Fair Use on Trial

In our meeting today with the marketing and sales folks at Duke University Press one book in particular caught my interest. Bound by Law? Tales from the Public Domain is a comic book primer on fair use doctrine for documentary filmmakers. The authors include a cartoonist named Keith Aoki, who is also happens to be a professor of law at University of California at Davis. The other two authors, James Boyle and Jennifer Jenkins, are law professors at Duke. Jenkins runs the Duke Center for the Study of the Public Domain. The reason this book caught my eye is because it’s a graphic comic book format, something that’s a departure for Duke. It has a feel like Tales from the Crypt, with the narrator/host resembling Justice William Rehnquist. The idea of the book is that there needs to be a balance between fair use and copyright, and the current rules are way out of whack. What Aoki and company are saying with this book is that we need a robust sense of fair use for our culture to survive: -- and Bound by Law “reaches beyond documentary film to provide a commentary on the most pressing issues facing law, art, property, and an increasingly digital world of remixed culture.”

I like that line about remixed culture. This comic book about fair use and filmmaking has far reaching consequences in many different fields of creative expression. My friend and colleague Roger Rapoport of RDR Books in Muskegon, MI is being sued by JK Rowling and Warner Brothers over a book he announced to publish called The Harry Potter Lexicon. Roger has gone to federal court in New York to defend himself against a suit that claims copyright infringement. The author/complier of the book, Stephen Van der Ark, runs a web site which is a resource of information about all things Harry and his magical world - http://www.hp-lexicon.org/index-2.html

JK Rowling herself admitted to using Van der Ark’s site regularly while writing her books, and her publishers at Scholastic wrote a glowing letter to Van der Ark saying how indispensable his work was to them when they were editing Harry Potter and the Goblet of Fire. Rowling seems to have a personal obsession with this lawsuit, and claims to want to do her own encyclopedia in a few years. RDR Books enlisted the lawyers at Stanford Law School's Fair Use Project to testify in their favor.

See this link from the Times of London -- http://www.timesonline.co.uk/tol/comment/leading_article/article3746609.ece

The lawsuit is ridiculous and the book is simply a guide to navigating the seven books in the Harry Potter series, which seem to get longer and longer with each passing book. Rowling has no case, and she doesn’t seem to realize that the Lexicon actually embellishes and compliments her work. It’s clear that Van der Ark is an avid fan of Rowling’s work. One of the things that Rowling was complaining about in her testimony was that Van der Ark got some of his sources wrong – for instance, a certain spell cast by one of the witch characters in the book was said to derive from the Hawaiian language, and Rowling claimed it was an African dialect. The fact that the Lexicon might be mediocre, or that it gets a few obscure points wrong does not make it a violator of copyrights! Fair use rights need to be protected in this country, and as with the poor documentary filmmaker character in the Aoki comic book coming out in September from Duke, people need to fight to protect themselves from overwrought and greedy copyright holders.