She Can Cry All She Wants But That Doesn’t Mean She Has A Case

There has been a lot of hoopla about the case against the authors of the Harry Potter Lexicon. Teary fans throw curses at this evil, evil fan who dared to make J.K. Rowling cry. In case you’re out of the loop here’s the story: the guy who runs the fansite the Harry Potter Lexicon decided to publish the contents of his site in a book. He’s had this site a long time and Rowling has even expressed her approval for it in the past. What’s changed now is that Rowling wants to publish her own Harry Potter encyclopedia and isn’t too keen about the competition. So she has brought her pack of lawyers to bear on the young man for copywrite infringement.

I am not a lawyer but I do work in a publishing house that has jumped through legal hurdles to publish a Harry Potter related book so I would like to comment on the ways this lawsuit should fail.

Many of the fans are arguing that a dictionary is just cutting and pasting from her books and selling it as his own. Rowling herself on the stand called it “outright theft.” Creating a dictionary involves more than cutting and pasting. The editorial process of indexing and organizing each word is lengthy and not to be trivialized. Furthermore, if you take the time to visit the website (www.hp-lexicon.com) you will see that the content is original. For example, (from the site).

“banshee – Rating Unknown (PA7, GF21, FB)
A Dark creature with the appearance of a woman with floor-length black hair and a skeletal, green-tinged face. Its screams will kill. Seamus Finnigan is particularly afraid of banshees (PA7). The Bandon Banshee was supposedly defeated by Gilderoy Lockhart (CS6) but was actually defeated by a witch with a hairy chin (see CS16). The singer Celestina Warbeck performs with a backing group of banshees (DP).”

Clearly this is not copied from the text of the book but a wholly original definition of the word “banshee”. I suspect they will have to double-check that some of it isn’t lifted from Merriam Webster but it’s obviously not from the book. If there some portions that are too similar, Vander Ark, who runs the site, would obviously change them. He himself cried on the stand. After all, he has devoted a lot of commitment to this project because he is a fan. The lawsuit is not saying, “some of this needs to be changed.” They are saying he has no right to publish such a book, regardless of the wording.

Rowling claimed on the stand that one reason she is suing over this particular derivative is it is sloppily written. “‘Alohomora,’ a spell that opens doors in Harry Potter’s word, does not come from ‘aloha,’ the Hawaiian salutation, she said on the stand. Rather it derives from a West African term meaning favorable to thieves, she said.” But that’s the beauty of capitalism: she can write her own version, and do it better! There is no law against writing poorly.

The copywrite law is to protect from someone else selling a book that steals sales of your book, for example, condensing it or changing the names and selling what is essentially the same product cheaper. Obviously, this book wouldn’t take sales away from any of the existing HP books. It may take sales away from the Encyclopedia that she hasn’t written yet–there’s the rub!

It took many years for the Harry Potter Lexicon to evolve to the place it is at today, with the help of numerous writers. Thus it may be as good, at least from an organizational perspective, as Rowling’s own Encyclopedia. Dictionaries, after all, don’t call for much in the way of creativity and one can hardly expect her to spend eight to ten years writing it. I don’t believe that she would be making such a fuss unless she thought it to be an actual threat to her own encyclopedia.

But that book hasn’t been written. She is trying to apply the copy write of her existing book to the sales she thinks she will lose on her forthcoming book. While this is unlikely, I can see her up at night worrying that her book won’t be as comprehensive as the Lexicon that already exists. Which, when you come down to it, means that she has gotten used to having no competition and feels that she should not have to compete when it comes to characters she created. Unfortunately for her, the U.S. (I believe the Lexicon is an American site, though I may be wrong) system loves competition. Yes, she created those stories. But if someone else wants to write another book based on her characters, they can. If someone wants to analyze the stories, they can. If someone wants to make a reference book, they can.

And isn’t it better that way? When you step out of the situation and look at it with a clear head, why shouldn’t fans be able to create works that are derivative and complementary to the originals? They won’t draw sales away from the original books. If anything, they will give readers something to cling to once the series is over. The fan-written sequel to Mrs Brisby and the Rats of NIMH was not nearly as good as the original but it in no way diminishes the classic it is based on. Does the estate of Dr. Seuss suffer if I write a dictionary of the delightfully silly words from his books? Does Stephen King suffer if you publish an index of all the characters that have died in his books? Of course not.

But no! I can hear the fans crying what if she wants to write that book! He has stolen her right to write the book!

Hogwash. There is no copy write protection from a book that doesn’t exist yet. And thank goodness: now Rowling claims she is so distressed that she fears will never be able to write it. So she would have her book or no book, and possibly no book anyway. What a perfect example of how fickle writers are. It is a good thing the laws are set up as they are; this way maybe we will get something. And maybe we’ll get two books! Or three! And if Rowling can muscle up the strength to face the competition she will undoubtedly write it better and more critically.

Rowling’s lawyers have been getting more and more aggressive lately. She has passed over many opportunities to sue and I believe this makes her feel like she can have her pick of the litter because she passed up all those other chances to litigate. Personally, I have always been a fan of Rowling (as a person, not just her books) but her claims that this case has forced her into some kind of dramatic writer’s block disgust me. I suppose she’ll have to take to drugs like all the other great plagued writers out there. Or maybe stop surrounding herself with lawyers and yes-men that coddle her. If only writers could sue their way out of writer’s block we’d be swimming in literature!