Since March of 2000, the Harry Potter series by J.K. Rowling has been embroiled in several high profile plagiarism cases. The litigations include a Pennsylvanian author, a 50-year- old publication in Virginia and a Michigan librarian.
At issue is the Fair Use Doctrine which permits a limited amount of copyrighted material to be used in other works. Generally a Fair Use case is analyzed, guided or decided on any one of the four following criteria.
1) The purpose and character of the use, including whether such use is of 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.
4) The effect of the use upon the potential market for, or value of, the copyrighted work (107).
J.K. Rowling and Warner Brothers demand complete control of the Harry Potter image. Any likeness of Harry Potter not vetted by the Christopher Little Literary Agency is usually dealt with severity. For example, A United States Army material command periodical published a cartoon that featured a boy with black hair and round glasses, called Topper who attended the Mogmarts School of Magic. Attorneys for J.K. Rowling investigated the publishers at Fort Belvoir, Virginia for likely copyright violation. After some deliberation, the Army decided not to use the likeness of Harry Potter in future publications (Alvarez 2).
In a court room case, J.K. Rowling was accused of plagiarism by Nancy Stouffer, a writer from Pennsylvania. Stouffer had published The Legend of Rah and The Muggles and Larry Potter and His Best Friend Lilly. Stouffer sued J.K. Rowling, Time Warner and Scholastic Inc. for intellectual property rights violation, contending that she owned the trademark on Muggles and nimbus. In U.S. District Court, J.K. Rowling, Scholastic and Warner Brothers countered sued stating that there was no breach of copyright or trademark. In 2002, the Southern District of New York ruled that Stouffer lied to the court and tainted her documents to support her copyright claim. She was fined $30,000 and ordered to pay part of the plaintiff’s costs (BBC News).
A more recent case involved a librarian, Steven Vander Ark, who is a passionate Harry Potter devotee and created a website called The Harry Potter Lexicon, an online encyclopedia and reference guide to the novels. In 2007, an independent book publisher RDR Books in Muskegon, Michigan contacted Ark about the possibility of publishing a Harry Potter encyclopedia based on some of the materials from The Harry Potter Lexicon website. Ark agreed after he was assured by RDR Books he would not violate any copyright laws (Siskind 291). Rowling and Time Warner Inc.’s Warner Brothers became concerned about the upcoming undertaking by RDR Books and sued for copyright violation. It was a complicated decision by Judge Robert P. Patterson Jr. that came five months after the trial. The 68- page ruling in the Federal District Court of Manhattan blocked the publication of The Harry Potter Lexicon by RDR Books. The court ordered RDR Books to pay $6,750 in damages to the plaintiffs (Eligon).
These significant Fair Use altercations with the J.K. Rowling’s empire are not unexpected. She has toiled at her craft for 17 years and is expected to protect her creative and intellectual property. Also it’s predictable that Rowling’s legal team would engage in these judicial activities since they have a billion dollar investment to defend. But why did Rowling use The Harry Potter Lexicon for her research and award The Harry Potter Lexicon in 2004 a fan site award (Rich)? The online Lexicon used extensive portions of Harry Potter novels without permission from Warner Brother or Rowling, and yet these corporations permitted The Harry Potter Lexicon to continue. This is most likely because of the 1.5- million to 2- million readers a month benefiting her indirectly and shutting it down would have alienated readers. The Rowling empire did not become alarmed until RDR Books proceeded to move forward in publishing The Harry Potter Lexicon for $24.95 and financial panic invaded the halls of Warner Brothers (Hartocollis).
In the Nancy Stouffer case, J.K. Rowling won the legal argument, however Rowling was handed an academic rebuke by Dr. Graeme Morton, of Edinburg University describing Rowling’s work as very minor instances of inadvertent plagiarism (Johnston 1). And in the U.S. Army case, it seems plausible that the monthly magazine would have passed the Four Factor Test of the Fair Use Doctrine, but they lacked the time or courage to tangle with Rowling’s legal squadron.
The J.K. Rowling cases are important. They send multi level tremors through the legal, academic and creative disciples. Anthony Falzone of the Fair Use Project felt that RDR vs. Rowling was so important that he filed a brief defending RDR Books. Mr. Falzone of Stanford University is following the lead of Lawrence Lessig, the founder of the Fair Use Project, who fought the Mickey Mouse Preservation Act, which benefited the corporate copyright holders, preserving billons dollars of profits for the Walt Disney Company (Nocera C1),
As a committed media professional, I have always abided by copyright laws and The Fair Use Doctrine. It is essential that we respect each other’s works and seek permission to obtain rights of usage. But it is worrisome is that the small publisher, author or journalist must create novels, scripts and journals without the protection of the well heeled copyright lawyers.
The conundrum is while there is a desire to defend the writer J.K. Rowling even while she represents a multinational conglomerate keen on protecting profits at the expense of others. Rowling should continue to write and her millions of fans want to read her wonderful books and yet, while she claims to have been distraught over the publishing of The Harry Potter Lexicon saying “you lose the threads, you worry if you’ll ever be able to pick them up again”(Hartocollis), she also seemed to demonstrate hypocrisy by allowing an online lexicon to continue and yet engage in copyright confrontation with the same author when real money was at stake.
Works Cited
Alvarez , Lizette. "Arts, Briefly; Harry Potter Crosses Wands WIth the U.S. Army". The New York Times. 3/15/10
Eligon, John. "Rowlings Wins Lawsuit Against Potter Lexicon". The New York Times. 3/13/2010
Hartocollis, Anemona. "Rowling Testifies Against Lexicon Author". The New York Times. 3/12/10
Johnston, Ian. "Harry's Off The Hook". Evening News, Edinburgh April 13, 2000: 1.
Nocera, Joe. "A Tight Grip Can Choke Creativity". The New York Times Feb 9, 2008: C1.
RIch, Motoko. "Rowling To Testify In Trail Over Potter Lexicon". The New York Times. 3/13/2010
"Rowling wins Potter plagiarism case". BBC News. 3/15/10
Siskind, Shira. "CROSSING THE FAIR USE LINE: THE DEMISE AND REVIAL OF THE HARRY POTTER LEXICON AND ITS IMPLICATIONS FOR THE FAIR USE DOCTRINE IN THE REAL WORLD ON THE INTERNET". Cardozo Arts & Entertainment Law Journal 27 no1 2009: 291-311.
"107. Limitations on exclusive rights: Fair use". Cornell University Law School. 3/21/10
Interesting but incomplete overview of the case involving my book. Just for the record, copyright is copyright, regardless of whether the material is on the internet or printed on paper, so if there was no objection to the website, that same standard should have legally applied to the print version. Since some of the top Harry Potter websites make a LOT of money, the argument that a book makes a profit and is somehow different from a website makes no sense. Also, it's worth noting that the Lexicon book was published with no problem in January 2009. The judge's ruling clearly stated that books of that kind were to be encouraged and were not under the control of the author of the source material. Most people considering the case miss that point entirely, and that's the most important and precedent-setting result of the whole trial.
ReplyDeleteSteve Vander Ark
The Harry Potter Lexicon
Steve, I am glad you have commented on my paper, thanks to you for the update.
ReplyDeleteHenry