International Law

In a piece for FindLaw's Writ, Julie Hilden analyses J.K. Rowling's lawsuit against those who plan to publish an Unauthorized Harry Potter Encyclopedia and asks, who should win?

Recently, Harry Potter author J.K. Rowling and Warner Brothers sued a small publisher that is planning to sell a lexicon/encyclopedia of her work. Commentary on the suit - such as Joe Nocera's February piece, supporting the small publisher, for the New York Times -- has played upon themes that have become increasingly familiar lately: the right of the original author to control her creative work, versus the supposed right of others to freely make use of it.

The problem with these themes, however, is that the first is a constitutional and statutory reality, and the second still is, in large part, wishful thinking.

It is completely debatable, as a policy matter, whether we ought to have a copyright regime that values equally the works of original authors and of those who create works deriving from those original authors' works. In reality, however, the legal regime we have strongly favors original authors. It is original authors for whom copyright was enshrined in the Constitution, and for whom the copyright laws were passed.   

Granted, there is a "fair use" exception to the copyright laws - but it is an exception, not a default rule. Granted, too, courts have actively protected parodies under the "fair use" exception, as informed by the First Amendment. But parodies are special: They've been around since long before the Framers, and they are precisely the kind of scathing, oppositional speech as to which the author would never provide a copyright license, for any amount of money.

All in all, the fact remains, as much as many would try to deny it, that copyright law is meant to protect creativity and originality on the part of the original author, not on the part of the creator of derivative works. It's for this reason that, if we apply the "fair use" factors to the J.K. Rowling case, it's quite clear Rowling has a strong edge.

Read more here.