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Intellectual Property Law

Speaking of fair use... did you hear about the Harry Potter fair use case?

By Georgia Harper (all)

Not too much news yet, but Stanford's Fair Use Project has signed on as co-counsel in a case that pits fan site collected information, in published form, against the copyright owners of the Harry Potter series: Fair Use Project to Represent RDR Books in Harry Potter Lexicon Dispute | Stanford Center for Internet and Society [beta site]. There's a quote from and a link to the press release on the Stanford site. Interesting points: the fan site was started by a librarian! This is going to be a very interesting case. It will either join the cases Jon Band grouped together as broadening the scope of fair use for creative and transformative works, about which I blogged earlier this week, or it will throw the progression a curve. As more facts come out about the book (A Harry Potter Lexicon) and the way counsel plans to defend, there'll be more to talk about (we'll know more about which cases are relevant), but at the moment, one case is sticking in my memory, a case that did not go well for fair use in the context of the use of information about a copyrighted work. It was a case about the tv series, Seinfeld (Castle Rock Entertainment, Inc. vs. Carol Publishing Group, Inc.). The defendant had created a sort of trivia quiz book about the show's plots, themes, particular series events, etc. (the Seinfeld Aptitude Test). The court could have characterized these things as *facts* -- it is a fact that in the episode called [whatever], Seinfeld said [such and so]. But the court did not treat those events as facts. Rather, it treated them as the creative property of the copyright owners, so borrowing them, or using them, was an infringement. The defense of fair use did not apply, however, because the court concluded that the trivia quiz approach was not transformative. Ivan Hoffman did a very nice comparison of the fair use arguments in the Seinfeld case and The Wind Done Gone case (Suntrust Bank vs. Houghton Mifflin -- the story of Gone With the Wind told from the slave's perspective), two fair use cases that went in opposite directions, on the issue of transformativeness. Both of those cases, and this one, can be viewed through the lens I spoke about yesterday (the post about Jon Band's analysis of recent fair use cases) -- where transformative is the word used to explain the court's decision, but not used really to decide the case. The decisions, I suggested, are more of a "stand back and think about how this case *should* go" process. Read especially the Seinfeld court's description of the back cover of the book at issue (in Hoffman's analysis). It reveals quite a bit less of a critical commentary motivation than is apparent from the text itself of The Wind Done Gone. A court might think long and hard about whether we *need* to have works in the nature of The Wind Done Gone, and therefor must preserve the right to create them by including them within the scope of fair use. It probably would not be deeply troubled to dismiss the Seinfeld trivia quiz book. How will a court feel about the Harry Potter Lexicon?

Full post as published by ©ollectanea on December 07, 2007 (boomark / email).