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!