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Harry Potter is mine… all mine!

Updated Thursday, 24th April 2008

Is copyright law justifiable? And what constitutes "fair use"?

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Potter-lust shows no sign of abating it seems. In my local bookshop the other day I noticed teetering piles of Potters going at full price. Surely to goodness, then, life for author J.K.Rowling must be sweet. Not only is her work loved and admired by millions, but royalties (also in the order of millions) come streaming back to her.

Still, this hasn’t stopped Rowling from taking out a copyright plaint against Stephen Vander Ark in a New York court.

Harry Potter characters rendered as finger art Creative commons image Icon Juliana Coutinho under CC-BY licence under Creative-Commons license
Fair use? On one hand... Fingers playing Harry Potter characters

Vander Ark, a former school librarian, has run a Harry Potter website for several years which features a Harry Potter lexicon. In the complex world of Potter this has provided the useful service of identifying bizarre characters, fantastic species, and arcane locations. Rowling herself is on record as having used it in her writing. Now, though, Vander Ark has created a print version, released through the small publisher RDR Books. Rowling doesn’t like it and in conjunction with Warner Bros, the studio behind the films of the books, she is suing writer and publisher of the lexicon on the grounds of breach of copyright.

Why does this leave such a bad taste in the mouth? After all, it seems clear enough that Vander Ark has benefited from someone else’s creativity. As Rowling herself put it earlier in the week, the lexicon represents nothing less than the ‘wholesale theft of 17 years of my hard work’. And it isn’t just a question of money. The Harry Potter characters, we’re given to understand, are ‘dear as my children’. What Rowling offers here is the classic double rationale for copyright: economic ownership on the one hand, and ‘moral rights’ of the author over her output on the other. As it happens I’m unconvinced by either of these arguments, and remain a strong sceptic about the justification or need for copyright.

Still, whether or not you’re persuaded by full-throated copyright scepticism, certain aspects of the present case surely have worrying implications. Most importantly, we should note that Vander Ark and his publisher are defending themselves on the grounds of ‘fair use’. This is a US term, but a similar provision of ‘fair dealing’ exists in British law, and indeed in most legal systems the world over.

Quite simply, fair use covers all those forms of use of a copyrighted work where the public good has clear priority over the claims of the copyright owner for remuneration and control. Quotation for the purposes of criticism is one of the most obvious examples. Up to a certain limit you can quote what you like without referring to the owner of the copyright in the work from which you’re quoting. Just as well if you’re in my trade – academics in the arts and social sciences would be unable to publish without rights of fair use.

But the same principle must apply for other writers too, in this case someone writing a reference work for a fictional oeuvre. What Vander Ark is doing in his lexicon is nothing less than providing criticism and support in respect of Rowling’s work. This isn’t at all a matter of copying her creations. Rather Vander Ark is discussing them, and helping her readers to boot.

Don’t get me wrong. I can’t stand Harry Potter. But I’ll defend to the death the right of anyone to write about the brat.





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