In considering the merits of J.K. Rowling’s lawsuit against the author and publisher of the proposed Harry Potter Lexicon, the outcome may depend largely on how much context the judge considers relevant to the letter of the law. (Background on the case in this previous post.)
A Legal Opinion
FindLaw’s Julie Hilden writes about the HP Lexicon case as strictly an IP issue. She delineates two issues in the case:
- “the right of the original author to control her creative work,” and
- “the supposed right of others to freely make use of it.”
As a librarian rather than an IP lawyer I admit to getting my back up a bit at the outset of this article, based on the stated hierarchy that places creator control on a higher plane than public use and re-use. Much as some publishers might claim otherwise, Fair Dealing/Fair Use is not an inferior or less legitimate part of copyright law when compared with Creator Rights. These two elements of copyright law coexist in order to attempt a balance that is in the public interest, rewarding creative work without unduly locking it up and preventing derivative works.
In her article, Hilden delineates the “four key factors” that courts should use in determining “whether an unlicensed use of copyrighted material is a fair use.” These are interesting to me, as a non-lawyer, to consider:
- Is the use “transformative”
- Is the work creative?
- What portion of the original work is used?
- What is the impact on the market for/value of the original work?
According to Hilden, the first three of these factors cut in favour of Rowling (the third perhaps less strongly than the first two). The fourth factor, she also finds falling in favour of Rowling’s argument, although most weakly of all the factors.
This may all be correct from a strictly legal standpoint. It is true that there is little new “creative” (as in fiction, or creative writing) content added to a reference work. It is true that a reference guide will generally use much of the source content. The market value question…well, I don’t know if that one can even be argued, truly, but if all other points are found in favour of Rowling the fourth one could just limit any damages owed.
However, it is Hilden’s closing that shows how decontextualised this legal discussion really is. She writes:
“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.”
Interesting choice of words, as I am sure many colleagues in the information professions will agree. Does it require little soul to create reference material? Are bibliographers and lexicographers inherently slight-of-soul?
This year-old profile of Steve Vander Ark in a local newspaper (the Grand Rapids Press) paints him as, frankly, very soulful. Vander Ark is apparently a “prayerful” Christian who doubles as a staunch defender of the HP series against allegations of evil and witchcraft at the religious school in which he is a library media specialist. This article – written well before the Lexicon lawsuit was filed – paints Vander Ark as a thrilled reader, obsessively creating a HP reference to promote the books and draw others in to his fannish enthusiasm. Not only do other fans fawn over Vander Ark’s resources –Rowling and Scholastic also gush about their utility.
The GR Press article contradicts the idea of a lexicographer as possessing “little soul,” either in religious, moral or creative sense. What Vander Ark has done is not create fiction or new characters, but cultivate a community and stand up for values of intellectual freedom. I am no great HP fan (there, I’ve said it) but I am under the distinct impression that Vander Ark is among the fandom leaders who have greatly contributed to the success of the HP empire. Small publishing is not typically a lucrative business. I would guess that Vander Ark will be lucky if he makes the equivalent of pennies of book profit for every hour’s work he has put into the HP Lexicon – especially if Rowling does indeed compile her own more authoritative lexicon. My understanding is that Vander Ark did most of his Lexicon work online without even a book contract in sight. I have to say that it really does sound like Vander Ark undertook this project as a labour of love. Al, but does love equal soul?
What is Creativity? What is Soul?
And then there’s the question of whether, “prayerful” qualities of some individuals aside, bibliographic work, scholarly commentary, and reference work are creative; whether they have soul.
Oof. Yes, we know librarian work is frequently both behind the scenes and taken for granted. But you really feel it when someone says the work you do, organizing the world’s information and making it accessible to the masses, is soul-less.
My introduction to the bibliographic work of librarians was my supervisor in the Oberlin Conservatory Library pouring years of her time into An Index to African-American Spirituals for the Solo Voice – a bibliography that has perhaps more soul than most. I suppose it could be argued that providing an index to solo spirituals is non-creative, non-transformative, and an example of a white academic re-using creative content from the African American community. However, in a world dominated by lieder and arias, providing soloists, vocal instructors and musicologists – particularly those of African descent – with vastly improved access to music of an historically oppressed group may be a truly progressive, even creative solution to the whitewashing of the art music world.
Does HP have this elusive ‘Soul’ anyway?
Not according to Orson Scott Card, who responds to lawyer Dan Shallman’s assertion that Rowling “feels like her words were stolen” with:
“Well, heck, I feel like the plot of my novel Ender’s Game was stolen by J.K. Rowling.
A young kid growing up in an oppressive family situation suddenly learns that he is one of a special class of children with special abilities, who are to be educated in a remote training facility where student life is dominated by an intense game played by teams flying in midair, at which this kid turns out to be exceptionally talented and a natural leader. He trains other kids in unauthorized extra sessions, which enrages his enemies, who attack him with the intention of killing him; but he is protected by his loyal, brilliant friends and gains strength from the love of some of his family members. He is given special guidance by an older man of legendary accomplishments who previously kept the enemy at bay. He goes on to become the crucial figure in a struggle against an unseen enemy who threatens the whole world.”
It’s been documented that Rowling’s HP books are of questionable originality – for example, “Muggles” were previously written about in 1984 by author Nancy Stouffer, creator of characters Larry Potter and Lilly Potter.
Card further points out that Rowling herself has
“already had made personal use of Vander Ark’s work and found it valuable. Even if it has shortcomings, she found it useful.
That means that Vander Ark created something original and useful – he added value to the product. If Rowling wants to claim that it interferes with her creativity now, she should have made that complaint back when she was using it – and giving Vander Ark an award for his website back in 2004.”
A Librarian Opinion?
So…perhaps a librarian’s understanding is infused with more cultural and literary context than the typical lawyer’s understanding of the case. Returning to Hilden’s four points:
- Lexicons may well be considered “transformative” as they provide access to the literature
- Lexicography is indeed creative in that, while non-fiction, they add original value by virtue of annotation and arrangement of information from source materials
- Presumably (this is an assumption based on general practice in reference works; I have not seen the HP Lexicon manuscript) the fair use of source material is limited to small snippets well within the limitations for fair use typically applied to literary criticism and encyclopedias
- The impact on the market for/value of original works is generally to enhance their usability and value, by providing more access, more excitement, or both
Thoughts? Does your library or information type work have soul?