Harry Potter ruling points out the limits of fandom

J.K. Rowling recently won the right to be even richer when a US federal judge ruled against a Harry Potter fan's right to publish The Harry Potter Lexicon. In so doing, Ms. Rowling demonstrated two things:

1. No matter how "right" it may seem to use someone else's copyrighted works, you can't simply assume that right, and
2. Just because you're copying out of love and devotion doesn't make it right.

I'm sure that the defendant in the Harry Potter decision, Steven Vander Ark, must have felt hard done by to see his paean to Rowling's genius stomped on by her. A wide range of Potter fans seem to share this view. As I'll describe below, this isn't wildly different from open-source "fans" who piggyback on the works of others.

But their misplaced feelings and his intentions are somewhat irrelevant here. He copied liberally from Rowling's work to create "his" lexicon, which is the primary problem, as Groklaw points out:

The fact is, Rowling led the defendant on with praise of his work, there was talk of him being the editor of the official encyclopedia, then changed her mind about having him or anyone as editor and decided to do it herself. Her prior praise of his fan site weighed against her. But she did tell him eventually he had no role, and he went ahead anyway, with some marketing that the judge found misleading. So the question was, is it fair use? It certainly could have been, since a copyright owner can't control transformative derivative works totally, but where the defendant failed was in the how of it, how he went about it.

The impression I get from the Order is that if he'd been less of a fan and copied less and written more of his own words instead, it would have worked out better for him.

Bingo. If we were talking about a phone book (with lots of facts about names, addresses, and phone numbers), the bar for copyright infringement would have been set higher. Arguably, if applied to software law, which has a range of "facts" about common programming techniques, etc., the bar would also be higher, though not quite as high as a phone book.

There are limits to fandom, in books as well as software. In open-source circles there has been hand-wringing about whether it was OK to piggyback on others' trademarks to provide training for JBoss and other open-source projects. It is, but it's all in how you do it. Yes, it's trademark versus copyright, but the underlying principle is the same:

Intellectual property must be respected, even if your desired infringement is born of love and respect and not a desire to pilfer.

Personally, I think Rowling would be better off encouraging fan fiction and derivatives in the same way that Stephanie Meyer has done with her novels. But that's the author's decision, not the fan's. It's a tough requirement, but ultimately it's necessary to protect control of one's creations.

[GadgetDon]

Except JKR >HAS< been encouraging fan fiction, has been encouraging fan sites, has been encouraging analysis books. She wrote the forward for a new book coming out, "Harry: A History" by Melissa of the Leaky Cauldron, a fan website (which is focusing mostly about Harry Potter fandom than what happens in the books). As you point out, she was rather complimentary to Steve Vander Ark's website. And there have been a number of books that have come out, analyzing the series, speculating about what would happen in book 7.

But the problem came that SVA and RDR books (1) were doing this for money (fanfiction is all labors of love and free), (2) made massive use of passages and descriptions from the book, and (3) announced the book shortly after JKR said that she'd be writing an encyclopedia.

Even so...there might have been able to have been a deal made, if RDR had been more willing to talk to JKR and her partners, and negotiate. Unfortunately, RDR took a position that they could do whatever they wanted, they had no need to negotiate at all, and that pretty much locked things in.

One more thing...you talk about a lot of Harry Potter fans share the view that SVA was hard done by. Well, the link you gave was about people upset about the movie delayed. And at least from what I've seen on the sites, most fans have lined up behind JKR and against SVA. Which I think is a touch unfair, SVA seems to have gotten caught up in things beyond his control.

Interestingly, SVA is working on another book, Discovering Harry, where he travels to the sort of places where the events in the book could have taken place. Done well, that could be good. And it'll be legal, too. And SVA has said it won't be published by RDR.

[muzakaz]

This is all fine and dandy.... I don't blame JKR one bit.

You give people and inch, the next thing you know they are suing you.

It's sad but that is the way it is.

[ainemoire]

Thank God.
Sorry, but I think fanfic is lame as all hell.
If these people really want to be authors, they'll come up with their own characters and story lines.
In the meantime, all they usually produce is absolute sh*t that is a disgrace to the original stories. I also can't help but wonder about the sanity of some of these people. I've seen fanfic about celebrities; who the hell sits around fantasizing about what a celebrity does or might do? Especially to the point of writing lengthy stories about it??

[The_Decider]

I remember reading an interview with JKR saying how she isn't going to sell out when HP first started to become popular. Within a year, she had ****** herself out so much that it would embarrass a street walker.

The pathetic thing is that she isn't a very good writer. The general premise was a good idea, but her writing isn't worthy of 10% of the praise and not worth .00001% of the money she has made.