NYT Fouls Up Fair Use

I start most mornings, especially on weekends, by reading the New York Times. In my household, I get made fun of for reading the Business section first (that’s where the tech stories reside). Sometimes that can be a bad idea, like today, when I read the story on the Harry Potter lawsuit and began yelling almost immediately.

The facts: Warner Bros. and J.K. Rowling are suing RDR Books, which plans to publish its Harry Potter Lexicon in book format. Stanford’s Fair Use Project is representing RDR (which is based here in Michigan). The article is quite one-sided; it paints Rowling as a copyright absolutist and a bad actor. (Let’s overlook her generally tolerant attitude towards fan fiction and her stated intent to donate profits from her competing encyclopedia to charity, and that she objected to the Lexicon only once its author and RDR sought to profit from it.)

But what really annoys me is that the article’s author, Joe Nocera, makes an embarrassingly simple mistake of copyright law. He writes, “the law absolutely allows anyone to create something new based on someone else’s art.” No, Joe, sorry. That’s called a “derivative work,” and the Copyright Act gives that entitlement to the copyright owner, exclusively. (See 17 U.S.C. 106(2).) So, if you write a trivia book with questions and answers about the Harry Potter stories, you infringe Ms. Rowling’s copyright. (See Castle Rock Entertainment v. Carol Publishing Group.)

I argue that this is a bad idea on economic grounds in a piece coming out shortly. But there’s no question about the state of the law currently, and Nocera does a journalistic disservice by pretending otherwise. I’m all for the Fair Use Project – as a prof, I depend on fair use – but I think the fair use claim here is weak at best. (On the critical fourth factor under 17 U.S.C. 107, this is obviously usurping Rowling’s stated plans to develop her own encyclopedia, and Lucasfilm has made a nice pile of change by licensing Star Wars encyclopedias. Note, though, that Tim Wu disagrees.)

The permission-based culture of copyright is obnoxious, and often undesirable – the torture / “24″ episode Nocera cites is a great example (note that the filmmaker, Alex Gibney, sought permission from Fox, and was denied – similar to Wendy Gordon‘s view of fair use as a market failure). But it doesn’t help to misstate the law to suit one’s story, and it doesn’t help to focus fire on copyright holders such as Rowling, who have generally been supportive (or at least tolerant) of alternative uses of their characters (unlike Anne Rice, say). In copyright, as everywhere else, it’s best not to shoot your friends.

At least I’m awake now.

Edit (19 Feb. 2008): I changed 106(3) to 106(2) above; my typo indicated the distribution right, rather than the derivative works right as I intended. Props to Tom Sharpe for catching this!

12 Responses to “NYT Fouls Up Fair Use”

  1. First off, I am a bit intimidated for even leaving a comment. But I thought the subject was interesting enough for me to indulge myself. I read your comments correctly, the NYT article author was stating that you can borrow someone’s work under the law modify it and not compensate them for it. That doesn’t seem right at all. But I am wondering how could the defendant in the case against Rowling defend the suit in a way to deny or mitigate potential damages?

    I am pretty sure Rowling and Warner Bros. have a lock tight contract which expressly states they own the rights to all characters, lands, themes, etc. to the Harry Potter franchise and any derivative work which may result.

  2. Dan, thanks for reading! Please do leave comments – you raise interesting points, and this type of conversation is the whole goal of Info/Law and blogs generally.

    Rowling and Warner Bros. clearly have a carefully-drafted contract covering these issues. (It would be interesting to know if there is any “daylight” between the two parties in terms of the case and how to handle it.)

    To your question: copyright law gives a plaintiff the choice between actual and statutory damages. Actual damages here are almost certainly zero – the book isn’t out yet. (Of course, Rowling / WB want injunctive relief to make sure it stays that way!) But statutory damages could be considerable. 17 USC 504(c)(1) lets a copyright owner receive from $750 to $30,000 per work that’s infringed – see http://www.law.cornell.edu/uscode/17/usc_sec_17_00000504—-000-.html

    There are 7 Potter books, so that could add up: $5250 to 210,000. (And what happens if you throw in the movies, and other authorized Potter derivative works?) And if RDR were found to have infringed willfully, the numbers get really big: 504(c)(2) pushes damages to $150,000 for willful infringement.

    If, though, the Lexicon is fair use, then none of this matters: no damages, and any contractual assignment of rights between Rowling and WB is irrelevant, because the use of the Potter books / movies is immunized.

    This will be a fun case!

  3. Finally, someone who can shed some light on the subject regarding Nocera heavily pro-RDR opinion piece. People took what he said as ‘fact’ rather than the opinion it was, which upset a lot of fans. Loved the article, BTW.

    Incidentally, the things that Steve Vander Ark derived his HP info from are quite extensive and it adds up to a pretty penny:

    Books 1-7
    2 Companion Books
    JK Rowling’s Fansite
    The Harry Potter Trading Cards
    Harry Potter EA games [1-5]
    Harry Potter films [1-5]
    Harry Potter DVD inferviews [1-5]
    Harry Potter Chocolate Frog Cards
    The Black Family Tapestry, {sold at auction for charity and owned by actor Daniel Radcliffe; also appears in the 5th film to date and should make a reappearance in the 7th}
    …and several others that I can’t recall off the top of my head.

    I’m not sure what RDR and Vander Ark were thinking, other than seeing dollar signs.

