There are already plenty of blog posts out there about the Harry Potter Lexicon fracas, but I've got to add my $0.02. In a nutshell, there's far more at stake here than simply a multibillion-dollar entertainment franchise, and the emotional stability and further creative output of a certain British author.
By suing the publisher of the Harry Potter Lexicon, Rowling is arguing for a very maximalist interpretation of the scope of copyright. This could have what we IP wonks refer to as a "chilling effect" on other people's creative work, and may paradoxically limit the ability of her fans to fully engage with her work (to say nothing of the negative PR value of the suit itself), depressing future revenues from this and other franchises.
Part of the problem is cultural. US and European IP laws are premised on very different notions of authorship. As the New York Times reported, a tearful Rowling "talked about the Potter books as if they were her children." This relationship, she suggested in her testimony, gives her a moral right and responsibility over the "lives" of her "children," wherever and however they may be used. This concept of "moral rights" is actually foundational to continental copyright laws, but in the US (where she's prosecuting the suit), we hold no truck with that kind of sentimental argument. To paraphrase Dylan, beyond a certain point, authors' "sons and daughters are beyond their command."
Of course, where that "certain point" lies is the subject of endless argument and negotiation. And, as people like Lessig and Vaidhyanathan have persuasively argued, even in the good old U.S. of A., the scope of authorial control over creative works has consistently expanded since the framers of the Constitution first granted Congress the power "To promote
the progress of science and useful arts, by securing for limited times
to authors and inventors the exclusive right to their respective
writings and discoveries." A few decades ago, the idea that an alphabetized resource listing factual data about the characters and themes of a published book would be subject to sanction by the book's author would have seemed absurd; neither collections of facts nor characters nor plot elements were protected by US copyright laws. Today, in the wake of the Alice Randall nonsense, Rowling's chances of success -- or at least a satisfying settlement agreement -- seem far greater.
This post is too long already, but one more thing about Rowling's argument really bothers me: her claim that, as the NYT put it, the Lexicon "would compete unfairly with an encyclopedia she had been planning to create since 1998." The argument contains the seeds of its own undoing. First of all, she is asking the court to assess market harm against a product that doesn't exist yet, and the only proof of whose eventual existence is the plaintiff's own claim. Second, even if we believe in the veracity of her claims, the decade-long gap between creative impetus (1998) and announced plans (2008) is itself an argument against granting authors permanent exclusive control over the lives of their characters; quite simply, there isn't enough J.K. Rowling to go around. The world demands more Harry Potter than she can produce, and even her best intentions (the proceeds were earmarked for charity, the billionairess claimed) weren't enough to get the project off the ground, after a decade.
There's much, much more here to discuss, but I've got to prepare to teach my copyright class in a few minutes...
UPDATE
Karl of QuestionCopyright writes:
Of course, I completely agree with what you write.
Personally, I wouldn't even list the possibility of "depressing future
revenues from this and other franchises", because that implies that
perhaps if she'd taken actions to *increase* such revenues, they would
be inherently justifiable. In other words: it's true that she's acting
against her own interests here, but what bothers us is that she's acting
against everyone *else's* interests. If she suddenly started acting in
her own interests, but still against everyone else's, that wouldn't be
any better.
This position that her books are like her children... even if it were
not a misplaced sentimental indulgence (especially from someone who has
real children), it would be inappropriate to invoke. After all, no
one's doing anything to any of her children! Her books are still there,
as they always were. Imagine if another parent observes how you educate
your kid and then gives their kid a similar education, thus turning out
a similar kid. Who would object to that on the grounds that the second
kid is too similar? Wouldn't you *want* the world to be full of kids
your kid could play with? Sheesh. Dumb metaphor anyway.
It's just censorship, plain and simple. We ought to call it by its
right name. As a writer -- and in particular, as a highly derivative
writer, not that there's anything wrong with that -- you'd think Rowling
would get this. She's comfortable building on all the mythology she
received for free, because it's out there in the culture, but she
doesn't seem to understand that the way things get out there into the
culture is by people copying and building on stuff. Her position is
apparently that although all the pre-existing things she included in her
books are just part of the culture, her books themselves *aren't* a new
part of that culture, because... uh, somehow, they're special? Because
the author is alive? Because it's modern times now and so we're not
creating new culture?
It's a bizarre feat of re-categorization, really.
(I'd have left this as a comment on your blog, but typepad requires one
to create an account.)
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