From
The New York Times February 9, 2008
Talking Business
A Tight Grip Can Choke CreativityBy
JOE NOCERAOn Friday, a lawyer named Anthony Falzone filed his side’s first big brief in the case of Warner Bros. Entertainment and
J. K. Rowling v.
RDR Books. Mr. Falzone is employed by Stanford Law School, where he heads up the Fair Use Project, which was founded several years ago by
Lawrence Lessig, perhaps the law school’s best-known professor. Mr. Falzone and the other lawyers at the Fair Use Project are siding with the defendant, RDR Books, a small book publisher based in Muskegon, Mich. As you can see from the titans who have brought the suit, RDR Books needs all the legal firepower it can muster.
As you can probably also see, the case revolves around
Harry Potter. J. K. Rowling, of course, is the creator of the Harry Potter series — “one of the most successful writers the world has ever known,” crowed Neil Blair of the Christopher Little Literary Agency, which represents her. Warner Brothers holds the license to the Harry Potter movies. Of the two plaintiffs, though, Ms. Rowling appears to be the one driving the litigation.
“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.
And what perfidious act of “hijacking” has RDR Books committed? It planned to publish a book by Steven Vander Ark, who maintains a fansite called the Harry Potter Lexicon. The Lexicon publishes Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines and does a thousand other things aimed at people who can’t get enough Harry Potter. It’s a Harry Potter encyclopedia for obsessive fans.
So long as the Lexicon was a free Web site, Ms. Rowling looked kindly upon it. But when Mr. Vander Ark tried to publish part of the Lexicon in book form — and (shudder!) to make a profit — Ms. Rowling put her foot down. She claims that she wants to publish her own encyclopedia someday and donate the proceeds to charity — and a competing book by Mr. Vander Ark would hurt the prospects for her own work.
But more than that, she is essentially claiming that the decision to publish — or even to allow — a Harry Potter encyclopedia is hers alone, since after all, the characters in her books came out of her head. They are her intellectual property. And in her view, no one else can use them without her permission.
“There have been a huge number of companion books that have been published,” Mr. Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But, he added: “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.”
They fall in line. There, in that one sentence, lies the reason Mr. Falzone and his colleagues have agreed to help represent RDR Books. And it’s why Mr. Lessig decided to start the Fair Use Project in the first place.
•
It’s an odd twist that this dispute centers around a book, because ever since the recording industry first sued
Napster, most of the big legal battles over copyright have centered on the Internet. The lawsuit
Viacom filed against YouTube last year to prevent people from posting snippets of Viacom’s copyrighted television shows is the most obvious recent example.
But if you look a little further back, you’ll see that for a long time now, copyright holders have made a series of concerted efforts to extend copyright protection and make it an ever-more powerful instrument of control.
More than a century ago, copyrights lasted for 14 years — and could be extended another 14 if the copyright holder petitioned for an extension. Today, corporate copyrights last for 95 years, while individuals retain copyrights for 70 years after their deaths. The most recent extension of copyright, passed by Congress in 1998, was nicknamed the Mickey Mouse Protection Act, because
Disney’s lobbyists were intent on keeping Mickey Mouse from falling into the public domain — and on preserving billions in profits for Disney.
At the same time, though, copyright holders have tried to impose rules on the rest of us — through threats and litigation — that were never intended to be part of copyright law. They sue to prevent rappers from taking samples of copyrighted songs to create their own music. Authors’ estates try to deprive scholars of their ability to reprint parts of books or articles because they disapprove of the scholar’s point of view. Mr. Lessig likes to cite a recent, absurd case where a mother posted a video of her baby dancing to Prince’s song “Let’s Go Crazy” on YouTube — and Universal Music promptly demanded that YouTube remove the video because it violated the copyright. Have these efforts had — as we like to say in the news business — a chilling effect? You bet they have.
About a decade ago, Mr. Lessig decided to fight back. His core belief is that copyright protection, as he put it to me, “was meant to foster creativity, not to stifle it” — yet that is how it is now being used. He fought the Mickey Mouse Preservation Act all the way to the
Supreme Court (he lost). He founded Creative Commons, which is, in a sense, an alternative form of copyright, allowing creators to grant far more rights to others than the traditional copyright system. And he started the Fair Use Project to push back against copyright hogs like J. K. Rowling.
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. This is something the Internet has made dramatically easier — which is part of the reason we’re all so much more aware of copyright than we used to be. But it has long been true for writers, filmmakers and other artists. That’s what “fair use” means.
And that is what is being forgotten as copyright holders try to tighten their grip. Documentary-film makers feel this particularly acutely. My friend Alex Gibney, who directed the recent film “Taxi to the Dark Side,” about torture, tried to get Fox to license him a short clip from the television series “24” to illustrate a point one of his talking heads was making about how the show glamorized torture. Fox denied his request. Mr. Gibney, a fair-use absolutist, used it anyway — but many filmmakers would have backed away.
Which is also why the Harry Potter Lexicon case is so important. For decades, fair use has been thought to extend to the publication of companion books that build on the oeuvre of someone else — so long as the new work isn’t simply a rehash of the original. There are dozens of companion books to the Narnia chronicles, for instance, and the works of
J. R. R. Tolkien.
What Ms. Rowling is saying, however, is that her control of Harry Potter is so all-encompassing that only she gets to decide the terms under which a companion book is allowable. She can talk all she wants about charities that will be deprived if she loses this case, but this is really a power grab. RDR Books should not have to “fall into line” to publish the Lexicon. Ms. Rowling is claiming a right that, if granted, will hurt us all.
And in a roundabout way, that gets us back to what the Internet has wrought. For, as Mr. Lessig points out, anybody who owns a computer can now create content that is based on someone else’s creation. Indeed, we do all the time, by posting content on
Facebook, on YouTube, everywhere on the Internet. If the creation of that content is deemed to be a violation of copyright, “then we have a whole generation of criminals,” said Mr. Lessig — which is terribly corrosive to society. But if it is fair use, as it ought to be, then it becomes something quite healthy — new forms of free expression and creativity.
As it happens, Mr. Lessig made those last remarks in a lecture at Stanford last week. It was a kind of swan song, for he is leaving the field of copyright to tackle a new challenge: he will try to build a grass-roots movement to reduce the influence of money in politics. When I asked him if he was making this change because he was discouraged about the state of copyright, he sounded surprised by the question.
“I’m absolutely convinced now that this battle will be won on the right side,” he said. “I think there are now a lot of current leaders who can take the movement forward. When I started in this field, there were very few.”
I suspect he’s right, though it is likely to be a long struggle — which will involve a lot more legal cases like Warner Bros. Entertainment and J. K. Rowling v. RDR Books. And a lot of attitudes will need to change as well, starting with Ms. Rowling’s.
During my conversation with her representative, Mr. Blair, he pointed me to Ms. Rowling’s Web site, suggesting that would be the best place to find her response to the RDR Books case and the Harry Potter Lexicon. “You have our permission to quote from her Web site,” he said.
I already have that right, Mr. Blair. But thanks anyway.
