The Judge's Order and the Rising Phoenix: The Role Public Interests Should Play in Limiting Author Copyrights in Derivative-Work Markets
| Author | Christine M. Huggins |
| Position | J.D. Candidate, The University of Iowa College of Law, 2010; A.B., Dartmouth College, 2007 |
| Pages | 02 |
J.D. Candidate, The University of Iowa College of Law, 2010; A.B., Dartmouth College, 2007. I would like to thank my colleagues, Joseph Miller, Cassie Peterson, Cynthia Boyle, and Matthew Hoffman for their superb edits; Professor Christina Bohannan, for her helpful comments; and my parents, Jim and Kim Huggins, and Ryan Winters for their love and support.
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On September 8, 2008, the U.S. District Court for the Southern District of New York ruled that defendant Steven Vander Ark's ("Vander Ark") published Lexicon-describing the creatures, characters, objects, events, and places that existed in plaintiff J.K. Rowling's ("Rowling") Harry Potter novels-violated copyright law and was not fair use. This decision confronted the tension between copyright, which strives to protect individual property interests in order to promote progress in the arts, and fair use, which strives to protect the rights of the public to build upon preexisting works and recast them in a new light.1 A key factor to the court's decision that Vander Ark's Lexicon did not constitute fair use was the fact that Vander Ark's use was for commercial gain, and therefore, would interfere with a preexisting market for derivative works written or licensed by Rowling.2
The case of Rowling versus Vander Ark was David-and-Goliath-like in proportion. CNN noted the two authors' disparate positions: "Rowling is a billionaire and Vander Ark is a mere muggle: a librarian. . . . [T]he expected salary for a typical librarian in the United States [i]s $53,861. But Rowling says it is not about the money, it's about control."3 That is precisely what this Note will explore: the dynamics of control within copyright law and the rationales and justifications for the current legal paradigm.4 Today, Page 698 copyright law determines what is considered fair use and what violates copyright protections. The law weighs the public interests to determine who has access to the cultural marketplace and who is denied participation. The law determined in the case of Rowling versus Vander Ark that an author who has sold more than 140 million copies of Harry Potter novels in the United States alone has the legal right to stop an unknown author from selling 10,000 copies of a published Lexicon because it might harm her marketplace interest.5 Taking a step back, one must ask, is this what the framers intended when they gave Congress the authority "[t]o promote the Progress of Science and useful Arts"?6 At what public cost are we promoting individual-author property interests? At what point must creative monopolies give way to broader cultural participation? Indeed, it is not just about the money; it is about access, participation, and an inherent sense of fairness and proportionality.7
Vander Ark's print Lexicon was a culmination of his Lexicon website. Since 1999, Vander Ark collected and organized information from the Harry Potter books into an online Lexicon for fans to use.8 Rowling, her publishers, and Warner Brothers Entertainment9 all used Vander Ark's website and praised him for his creation. Rowling spoke highly of Vander Ark's online Lexicon: "'This is such a great site that I have been known to sneak into an internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter.'"10 In July 2005, Vander Ark Page 699 received a note from a senior editor at Scholastic, the American publisher of the Harry Potter series, thanking him:
"[F] or the wonderful resource [his] site provides for fans, students, and indeed editors & copyeditors of the Harry Potter series," who "referred to the Lexicon countless times during the editing of [the sixth book in the series], whether to verify a fact, check a timeline, or get a chapter & book reference for a particular event."11
In September 2006, when Warner Brothers invited Vander Ark to the set of The Order of the Phoenix, the film's producer "told Vander Ark that Warner Brothers used [his] Lexicon website almost every day" while filming.12Finally, in July 2007, while visiting Electronic Arts' studios, the licensed producer of the Harry Potter video games, Vander Ark "observed printed pages from the Lexicon covering the walls of the studio."13
