J.K. Rowling's Suit Against Those Who Plan to Publish an Unauthorized Harry Potter Encyclopedia: Who Should Win?

Recently, Harry Potter author J.K. Rowling and Warner Brothers sued a small publisher that is planning to sell a lexicon/encyclopedia of her work. Commentary on the suit - such as Joe Nocera's February piece, supporting the small publisher, for the New York Times -- has played upon themes that have become increasingly familiar lately: the right of the original author to control her creative work, versus the supposed right of others to freely make use of it.

The problem with these themes, however, is that the first is a constitutional and statutory reality, and the second still is, in large part, wishful thinking.

It is completely debatable, as a policy matter, whether we ought to have a copyright regime that values equally the works of original authors and of those who create works deriving from those original authors' works. In reality, however, the legal regime we have strongly favors original authors. It is original authors for whom copyright was enshrined in the Constitution, and for whom the copyright laws were passed.

Granted, there is a "fair use" exception to the copyright laws - but it is an exception, not a default rule. Granted, too, courts have actively protected parodies under the "fair use" exception, as informed by the First Amendment. But parodies are special: They've been around since long before the Framers, and they are precisely the kind of scathing, oppositional speech as to which the author would never provide a copyright license, for any amount of money.

All in all, the fact remains, as much as many would try to deny it, that copyright law is meant to protect creativity and originality on the part of the original author, not on the part of the creator of derivative works. It's for this reason that, if we apply the "fair use" factors to the J.K. Rowling case, it's quite clear Rowling has a strong edge.

The First Factor: The Purpose and Character of the Use/Transformative Use

Courts apply four key factors in determining whether an unlicensed use of copyrighted material is a fair use. The first asks what the purpose and character of the derivative use of the original work is.

Typically, a fair use is also a "transformative" use - that is, a use that applies some creativity to the original work, rather than just excerpting it. The problem with the Harry Potter lexicon at issue, however, is that some sections of it reportedly will be more creative than others, and the court will need to evaluate the work as a whole.

Surely, for example, writing an encyclopedia section that picks out mistakes and inconsistencies in the Harry Potter books requires some creativity to author - although nowhere near as much creativity as it took to author the Harry Potter books in the first place. Moreover, like a parody, this type of encyclopedia section probably needs "fair use" protection if it is to exist at all. Few authors enjoy drawing attention to their own errors - though there are notable exceptions such as Orson Scott Card, who welcomes reader feedback to this effect, and Kurt Vonnegut, who was modest enough about his own books to assign each a grade, and include some Ds and Fs in the mix.

In contrast, creating a lexicon that simply matches words and phrases to the definitions provided in the Harry Potter books themselves requires virtually no creativity at all. And that lexicon seems to be a major component of the project. Overall, then, this factor is likely to cut largely, but not entirely, in favor of Rowling.

Accordingly, an interesting settlement here might allow a lucrative "Harry Potter mistakes" book to be written, but shut down the encyclopedia component of the project, leaving that for Rowling herself to write and perhaps also annotate.

The Second and Third Factors: The Nature of the Copyrighted Work, and the Amount and Importance of the Portion Used, in Relation to the Work as a Whole

The second factor of the analysis, looking to the nature of the copyrighted work, should cut in favor of Rowling, as her work is highly creative - exactly the kind the copyright law was meant to protect.

The third factor, however - which asks about the amount and importance of the portion of the work that is used - applies oddly here. In a sense, the lexicon steals everything and nothing. It likely will take massive amounts of text, all told, from the Harry Potter books, but it will put that text, in small chunks, in a new context, and one in which it has a very different significance for the reader. Moreover, the experience of reading through - or consulting - an encyclopedia is profoundly different from that of reading a novel.

No doubt, the amount of the Harry Potter books that is used will technically be very substantial -- meaning that this factor, too, cuts in favor of Rowling. Yet the purpose of this factor's inclusion in the fair-use test - to stop others from gutting, say, full chapters of a work, or cherry-picking its best parts - is not as strongly implicated as it might be. Thus, a judge who interprets the factor literally will see it as making the case a slam-dunk for Rowling, while a judge who looks to the factor's purpose may not be so quick to rule in her favor.

The Fourth Factor: The Effect on the Potential Market For, or Value of, the Copyrighted Work

Applying the fourth and final factor in the analysis, what effect will the lexicon have on the value of the Harry Potter books - or, importantly, of the encyclopedia/lexicon Rowling herself says she plans to write, with the proceeds to be donated to charity?

Here, once again, Rowling has an edge, but not the strongest one possible. The Harry Potter books are such a literary (and film) juggernaut, it seems unlikely that anything could cut into their market. Moreover, if fan enthusiasm continues to be as strong as it has been, it seems likely that most fans will opt for Rowling's own authorized encyclopedia, when it comes on the market, and not its unauthorized competitor - especially since Rowling's feelings about the competitor are now well known. Still, in the interim period before Rowling's encyclopedia is published, it's possible that some fans will purchase the unauthorized competitor - and then feel, when Rowling's is published, that one Harry Potter encyclopedia is enough. In sum, some market harm seems certain - but it also seems certain to be limited.

In particular, if Rowling adds some new writing - such as an introduction or character commentaries - to her own authorized encyclopedia, it may well become a must-have for Harry Potter aficionados. She possesses knowledge no one but an author can have - such as her recent revelation about Dumbledore's sexual orientation.

For all these reasons, Rowling seems likely to win her case, but not in a walkover, and perhaps with a fairly limited damages award - one that takes into account the premium readers will put on buying an authorized - and possibly author-annotated -- encyclopedia/lexicon.

Meanwhile, those looking for legal battles pitting creative Davids against soulless Goliaths ought to look elsewhere. The creativity here is virtually exclusively Rowling's, for it takes little soul to reshuffle text someone else has written. Moreover, it was not so long ago that Rowling was a David herself, relying on copyright protection to profit from her hard work to create the books in which so many readers have delighted.