Intellectual Property Law

Like Voldemort, Potter-Lexicon Suit Rises Again

By Tim Armstrong, Derek Bambauer, and William McGeveran.

RDR Books, which lost in a copyright lawsuit filed by Warner Bros. and J.K. Rowling against its planned Harry Potter Lexicon book, has filed a notice of appeal to the United States Court of Appeals for the Second Circuit. (Hat tip: Slashdot, Ray Beckerman; coverage: Stanford’s Copyright & Fair Use blog, P2PNet; list of documents in the case from Ray Beckerman) Since both Lord Voldemort and Harry Potter rise from the (nearly) dead, you can read the analogy however you want. I think the appeal is very helpful; while I thought the original verdict was correct in its outcome (including the minimal statutory damages), I found the reasoning confused in a number of key areas. The Second Circuit should, hopefully, affirm, but with a clear opinion setting straight some of the issues related to derivative works and fair use. It’s great to have such capable counsel on both sides, improving our odds of a thoughtful decision.

Rant: It’s a little frustrating to read the comments on the Slashdot post about the case. There’s just so much FUD out there about fair use. Even reading the relevant statute - 17 U.S.C. 107 - isn’t all that helpful, not just because its test is a non-exclusive four-factor totality of the circumstances test, but also because the 1976 Copyright Act was intended to codify, not supplant, the well-developed common law regarding fair use. When I teach Copyright, I tell the students that I think making predictions about what is or is not fair use (when you’re representing someone as counsel) is just about malpractice. It’s very hard for experienced attorneys to assess fair use (as the debate over the Lexicon case proves). For those in the Slashdot crowd who think it’s straightforward, or formulaic, I hope you don’t rely on those perceptions in making actual decisions about copyright. OK, Rant off.

Full post as published by Info/Law on November 12, 2008 (boomark / email).