Opinion: Harmless drudges defended against LAT legalese
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Just in case our editorial on J.K. Rowling’s suit against The Harry Potter Lexicon isn’t fresh in your mind, our take was: Stupid idea, bad for the brand, bad for Rowling’s longterm legacy and bad for the fans, but probably defensible from a legal and a property-rights standpoint:
The most compelling public-interest argument against the steady expansion of copyright duration and power has been that it discourages new work by outsiders without encouraging copyright owners to be more productive -- as was clearly the case when, for example, Margaret Mitchell’s estate attempted to block ‘The Wind Done Gone,’ Alice Randall’s parody of ‘Gone With the Wind.’ That is not the case here. Rowling is still alive, still creating material and still in a position to want, and merit, relatively full powers over her invented universe.
Tim Wu in Slate also seems to think the suit is a bad decision, but he says Rowling ought to lose for strictly legal reasons:
The closest relevant legal precedent is the 2002 Beanie Baby decision by Judge Richard Posner (who has a taste for cases involving stuffed animals). Ty, the producer of Beanie Babies, doesn’t like unauthorized guides to the Beanie Baby universe and their unflattering tendency to criticize the company, so it sued. Ruling against the company, Judge Posner used the same analogy that I have, comparing the guides to book reviews: ‘Both,’ he said, ‘are critical and evaluative as well as purely informational; and ownership of a copyright does not confer a legal right to control public evaluation of the copyrighted work.’ That’s logic that should control the Potter case as well. Even if the Beanie Baby case isn’t directly controlling, the economics suggest the same result. How, exactly, are we hurt by the existence of competing guides to the Potter universe, one written by fans, the other by Rowling? It would be strange to say that since Fodor has written a perfectly good guide to London, we don’t need the Lonely Planet or, for that matter, Wikitravel. Giving Rowling what she wants would be like giving Egypt the power to control guides to the pyramids.
I don’t see how the Beanie Baby case is controlling, or even how it’s relevant. A book about three-dimensional plush toys isn’t taking nearly as much material as a book about another book, is it? All the value adds of descriptions and criticisms of the objects (objects that don’t contain any words) are original to the authors of the Beanie Baby guide. Very few are original to the authors of the Harry Potter book — if they were, the book wouldn’t be a reliable guide.
Wu argues that there’s a threat here to ‘our collective wisdom’ and ‘what we know.’ This is more properly understood not as a matter of what belongs to us but of what belongs to J.K. Rowling. A wiki-type online guide to the Potter books is an acceptable fair use because the added value is clear: It provides a reorganization of Rowling’s stuff into another medium in a way that is clearly distinct from any of her books. A book is something different: By its nature as a guide it can’t depart substantially from Rowling’s work; the ratio of copyrighted to new material is so great as to make a fair-use claim very difficult.
Which, again, is not an argument that Rowling should be pursuing an action we called ‘petty, churlish and, from a business standpoint, probably ill-advised.’ It’s a rare sign of good sense that, for example, Paramount does not go after the proprietors of Memory-Alpha. (And just to be clear, for the very reasons detailed above, I think Paramount would lose if it did; while the ratio of copyrighted to new stuff is still large, the act of describing content from a visual medium is itself transformative in a way that rearranging material from a written medium is not.) But just because sweet reason leads some copyright owners to behave with liberality doesn’t mean all copyright owners should be required to do the same. The Harry Potter franchise is Rowling’s to screw up any way she wishes.