  4. Thank you for going into more detail about this. Both as a Harry Potter fan, and as a writer who is working on the final edits on what he hopes to be his first published work, I have watched this case closely, because it impacts me as a fan of Rowlings literary creation, and as someone who wants to know how to protect his own literary creations, and what rights under the law as the originator and copyright holder for his creation that is maintained.

    Looking at this case, what scares me most, expecially after reading through the attachments to the filings posted on justia for this case which included the near completely lexicon book as evidence, I feel worried that if RDR wins, it means my rights as the creators of my works may one day be infringed upon without any way for me to protect my creation. The lexicon book as filed in as evidence was simply a alphabetical rehashing of the harry potter novels, and the two existing companion books jo wrote to raise money for chairty.

    I see two major problems here other then just that it is a rehashing of the seven harry potter books, but also, it is a rehashing of two books written specifically to raise money for charity. those being the boxed set of two hogwarts school books; quidditch throughout the ages, and fantastic beast and wear to find them. by publishing information taken from those two charity books, they are taking away money that would go to charity already, not just by what would be lossed when it comes time for jk rowling to release the authoratative difinitive encylopedia.

    I am not trained in law, but I have tried hard to make as much sense as I can about what is going on with this case. Trying to put loyalty to the series aside, and think it through in as unbiased of a way as I can, how can a publisher without permission from the holders of the copyrights and intellectual property get away with just reorganizing copyrighted material without properly adding commentary and new insight?

    I am very afraid that the ramafaction of a win in favor of RDR Books will have a disasterous effect, setting a new precedent for authors seeking to have a tighter control on fan activitys if this is what can happen.

    I am all for fair use, because it gives the opertunity to open up new realms of discussion and thought on a subject by exploring it through a lense sepeorate from the view of the originators of the work disscussed. However it seems to me that how Fair Use is being used is very shaky and in danger of throwing the balance between what is the rights of the author and originator of a literary work, and the rights of those who wish to comment or paroody it. J.K. Rowling, who has been allowing with companion books of commentary, just wants to protect her rights from being seized and misused by others for profit. in her position, I would want to also.

  5. I’d like to say something witty and bright that contributes in some way, but all that’s coming to mind is “I love this guy SO HARD right now!”

    I’ve been following this case since Halloween in many different forums, legitimate news and otherwise, and when Fandom_Wank — point and laugh capitol of the internet — has better research and greater insight than the NYT, you know something is wrong.

    Thank you for stepping up and saying so!

  6. Finally, someone besides FW is talking sense. RDR/SVA are absolutely not in the right here. I’m all for fair use, but this isn’t fair use at all. Good on JKR for defending her rights as an author and copyright holder; if it were me, I’d do the same.

  7. Thank you so much for understanding this. It seemed like everybody was so set on sticking up for the little guy that they didn’t realise that the little guy is incredibly wrong in this case.

  8. Exactly “A Foster”

    copyright and fair use laws are meant to protect the copyright holder, and legitimate commentators. fair use grants the oppertunity for people to explore and discuss copyrighted material under protection of the law. however it has limitations ment to protect copyright holders.

    RDR Books recently created their own organization called “right to write” which is one of many by that title. they have two missions statements accorrding to their mission statement announcement. the first one is to solicite money to pay their legal bills against jk rowling.

    the second is to fight to protect the rights of writers and authors.

    jk rowling is a writer and a author. steve vander ark is someone who copy and pasted a book together.

  9. Oh wow – as both a lawyer and a journalist I’m glad you caught this major misstatement and am amazed that he got away with it – but then, it seems like many people only have a hazy idea about the actual legal boundaries of copyright and fair use, so I guess I shouldn’t be surprised the editors let that one through.

    I can’t imagine what RDR and SVA are thinking in pursuing this; from my own for-fun musing on the fair use standards in relation to this case, I don’t think he stands much chance of succeeding – and if he does, it seems to me that would cause a fairly major shift in the current standard. (Thank goodness Lawrence Lessig has shifted his focus to political corruption – I can only imagine how much more insane this circus would get if he decided to take a part in it.)

    P.S. I found this blog post via Fandom_Wank (When you’re linked from FW, you KNOW you’ve arrived. :) Now I’m bookmarking your blog for future reading!

  10. Thank you for this piece. I too am a lawyer who, as a general proposition, appreciates both the NYT and the doctrine of fair use, but who believes the NYT really screwed the pooch on this one. I don’t see how RDR could possibly win this case given the existing state of the law. But even more importantly (at least from a journalistic standpoint) the NYT chose the wrong target. Instead of picking a fight with the tolerant Harry Potter franchise, the print media should devote their space to exposing TRUE abuses by copyright holders. In this spirit, I commend to everyone’s attention the New Yorker’s article on the James Joyce copyright saga, and William McGeveran’s subsequent comments on the same issues.

    http://www.newyorker.com/archive/2006/06/19/060619fa_fact

    http://blogs.law.harvard.edu/infolaw/2007/03/25/joyce-fair-use-settlement-good-and-bad-news/

  11. Thanks, all, for the great comments. I owe you more detailed responses, which you’ll get. But I tried to wrap some of this into my latest post:

    http://blogs.law.harvard.edu/infolaw/2008/03/15/harry-potter-and-the-lexicon-of-fair-use/

    Are any of you able to attend some of the trial? I think it’s going to be a great joust.

  12. [...] Lexicon book. The decision is 68 pages long and is available courtesy of the Wall Street Journal. I thought Rowling would, and should, win, but I’m not impressed by the court’s reasoning, especially on the key question [...]