ARL: Fair Use the Winner in “Harry Potter” Copyright Case  

Andrew Albanese -- Library Journal, 10/9/2008 12:39:00 PM

• Fair Use a "big winner."
• Courts understand fair use better than legislators
• Fair use needs defenders

The Association of Research Libraries (ARL) this week posted a thought-provoking paper by lawyer Jonathan Band lauding the recent decision by Judge Robert Patterson, who ruled in the high-profile “Harry Potter case” that school librarian Steven Vander Ark’s Harry Potter Lexicon infringed author J. K. Rowling’s copyright. “Although J. K. Rowling prevailed in the litigation,” Band writes, “the big winner actually was fair use.” The loser of course, was Vanderark and his Michigan-based publisher RDR, which was enjoined from publishing its encyclopedia. ARL officials said they found Patterson’s decision so thoughtful, they asked Band to write about its merits for librarians

Lessons from the decision

Band asserts that Patterson’s decision in the high profile case offers three broad lessons: First, fair use is alive and well, Band writes. “The decision makes clear that expression can be incorporated into transformative works, so long as the expression is reasonably necessary for achieving the transformative purpose.” Even though RDR’s fair-use defense failed, he notes, the court assessed only the minimum amount of statutory damages, a total of $6750, when he could have awarded up to $1.35 million. “Presumably the judge awarded the minimum rather than the maximum in part because the defendant had the reasonable belief that [the Lexicon’s] use of the Harry Potter works constituted fair use.”

Second, courts get fair use. “Judge Patterson unquestionably understands the policies that underlie the fair-use doctrine, and the importance of striking the proper balance between protection and the dissemination of information,” Band observes. “Indeed, the decision demonstrates once again that the federal judiciary understands fair use better than Congress, which repeatedly advances legislation that encroaches on fair use and the public domain.”

Deep pockets

The third lesson, Band writes, is that fair use can thrive only if defendants can afford to litigate long enough to get their day in court. “Plaintiffs in copyright cases often have very deep pockets,” Band writes, noting that Rowling, one of the wealthiest authors in history, was joined by Warner Brothers to sue Vanderark and the small RDR.

“Fortunately for the Lexicon’s publisher, the Fair Use Project of Stanford Law School’s Center for Internet and Society participated in its defense,” he adds. “Public interest ‘law firms’ such as the Fair Use Project and the Electronic Frontier Foundation play a critical role in leveling the copyright-litigation playing field to ensure that courts have the ability to consider the merits of assertions of the fair-use privilege.”

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