Harry Potter: the last battle
On one side: global-celebrity author JK Rowling. On the other: an amateur fan site devoted to the world’s favourite boy wizard. At stake: the soul of Harry Potter. John Crace on the court case that has the publishing world holding its breath
She doesn’t court publicity. She doesn’t flaunt her wealth. She has turned a generation of kids on to reading. She has given millions to charity. At a time when most celebs can’t bear to be ignored, JK Rowling has been a model of restraint. In little more than a decade since the first Harry Potter book was published, she has barely put a foot wrong in making the transition from hard-up single mother to one of the UK’s richest people, with an estimated wealth of £545m. As the Harry Potter brand went global, Rowling herself remained distanced, in the public’s imagination, from the grubbier commercial nitty-gritty. It is as if she was an accidental multimillionaire.
That image, though, is likely to be tested on March 24 when a New York court considers the injunction that Rowling and Warner Brothers have taken out against a small, Michigan-based publisher, RDR Books, to prevent publication of the Harry Potter Lexicon, an A-Z guide to all things Hogwarts. It could also be a landmark case, because what is at stake is not just an author’s right to control the publication of secondary works but also the right to publish in book form information that has been previously available on the web.
The Harry Potter Lexicon dates back to 1999, when Steve Vander Ark, an American fan of the books, decided to set up a reference website. “There was so much information that it was hard to keep track,” he says. “So I came up with the idea of a site that would list everything from where and when each character appears to what each spell did. The site went live in 2000 and grew to include entries on the films and actors and is now run by a volunteer staff of eight who, like me, love the books.”
Over the years, the Lexicon has come to be seen as the most authoritative of the many Harry Potter sites and has been used by everyone from fans to Rowling herself. In June 2005, Cheryl Klein, Rowling’s editor at Scholastic, Rowling’s US publisher, sent Vander Ark a note that read, “On behalf of the Scholastic Half-Blood Prince editorial staff, I’d like to say thank you for the wonderful resource your site provides for fans, students and indeed editors and copy editors of the Harry Potter series. We referred to the Lexicon countless times during the editing of HP6, whether to verify a fact, check a timeline or get a chapter and book reference for a particular event.”
Klein wasn’t alone in her admiration. “Warner Brothers flew me over to the UK to meet the stars and the crew for the opening of Harry Potter and the Order of the Phoenix,” Vander Ark points out. “The producer, David Heyman, told me they used the Lexicon on set every day. I was also taken to Electronic Arts, the company that was making the video game of the film, and they had printouts of the Lexicon taped all over their walls.” In 2004 Rowling herself gave the Lexicon one of her “fan site awards” and admitted that she sometimes used it when she needed to check a fact.
In short, everyone seemed very happy with the Lexicon so long as it remained on the internet and didn’t make any real money – it has only earned $6,000 in advertising revenue over seven and a half years. But all that changed last year when Vander Ark signed a deal with RDR books to publish part of the Lexicon website in book form. On – appropriately enough – Halloween, Warner Bros and Rowling took out a temporary injunction against RDR to prevent publication.
Warner Bros and Rowling argue that the publication of the Lexicon infringes Rowling’s copyright and that she has openly and repeatedly expressed her interest in publishing an encyclopedia covering all seven of the Harry Potter books, whose profits would go to charity. RDR argues that there is a long history of publishing secondary reference works and that the Lexicon falls within accepted definitions of “fair use”.
If the basic outline of the dispute seems straightforward, however, the details most certainly aren’t. There is a complex array of claims and counterclaims from both parties – not least over how the case even got to court. “We tried to contact RDR Books and Steven Vander Ark several times to have a dialogue about the book,” says Neil Blair, a lawyer at the Christopher Little Literary Agency (CLLA), which represents Rowling. “Unfortunately, they weren’t willing to discuss it at all. Sadly, we were therefore left with no choice but to pursue the matter in court.”
Roger Rapoport, managing director of RDR Books, doesn’t remember things that way. “We were contacted once by the CLLA,” he says, “but there was no hint there was any scope for manoeuvre. Their message seemed to be ‘Don’t publish or else.’ So, having taken legal advice that our book was lawful, we left it at that. The next we heard was that an injunction had been taken out.”
