J.K. Rowling has maintained an admirably strong grip on the creative lives of her fictional creations and their merchandising over the years, for instance insisting on complete control over the writing and casting of the movies and ensuring that Coca Cola put money into literacy projects around the world in exchange for putting HP on their bottles. But the news today that she is suing a publisher for planning to bring out an encyclopedic companion to her books is alarming. Does she really fear that her book will bomb if somebody else ‘steals’ the idea first? Why shouldn’t fans – or even critics – write freely about her work?
The growth of fan fiction, blogging and the exchange of views on favourite books and characters has been a wonderful development of creative reading on the web – and done wonders for the rampant cult of Hogwarts, so it’s a big shame J.K.R hasn’t taken a bold stand for reader interaction with her (copyright) world.
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J. K. Rowlings should be red with shame. Her books borrow characters and themes willy nilly from tales stretching back many centuries. And yet here she is threatening to unleash lawyers on writers who dare to devote themselves to explaining to HP fans that heritage as well as her underlying plots and themes.
But for the moment, we should consider the possibility that Rowlings is simply doing what no successful writer should ever do, listening to lawyers eager to run up billable hours at her expense. The lawyers of the Tolkien estate did precisely that, running up a bill that much have approached a quarter of a million dollars in an unsuccessful bid to block publication of my book-length Lord of the Rings chronology, Untangling Tolkien. And their case was so poor and so dependent on intimidating me, that they bailed out just before a Seattle federal court judge would have ruled on concurrent motions for summary judgment. Three months later the judge made it clear that they never had a credible lawsuit by dismissing it “with prejudice.”
What tempted the Tolkien estate’s lawyers to sue is what’s tempting Rowling’s lawyers and that’s why they’ve picked a New York, Second Circuit venue. It’s a dreadful 1998 Second Circuit ruling known in the trade a “Castle Rock” after the producers of the Seinfeld TV show. In a ruling almost universally denounced by law journals, the court claimed that the creator of a fictional world owns that world to the extent that no one else can write books describing it in any way.
That broke with a long pattern in copyright law that infringement only occurs if the “heart” of a fictional work is taken, such that those who read it are likely to feel no need to read the original, rather than that they read it to supplement their understanding of the original by turning to a source independent of the author. Books that give useful background for readers have been common for over a century, as illustrated by guides to operas or to the movies of famous actors or directors. And to maintain their objectivity, those books should not need to be authorized by anyone.
In Castle Rock, the court admitted that nothing of significance was taken. The book in question, Seinfeld Aptitude Test (SAT), was a collection of trivia questions about the series. Nothing it mentioned mattered and buying the book made no sense for anyone who hadn’t watched the TV show almost compulsively. The court nevertheless dismissed all prior tests for copyright violation and ruled that a fictional author’s control was total. Except for narrow areas like literary criticism, which focuses on the author rather than his story, only an author could make money off his tale. And make no mistake about it, the key push behind the reasoning was to maximize the opportunity for copyright holders to find other ways to make money off their product, ways that no prior court (or legislature) had considered protected by copyright.
The result is what legal scholars call a chilling effect. Fighting a lawsuit mounted by a deep-pocketed client like the Tolkien estate or Rowlings takes more money than most authors or small publishers have. The legal counsel of one university press told me that because of Castle Rock, his press was avoiding all books dealing with popular contemporary fiction. That’s sad, because it means that few such books will be written until the copyright has expired long after the author and anyone who knew him is dead or because no one is interested in the book anymore.
Behind all this is a problem the Second Circuit presents to copyright law. Because it is located in New York, the court is heavily influenced by the presence of powerful copyright holders at NYC publishers. That causes it to tilt very heavily in their interest rather than, as the Constitution requires, in the public interest. In the late 1980s, a Second Circuit court issued a ruling about biographers using material that had not been previously published so chilling that Congress had to amend copyright law to fix a problem that, left uncorrected, would have made publishing anything other than authorized biographies difficult.
Congress seems too distracted by other matters to fix the problems created by Castle Rock. And until it is corrected, it will be risky for anyone not as bold, stubborn and legally saavy as I was to publish independent commentaries of fictional works. And that is bad.
Rowling’s own book providing a reference for her tales is likely to be quite valuable and already has the advantage in the marketplace of being definitive. But in legal and scholarly terms, she is writing about her own books and is thus not likely to display independent, objective judgment about matters like plot consistencies or character plausibility. That’s why we need books like this one now being contested and why we probably need a court case that, once and for all, declares the Castle Rock to be bosh, or, as a more sensible court in the Midwest put, in “frivolous,” having no basis at all in law.
At one point, my dispute with the Tolkien estate had that potential. A lawyer told me that if I won at the district court level (certain) and appeals level (virtually certain in the Ninth Circuit), the Second Circuit and the Ninth Circuit would be in direct conflict and my dispute would be fast tracked to the US Supreme Court. That didn’t happen. Although not admitted by the opposing side, my win was so overwhelming, the other side had no heart to fight it.
Perhaps, if Rowlings doesn’t have the good sense and decency to end this dispute, her lawyers will be foolish enough to push the case long enough that Castle Rock will be tossed into the legal dustbin and no longer lurk in background, discouraging authors from writing about popular fiction and publishers from publishing their books.
An author wanting to keep other writers from getting published. Shame on you Rowlings!
–Michael W. Perry, Inkling Books, Seattle
This isn’t really about reader interaction, as I understand it, though it certainly has the potential to affect such interaction. The Leaky Cauldron, an HP-fan news site, has posted excerpts from the law suit, plus a timeline.
It’s not difficult to find better coverage than the article you linked. Here’s Publishers Weekly’s take, for example.