an entire genre of literary supplements - third-party reference guides to fiction." They called the case her attempt to "claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction."

Rowling responded that the book "constitutes wholesale theft of 17 years of my hard work," and suggested that if RDR Books' position champions, "it will undoubtedly have a significant, negative impact on the freedoms enjoyed by genuine fans on the internet." She told a packed New York courtroom that Vander Ark had "simply taken my work and copied it."

This is not the first fan "encyclopedia" Vander Ark has written; in 1990, his The Complete Encyclopedia of Star Trek The Next Generation - Season One, was published. [An aside: "Compleat" is, in fact, an Olde English spelling of the word.]

The US Government's definition of "copyright infringement" includes "copyrighted work... made into derivative work without the permission of the copyright holder." However, Warner Brothers holds the copyright to the Harry Potter franchise, so it's interesting that they did not file this lawsuit.

Technically, 3^rd-party encyclopedias are a nebulous, gray area; it largely depends on whether or not the 3^rd-party has the permission of the copyright holder. But, as I noted, Rowling is not the holder of the copyright, so the trial is really more about creators' rights than copyrights - again, a very complicated matter, as much of entertainment law is. Basically, does the original creator have rights that supersede those of others'?

I do not think the verdict in this case will dramatically affect fansites or fan-fiction, in general; more specifically, it will set a precedent for work-for-hire based on other creators' work. And this could be very bad for Warner Brothers, which - I have to assume - is why they didn't bring this case, themselves. In effect, RDR Books' position in this matter is solid: Rowling is seeking to monopolize how her work is handled, even though she does not hold the copyright to her own creation.

I am personally upset by this case because The Weirding does so much of this "derivative work" (though I have been very careful to secure permission from the creators/copyright holders, whenever possible) in the RPG section - not to mention that one of the main reasons I chose to create my own site and publish online is because I am such a staunch advocate of creators' rights. Technically, Rowling has no case here, legally; morally, Rowling is the creator of the work and should have a sort-of "first-response" when it comes to any project based on her creation - often called a "right of first-refusal."

The caveat here is that Vander Ark was not commissioned to write this book; he has invested his time and effort into doing so over the last nine years, as a fan. RDR Books simply wants to package and distribute the product in print form. And Rowling herself admitted she uses the Lexicon as a reference! In this matter, a compromise could easily be made - especially since Rowling insists the case is not about money (she claims she intends to donate the proceeds of her own, unfinished, encyclopedia to charity) - with Rowling signing-on to co-author.

The simple fact of the matter here is that Rowling has no legal ground on which to stand and though I as a creator, as I'm sure most other creators do as well, agree with the sentiment, the details are pretty muddy: if you aren't doing this for the money, if you are doing this just to protect your work, then why would you treat such an ardent fan so shabbily? You acknowledge the Lexicon as "a great site" and admit to using it as a reference, then get into court and call it "lazy" and "sloppy" - which is it!?

I mean, for all the hours I've put into developing, playtesting, writing, and coding supplemental material for previously-published RPGs - RPGs still under copyright (which I freely admit, fully credit, and in no way seek to infringe upon), though no longer in-print - of course I want to be compensated for my time and effort in some small way. I think publishing it online with advertising is perfectly acceptable, though I agree that I would never publish it in print form without the copyright holder's express permission - and would absolutely love the creator's input, if not collaboration! But if one of these copyright holders lifted my online work and published it as their own, I would definitely file against them for compensation and accreditation!

These sorts of fan-fiction references have been published for years, and if Rowling wants to change the laws, then she should have a better reason than simply wanting to keep her future options open. The entire case would be different if Warner Brothers had consigned the work without giving her right to first-refusal, but that is not the case. And WB knows better than to challenge this time-honored tradition of publishing and fiction; it's much easier for them to buy RDR Books, outright, along with the rights to the book, etc., after it becomes a hit.

Either way, the Internet is once again changing the way the world works.

© C Harris Lynn, 2008