What is clear is that Vander Ark had previously asked CLLA if he could collaborate with Rowling on a Potter encyclopedia, and been turned down, and had also suggested to third parties, via email, that he thought publishing the Lexicon without Rowling’s permission would be an infringement of her copyright. For Rowling and Warner Bros, this is a virtual admission of guilt. “Not so,” says Vander Ark. “I’m not the defendant in this case and I’m not a legal expert. I’d never taken any legal advice over the encyclopedia, so what I might have thought was uninformed and irrelevant.”
So the fundamental principles of the case are likely to determine the outcome. The first of these is whether there is a material distinction as far as copyright is concerned between something that is published on the web and something that is published in print. Blair argues there is. “There is a big difference between a free fan website,” he says, “and a for-profit book that attempts to make money out of Ms Rowling’s original works.”
For her part, Rowling says in her written evidence that she is particularly concerned that her acceptance of free fan websites might justify efforts to publish in book form. “Such a position penalises copyright owners like me for encouraging and supporting the activities of their respective fan communities,” she insists.
Dave Hammer, RDR’s New York attorney, doesn’t believe the law distinguishes between digital and printed copyright. “It would create a legal precedent were Rowling and Warner Bros to win,” he says. “If Rowling was happy with the content of the website, she cannot object to the publication of the book.”
Which brings us to the second key principle. How much control can authors exert over works that make use of their characters? Rowling’s lawyers claim the Lexicon has no creative value and contributes nothing to the readers’ understanding of the Harry Potter series. Merely rearranging facts into an alphabetical order does not turn it into a secondary, scholarly reference work.
Doing his best to demolish that argument is Anthony Falzone, a lecturer in law at Stanford Law School who advises on intellectual property. He will be representing RDR for free – the only reason the case has made it to court, as most publishers of RDR’s size don’t have the money to take on Rowling or Warner Bros. “This is a hugely important case about a third party’s right to create a new reference book that is designed to help others better understand the original work,” he says. “No one is going to buy, or indeed make sense of, the Lexicon unless they have read the Harry Potter books.
One of the stranger aspects of this case is Rowling’s claim that the publication of the Lexicon is a “significant” threat to the market for her own intended Harry Potter encyclopedia and that, as a result, the amount of money she will be able to give to charity will be seriously affected. While you can appreciate her desire to maximise her donations, you can’t help feeling a sense of overkill.
The largest ever print run for one of RDR’s titles has been 10,000 copies, while Rowling has sold 300m books worldwide; the Lexicon was due to be published last year, while Rowling has given no indication that hers is imminent and has stated she doesn’t want to be tied to deadlines. And, given the fanaticism of Harry Potter readers, you can’t imagine that many would pass up the opportunity of buying a JK book because they had already bought one by Vander Ark several years previously.
And it’s this sense of a sledgehammer being used to crack a nut that ultimately lingers. This is not the first case involving Harry Potter where legal action has either been taken or threatened. Books have either been withdrawn or substantially rewritten to comply with Rowling’s lawyers, and US booksellers were prevented from creating their own promotional Potter paraphernalia to accompany the launch of the last Harry Potter book, even though none of the offending items were to be offered for sale. Most bizarrely of all, Rowling took out a $56,000 lawsuit against organisers of a Calcutta festival for constructing a replica of Hogwarts as a carnival float.
Just about the only thing both sides do agree on is that it’s impossible to predict the outcome of the case with much confidence. “The bottom line is that no one knows what arguments will hold greater sway with a particular judge on a particular day,” says Falzone. “The only sure bet is that whoever loses will try to appeal”.
I knew this was coming, as soon as she said she was planning an encyclopedia on the Jonathan Ross show last year.† I wondered what would happen to the Lexicon site or whether maybe she would buy it or make some deal with them, but apparently not.† †She already has £545 million so it can’t be the money!† I know, I know, it’s her intellectual property yada yada yada but she could have made some deal to use what they had already collected in the Lexicon after all the hard work is already done!