The fact that no one brought a copyright suit against Vander Ark's online Lexicon indicates that Rowling, her publishers, Warner Brothers, and Warner Brothers' video-game licensees considered the online Lexicon to be a fair use of her novels. It further indicates that they were not threatened by the online Lexicon and were more than happy to use the website as a resource for capitalizing on the Harry Potter market. Why then, did Rowling file suit when Vander Ark decided to publish the fruits of his online labor in a print-version Lexicon? The answer is that Rowling herself planned to write an encyclopedia to the Harry Potter series.14 She also feared that Vander Ark's Lexicon might be a substitute in the marketplace for her two companion books to the Harry Potter series.15 The court held Vander Ark's Lexicon was not a fair use of the Harry Potter series because even though Vander Ark's published Lexicon would not compete with the already-published Harry Potter novels, it would compete in the market for Rowling's companion books, her proposed encyclopedia, and her rights to license future derivative works.16 While weighing the fourth factor for the fair-use test ("the effect of the use upon the potential market for or value of the copyrighted work"17), the court reasoned that Vander Ark's Lexicon would "impair the market for derivative works that Rowling is entitled [to] or likely to license."18 Page 700
Initially, it seems fair that Rowling should have the sole right to publish future works, such as an encyclopedia, that rely almost exclusively on her original Harry Potter novels as a source. As the court observed, even though Vander Ark's use of Rowling's fictional facts and quotations in his Lexicon was only a fraction of the seven-book series, this "copied expression [was] entirely the product of the copyright-holder's imagination and creation."19When considering the publication of Vander Ark's Lexicon in light of Rowling's proposed encyclopedia, the law clearly favors and protects Rowling's right to develop subsequent works based on her novels over Vander Ark's right to enter the cultural marketplace.20 However, it is important to question at what point this current copyright-law paradigm overshadows the public's interest in allowing new authors to recognize a consumer demand and capitalize on that demand.21 The facts clearly Page 701 indicate that Vander Ark's Lexicon was a valuable resource in the course of creating, editing, and producing profitable books, movies, and videogames.22 Vander Ark even made a modest profit from his online Lexicon by posting various advertisements on his site.23 Rowling did not bring a copyright suit for this online use. But, what if Vander Ark had charged site users to use his online Lexicon? What if his profit was substantial and not modest? Would Vander Ark's online Lexicon be protected under the fair use doctrine? Given the recent decision in the Harry Potter case, it seems that the fair use doctrine would not protect Vander Ark's online Lexicon (if Rowling perceived it to be as profitable and as competitive as his published Lexicon).
This Note will address the costs and benefits of the current copyright-law paradigm. This paradigm protects primary authors' property interests by creating disincentives for secondary authors to recognize a public demand for a derivative work in the cultural marketplace and to capitalize on that demand. Part II introduces the current paradigm as reflected in the development of copyrights and the doctrine of fair use. It also uses the Harry Potter case to illustrate the conflicting interests that threaten to undermine the purpose of copyright law. Part III sets forth the interests copyright protection serves, specifically the author's property interest and recognition interest in his or her creations. Part IV discusses the interests served by fair use. Part V weighs the costs and benefits of these competing interests and concludes that in order to create a more efficient copyright-law paradigm, Congress needs to expand fair-use protections to counter the expansiveness of current copyright protections or it needs to redefine the scope and method in which society will protect authors' rights in their works-either with a tort-liability remedy or an antitrust definition of marketplace harm.
The theory of copyright law stems from an historical legal paradigm that seeks to encourage artistic invention by allowing authors to make an exclusive profit on the fruits of their labor, while simultaneously disallowing Page 702 creative monopolies by restricting copyright protection to a limited period of years.24
American copyright law is rooted in English copyright law, specifically the Statute of Queen Anne, which was enacted in 1710 and is generally cited as the first modern copyright law.25 This Statute granted copyright protection to existing book titles for twenty-one years and offered new book titles protection for fourteen years with the possibility of renewal.26 After Parliament enacted this Statute, however, it was...
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