You’ve probably seen the news stories: Harry Potter creator J. K. Rowling and Warner Brothers are suing out-of-work Michigan librarian Steven Vander Ark, mastermind behind the on-line Harry Potter Lexicon. Rowling openly enthused about the painstaking reference work to her children’s fantasy world when it was just a website–in fact, she’s admitted to using it to research some of her sequels, and her effusive blurb still appears on the site. So why is she suing now?
Apparently it’s because Vander Ark got a crummy $10,000 advance no advance at all from some tiny publisher to produce a book version of the Internet lexicon. Now that the on-line purity of the exercise has been sullied by the stain of commercial enterprise, it’s keeping Rowling up nights. And forcing her into court.
I’m surprised I haven’t seen much substantive comment on-line about the case. Just dueling who-will-win? quotes in the major news outlets, and, on the big Potter fansites I’ve looked at, outpourings of sympathy for “poor Jo,” crying her eyes out over her betrayal by this terrible, terrible man. Also: mean-spirited outrage directed toward Vander Ark. What kind of fan is he, that he didn’t drop the project like a hot Portkey the second She told him to?
Books like The Harry Potter Lexicon are nothing new. When I was a kid, I had a bunch of unlicensed glossaries like these on my shelves: Robert Foster’s Complete Guide to Middle-Earth, Bjo Trimble’s Star Trek Concordance, etc. (Both of these books may later have been approved by their respective marketing empires, I’m not sure, but they were strictly fan-pub back then.) Even today, you can walk up to the TV/Movies shelf in a Barnes & Noble and find cash-in essay collections and reference works analyzing Lost, Firefly, The West Wing, and other hits. All these books profit by putting the Big Media Brand Name front and center on their covers–without the pop-culture teat, they wouldn’t sell a single copy. Profiteers, right, “Jo”? Burn them all!
Rowling and Warner’s lawyers are claiming that the Harry Potter lexicon cannot possibly be “fair use,” since it’s so heavily derivative of her books. It’s not just infringement–it’s plagiarism. (Rowling also called the lexicon “lazy” and “sloppy¯ on the stand, which is pretty rich, given the fact that she’s on the record as having relied on it in the past. Take one look at that site and see if “lazy” and “sloppy” are the words that come to mind. Probably not, unless you’ve seriously misspelled “scarily comprehensive” and “borderline obsessive/compulsive.”)
I haven’t seen the book version of the lexicon–and maybe no one ever will–but, judging by the website alone, the plagiarism claims are silly. Direct quotes from the books are rare, and are used only in epigrammatic fashion. Rowling may be referring to the fact that the Lexicon does faithfully describe facts and events from her series, and at length, but that’s an inevitable feature of any reference book. The literary references all look legitimate to me, as if due care has been taken to rephrase them away from Rowling’s language. Vander Ark’s entry on one “Crockford, Doris,” for example, reads
A witch in the Leaky Cauldron on July 31, 1991, who was just so delighted to meet Harry Potter that she came back more than once to shake his hand. (PS5)
While the relevant passage in PS5 (that’s Harry Potter and the Philosopher’s Stone, chapter 5) says
Harry shook hands again and again–Doris Crockford kept coming back for more.
I think that just rearranging the rabbit-warren of references and allusions in Rowling’s complex series into an alphabetical “encyclopedia” format would qualify Vander Ark’s work as “transformative”–one of the legal tests for fair use–but notice that he’s done more than that. Even in the simple “Doris Crockford” entry above, he’s added chronology, by calculating the date her meeting with Harry took place. (This is a fact that’s found nowhere in the actual Harry Potter books, though it can apparently be deduced with some certainty.) Other entries add interesting speculation on etymology, tie together related story or character threads, or even add literary analysis. No matter what Rowling said on the stand, this is not just her work, appropriated “wholesale and verbatim.”
Which brings us to the core of the issue: should an author own these transformative penumbrae of her own work, or should the public? I’ve blogged at length about the interesting case of Castle Rock v. Golub, in which the judge ordered a publisher to destroy every copy of a Seinfeld trivia book written without the show’s approval.
Castle Rock (and the Twin Peaks-related case that gave its decision precedent) is almost certain to come into play in the eventual Harry Potter decision. I’m hoping some of its reasoning is actively reversed, or at least pruned back–it just doesn’t reflect reality in an age where communities of people like to more actively participate in their pop-cultural obsessions. But let’s say the decision stands. Could a judge buy into Castle Rock and still find Vander Ark’s book legit? I think so, and here are the three rationales I’d use.
- The Seinfeld trivia book lost out because, the judge decided, it had ripped off the very essence of the show, by borrowing its funny allusions and improbable plot details. Seinfeld was, famously, a show about nothing (nothing, that is, but funny allusions and improbable plot details). Harry Potter, though, is an epic fantasy saga. It’s not just fun-to-say names of spells and silly jellybean flavors. Vander Ark did borrow that stuff, sure, but he mostly left the essence of the book (character development, warmth, suspense, mystery) alone.
- The Seinfeld trivia book lost out because, the judge decided, it effectively salted the earth for any future, officially licensed Seinfeld trivia book. You’ve seen one, you’ve seen them all. This is patently not true of Vander Ark’s book. Does anybody really think that owning a fan lexicon, even a very complete, well-intended one, would stop someone from eventually buying’s Rowling’s own Official Harry Potter Encyclopedia, which lets slip new plot details (who else is gay?!) and replaces fan speculation with “canon”?
- The Seinfeld property was a trivia book; The Harry Potter Lexicon is a reference tool. Much though I may love them, I’ll freely admit that society doesn’t need sitcom trivia books. Academia doesn’t need them. But society does need reference tools. People study influential books, and, like it or not, the Harry Potter series is now, partially on its own merits but mostly for its amazing popularity, part of that canon. Scholarly dissertations are going to be written on these things for decades, for crying out loud. Would you be surprised to walk into a university library and see on its shelves a book providing a historical chronology of Faulkner’s Yoknapatawpha County books, or a concordance to all the tangled character threads in a Thomas Pynchon novel? I wouldn’t. Frankly, I’d be surprised if they didn’t exist. There’s a reason why the law explicitly provides scholarly exemptions for many copyright restrictions.
In a free society, it’s good that people can talk and write freely about art. Good things come out of a society being able to talk and write freely about art–whether the artist likes it or not. Fan-published “derivative works”¯ are a tiny legal niche, but they’re not an entirely unimportant one. Maybe you’re a Gilmore Girls fan who’d love to see an index annotating and explaining the show’s dense web of cultural references, or a U2 fan working on a complete concordance to their lyrics, or a Spider-Man fan with an issue-by-issue chronology of his Marvel Comics-owned “life”¯ on your website. This stuff is going to keep disappearing if the legal precedents keep following the Twin Peaks and Castle Rock path.
Or maybe you’re a Harry Potter fan. Especially if you’re a Harry Potter fan. You shouldn’t be crying your eyes out for the corporate lawyers and the Edinburgh billionaire. Don’t drink the Butterbeer-flavored Kool-Aid! You should be rooting for the librarian.