As academics might be said to live and thrive by consideration of fair use, we need to perk up when this vital legality goes to court, and all the more so when it is a good knock-down case of goliath celebrity taking on struggling Davidesque scholar. As most readers will know, with works of “criticism, comment, news reporting, teaching, scholarship, and research,” to use the example of the U.S. legal system, authors can in the name of fair use reasonably cite others’ published work without violating copyright.
Fair use, in this sense, represents the larger society’s recognition that learning and criticism have a special contribution to make to the public good, which warrants the researcher and reviewer trespassing on property’s otherwise scared ground. Yet what is no less fair about this use of another’s work is how it allows the words of the one being cited to stand up to the criticism. The fairness permitted by fair use enables readers to judge for themselves, at least to a degree. That is, the law not only protects the scholar citing others’ work, but encourages the scholar to be fair and, in that sense, a better scholar.
But what about the courtroom warring of celebrated author against learned violator? In a Lower Manhattan courtroom on April 14th, J.K. Rowling, author of the Harry Potter franchise, testified that Steven Jan Vander Ark’s planned Harry Potter Lexicon violated her copyright, leading her and Warner Brothers to sue the intended publisher RDR Books. Turning to a fair-use defense, according to the New York Times review of the court filings, the publisher claimed that Mr. Vander Ark’s book “provides a significant amount of original analysis and commentary.” One of the publisher’s lawyers, Anthony Falzone, executive director of the Fair Use Project at Stanford Law School pointed out that “for hundreds of years everybody has agreed that folks are free to write companion guides.” The Times did have a bit of fun with it all, and rightly so, what with tears and near-tears on the witness stand from the two principals in the case, as well as apologies for naming characters in the Harry Potter books whose name should not be spoken.
But the case also gave off a bit of a chill over the fair use issue. The Times noted that “in a number of cases, Ms. Rowling and Warner Brothers have pushed publishers of other planned Harry Potter reference books in the United States to withdraw them from the market, though without filing suit.” The chill lies in the “though.” It suggests that the fair use defense is being ignored by Ms. Rowling and Warner Brothers, and that publishers are just saying no to what would otherwise be an entirely legal response to one of the major literary phenomenon of the age, and one that could only foster an interest not only in this literary work, but the value and pleasure of scholarly inquiry.
If Harry Potter leixcons seem far removed from the real work of scholars and researchers, it has to be said that Mr. Vander Ark, a librarian and as such the scholar’s ultimate colleague, is fighting the good fight, our fight, in taking the stand in defense of fair use. And kudos, must go, as well, to RDR Books for not rolling over in the face of the suit.
Now I also have to say that as a former school teacher and professor of education, I will forever remain indebted to Ms. Rowling for rekindling literature’s spark among the young worldwide. Still, I am distressed by her failure to realize the vital relationship between the pleasure of reading and scholarly inquiry. Actually, Rowling was fine with it, when Vander Ark’s The Harry Potter Lexicon was no more than a freely available website. She used the website herself, and only came to object when the lexicon was about to be published. I am also delighted, then, by Ms. Rowling’s respect for open access to research. But this celebrity endorsement of open access apart, fair use is necessary for scholars in all mediums and price points.
And this is why we must await the ruling to be issued by Judge Robert B. Patterson on the Rowling v. RDR Books case with all the anticipation that readers of Ms. Rowling’s books have shown toward each installment of the Harry Potter series. It is only a bit of an exaggeration to say that our future, as opposed to Harry’s, hangs on the outcome.