A Tight Grip Can Choke Creativity

On 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.
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Ric Francis/Associated Press
The author J. K. Rowling is suing to stop publication of a Harry Potter companion book.
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.
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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.