Harry Potter and the Doctrine of Fair Use

In March 2008, a small Michigan based publisher was in the middle of a legal brawl with the creator of the Harry Potter book series, J.K. Rowling and Warner Brothers. The reason for the legal dispute – a fan based site’s efforts to commercially publish a Harry Potter Lexicon. This case had the publishing world up in arms and rightly so, since the Court’s ruling would have serious implications on the existence of fan-fiction sites as well as the ever popular doctrine of fair use.

This image was shared under a Creative Commons Attribution License and was taken from the Flickr Photostream of Tiago Augusto

This image was shared under a Creative Commons Attribution License and was taken from the Flickr Photostream of Tiago Augusto

So what was this case all about?

Way back in 1999, an American national and fan of the Harry Potter books, Steve Vander Ark, decided to run a reference website on the Harry Potter universe – The Harry Potter Lexicon. The purpose of the site was simply to provide readers with a ready-reckoner of all the information crammed into the Harry Potter books. According to their site, they are “currently one of the most-often referenced Harry Potter website on Google behind Warner Bros. and Scholastic.”

J.K.Rowling, although not directly associated with the site, was a fan herself and admitted to often using the site as an easy reference for her work. She and her publishers acknowledged the functionality and massive fan-following of the site, and even awarded it a fan-site award in 2004. In other words, everyone seemed happy that is until 2007 when Steve Vander Ark entered into an agreement with Michigan based publishing house, RDR Books to bring the digital lexicon into the world of print. On receiving the news of Vander Ark’s deal, J.K.Rowling and Warner Brothers immediately filed and got a temporary injunction against RDR Books. (If you’re wondering what an injunction means, it a court order that prevents someone from carrying on whatever they were doing – in this case, carrying on with the publication of the lexicon). In 2008, the Court ruled in the favour of J.K. Rowling and banned the print publication of ‘The Harry Potter Lexicon’ by RDR Books.

Why did J.K. Rowling win?

This image was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of Daniel Ogren

This image was shared under a Creative Commons Attribution Licenseand was taken from the Flickr photo stream of Daniel Ogren

Vander Ark and RDR Books tried to claim fair use (you can read a bit more about that here) and said that ‘The Harry Potter Lexicon’ was transformative use (this means that it was transformed into something very different from the original books). Rowling on the other hand claimed that (1) there had been some serious unauthorized reproduction of her copyrighted material and (2) that she had always been planning on publishing a Harry Potter encyclopedia. Interestingly enough, the Court took Vander Ark’s side on Rowling’s second claim, basically implying that she did not have a monopoly over the publication of a Harry Potter encyclopedia. The Court did however say that there was no fair use, since it found the Lexicon hardly transformative.

Why were people freaking out about fan-fiction?

Well, the case had created a lot of misunderstanding with respect to whether fan-fiction and other forms of fan expression could continue without fans having to face serious legal consequences. It also raised some questions with respect to encouraging fan-fiction since as Rowling put it, she was worried that encouraging fan-fiction might lead to fans believing that they can appropriate her copyrighted content. The Court however made it super clear that this ruling did not put an end to fan-fiction or commercially exploiting fan-fiction – meaning, you can run a site about your favourite book and even make money off of selling guides you’ve written for the book.

This image was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of Pets Adviser

This image was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of Pets Adviser who you can find here.

So what now?

‘The Harry Potter Lexicon’ site is still up and running. If you’re a writer or someone interested in fan-fiction, then do remember that the general norm seems to be that everything goes, until you start making money off it. There are many instances of really popular fan fiction sites and meme generators like ‘Skeletor is Love’ which recently seems to have encountered some copyright related issues of its own.

If you like this post or want to tell us more about legal regulations and fan-fiction, then do go ahead and leave a comment or get in touch.



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