Sunday, February 10, 2008

Harry Potter and the Copyright Lawyers

The New York Times has an interesting piece on Rowling's attempt to stop the publication of the Harry Potter Lexicon, based on the website of the same name. Needless to say, the internet has transformed the cultural background of copyright law. As Lessig put it in the article, if claims like Rowlings' are valid, the web is turning out a "whole generation of criminals."

I'd be interested to read some specifics about the HPL's approach, and Rowling's charges there. In legal arguments over copyright, details matter. Commentary and criticism are one thing; excessive copying is another.

From the website, it seems that long quotations are rare or absent, and that many of the entries are synthetic or analytical in nature. Some of the essays, like "Wizard Banking" or "British Schooling in the 1970s?" read like those deadly mini-articles from the Transactions of the American Philological Society. And can anyone claim that the analytical and speculative "Religion in the Wizarding World" isn't protected?

One of the key notions of US copyright law is the distinction between fact and expression. At its most basic, this means that you can write about the dimensions of the pyramids or the life of JFK, but you can't describe them in the same words as I did. In this way, nobody "owns" a fact, no matter how much trouble it took to collect or how interesting it is. It doesn't even have to be a true fact. It just has to intend or purport to be one.

When it comes to fiction, however, the line is blurry. That J. K. Rowling wrote a series of books about a character named Harry Potter is certainly a fact. But where do we draw the line? Is it a fact that, as the HPL explains, the diadem of Ravenclaw is "etched with the words, 'Wit beyond measure is man's greatest treasure.'"? The diadem doesn't exit. It's a product of Rowling's imagination. And does it matter that the HPL uses "etched with the words" and Rowling used "there were tiny words etched into it"?

I would love to see the fact-expression extended to cover "literary facts," to allow authors to write about Albus Percival Wulfric Brian Dumbledore as they would JFK—stick to the facts and avoid pulling a Doris Kearns Goodwin. Unfortunately, that's not where the law is.

Hat tip: David Weinberger.

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5 Comments:

Anonymous HeathMochaFrost (Marie) said...

Hey Tim - Interesting post, thank you. But I noticed that you typed, "The diadem doesn't exit." Might want to edit that. ;-)

2/10/2008 7:36 PM  
Blogger Jon Ericson said...

From a (potential) author's perspective, I would think there is a clear separation between, say, an unauthorized biography of JFK and of APWBD. For one thing, it seems far easier to verify facts about the former than the later. As creator of the Potter universe, Ms. Rowling has ultimate authority (in all senses) over it. In fact, if she wishes to change her universe, in a second edition of the series for instance, she could write the diadem out of existence.

Authors can, and often do, cede some of that power to others, but it doesn't seem right to allow that power to be wrested away. (Though that might have saved us from the disappointing and unimaginative Dune prequels.)

IANAL, however.

2/12/2008 4:16 PM  
Blogger Tim said...

The rules around this authority are weird. For example, doing a faithful encyclopedia is (apparently) troublesome. But a parody—which is, by definition—is always a-ok. So, you can commit enormous violence to an author's vision but not portray it accurately. There are good reason for this, but if you step back a little, it's a little weird.

2/12/2008 4:28 PM  
Anonymous Anonymous said...

The genre has been around for a while - fantasy involving super powers, but always attributed to sorcerers, witches, underworld characters, etc. For a completely opposite approach to action/fantasy, check out a book called Legions of the Lord, by Ben King. This one has a story line that will captivate young and old, but all the super powere resides in a figure known as God the Father.

10/06/2008 8:51 AM  
Anonymous Anonymous said...

My son just read Legions of the Lord by Ben King and for once, he's not interested so much in wizards and witches, but thinks angels are cool. A very different book!

12/17/2008 9:03 AM  

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