Legal News

Running Over Fair Use Like the Hogwarts Express?

By Dan Slater

There’s something happening in copyright.

Back in October, the Law Blog read this article by Columbia’s Tim Wu about the lax copyright policing of fan-written websites. Wu, a former clerk to Judge Posner and Justice Breyer, observed that the sites were being left alone mostly because media companies realized that they serve as free advertising.

Weeks later, it turns out, Wu’s theory was upended by Warner Brothers and J.K. Rowling, the creator of the Harry Potter series, a pop culture phenomenon of which the Law Blog remains mostly ignorant. (We hear tale, however, of a game played on brooms?) Warner and Rowling filed a lawsuit against RDR Books, a small publishing house in Michigan, over its plans to publish a print edition of The Harry Potter Lexicon website, a compendium of all things Harry that looks, well, rather daunting to neophytes like us. In December Stanford Law School’s Anthony Falzone — a former Bingham McCutchen litigator and the heir apparent to Lawrence Lessig’s Fair Use Project — agreed to help defend RDR Books against the suit.

Last month, Wu defended RDR in another Slate piece, writing, “There is a necessary and healthy line between what the initial author owns and what follow-on, or ’secondary,’ authors get to do, and Rowling is running over that line like the Hogwarts Express.”

On Saturday, the NYT’s Joe Nocera, who reported that Falzone filed RDR’s brief on Friday, offered a slightly different analysis: “No one is saying that anyone can simply steal the work of others. But the law absolutely allows anyone to create something new based on someone else’s art. . . . it has long been true for writers, filmmakers and other artists. That’s what ‘fair use’ means.”

Hey LB loyals, any copyright pros amongst you? We seem to remember some precedent involving a Seinfeld trivia book, and another one involving unauthorized guides to Beanie Babies. Is there any good argument for copyright infringement by the H.P. Lexicon? Or are Rowling and Warners on a fool’s errand?

Full post as published by Law Blog - WSJ.com on February 11, 2008 (boomark / email).