In an effort to answer the question of “When does a character stop being the property of its creator?” or “How popular does it have to be to become Fair Use?” Stanford’s Law school will defend the publisher of the Harry Potter Lexicon against Warner Brothers and author JK Rowling.
According to the press release:
RDR Books contends it has the right to publish the encyclopedic reference book under the fair use doctrine, which safeguards the use of copyrighted material so long as it is used transformatively and does not damage the market value of the original work.
“The Harry Potter Lexicon draws material and inspiration from the Harry Potter series but is an entirely new piece of work,” said David S. Hammer, co-counsel for RDR Books. “It is a companion to Rowling’s work, not a substitute for it. No one is going to buy the Lexicon instead of a Harry Potter book, or instead of seeing a Harry Potter film.”“This book is a reference work based on more than seven years of research by a distinguished volunteer team of librarians and academics,” explained co-counsel Julie Ahrens, associate director of the Fair Use Project. “Fair use protects scholars’ rights to create such companion guides. It simply is not the case that authors can exploit copyright law to prevent analysis and commentary on their work.”
It will be interesting to see how the ruling goes on this. I think it’s one thing if this was a literary criticism of the body of work. That sort of thing has been done to authors and their work for decades. But if courts rule in RDRs favor, any group of people could beat an author to publishing a concordance of their work, as long as one of them is an academic. That might not be good news for authors of popular series, such as J. D. Robb’s or even J R Ward.