Christopher Caldwell wrote a great FT column about J.K. Rowling’s legal action to resist fair use of her work. Excerpt:
The gravamen of Ms Rowling’s and Warner Brothers’ argument is clear. Mr Vander Ark’s book “is not a reference book or scholarly critique”, they claim, and it lacks “any originality or invention”. Ms Rowling has praised Mr Vander Ark’s website, but calls the book that will draw from it “wholesale theft”. Her attorneys note that “Ms Rowling has allowed fans and scholars wide latitude to comment on, critique, and even create ‘fan fiction’ and art based on her stories”. But of course, nobody in a free country requires authors’ permission to comment on or critique their work.
Lawyers at Stanford University Law School’s Fair Use Project, who are defending Mr Vander Ark pro bono, sought to show in three days of testimony this week that the Lexicon constitutes “fair use” of Ms Rowling’s work. It is a reference guide, of the sort that is familiar (and indispensable) to anyone who has taken a deeper interest in Balzac, Proust, Faulkner or Star Trek.
Ms Rowling “appears to claim a monopoly on the right to publish literary reference guides and other non-academic research relating to her own fiction”, according to Mr Vander Ark’s lawyer. Joe Nocera, The New York Times business writer, puts it even more bluntly. He has called Ms Rowling a “copyright hog”.
Whether the lexicon violates “fair use” depends, according to US legal experts, on whether it is “transformative” or whether it just cribs from Ms Rowling’s plot and prose. Much of the testimony missed this issue.
Ms Rowling dwelt on her own plans to publish a Potter encyclopaedia, which is neither here nor there. Literary critics cannot be kept from writing about, let us say, the novels of Philip Roth on the grounds that Mr Roth swears he wants to publish a book called What My Novels Mean. The fact that Mr Vander Ark would profit from his lexicon is a red herring, too. Provided he is within the boundaries of “fair use”, there is nothing illegitimate about his profiting from his work, any more than it is illegitimate that book reviewers be paid if they cite the books they review.
Ms Rowling also demeaned the quality of Mr Vander Ark’s book, which is legally irrelevant. Apparently some puns she was particularly proud of, including a “double allusion” in the name Remus Lupin, went over his head. She came off as condescending (“It’s very difficult for someone who is not a writer to understand”), self-involved (the suit, she said, “has really decimated the demands of my creative work for the last month”) and mean.
Good, robust piece. Right on.