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Harry Potter and the Copyright Act: Have the Courts Finally Waved a Magic Wand by Defining Airf Use for Secondary Authors Volume 16 Issue 2 Article 5 2009 Harry Potter and the Copyright Act: Have the Courts Finally Waved a Magic Wand by Defining airF Use for Secondary Authors Meg Reid Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Meg Reid, Harry Potter and the Copyright Act: Have the Courts Finally Waved a Magic Wand by Defining Fair Use for Secondary Authors, 16 Jeffrey S. Moorad Sports L.J. 291 (2009). Available at: https://digitalcommons.law.villanova.edu/mslj/vol16/iss2/5 This Casenote is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Jeffrey S. Moorad Sports Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Reid: Harry Potter and the Copyright Act: Have the Courts Finally Waved Casenotes HARRY POTTER AND THE COPYRIGHT ACT: HAVE THE COURTS FINALLY WAVED A MAGIC WAND BY DEFINING FAIR USE FOR SECONDARY AUTHORS? I. INTRODUCTION: "BUT... YOU'RE WIZARDS! YOU CAN Do 1 MAGIC! SURELY YOU CAN SORT OUT - WELL - ANYTHING!" Unlike works of fiction, which contain clearly defined protago- nists and antagonists, the line between good and evil in the legal realm is often blurred. Since she first began publishing the Harry Potter series in 1997, author J.K. Rowling has been involved in sev- eral lawsuits claiming copyright infringement. 2 In the most recent lawsuit involving the Harry Potter series, Warner Brothers Entertain- ment, Inc. v. RDR Books, Rowling and Warner Brothers Entertain- ment ("Warner Brothers") mounted a legal challenge under one of 3 the most nebulous portions of Copyright Act, the fair use defense. In this suit, Warner Brothers challenged a Harry Potterfan's publica- tion of a reference guide to the Harry Potter series, alleging that pub- lication of this guide constituted copyright infringement of Rowling's work.4 In response, Harry Potter fan, Steven Vander Ark, pursued his "defenses and affirmative defenses of copyright fair use under 17 U.S.C. § 107, copyright misuse, and unclean hands."5 Af- ter weighing the fair use factors in light of the purposes of current 6 copyright law, the court ruled in favor of Warner Brothers. 1. J. ROWLING, 1HARRY POTrER AND THE HALF-BLOOD PRINCE 18 (2005). 2. See Lawrence Van Gelder, Hogwarts in India Challenged, N.Y. TIMEs, Oct. 12, 2007, available at http://www.nytimes.com/2007/10/1 2/arts /12arts-HOGWARTS ININBRF.html (discussing unrelated lawsuit involving Harry Potter series). 3. See Warner Bros. Entm't, Inc. v. RDR Books, 575 F. Supp. 2d 513, 517-18 (S.D.N.Y. 2008) (explaining plaintiff's claim brought under 17 U.S.C. § 101); see also Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (explaining that plaintiff claimed defendant committed copyright infringement). 4. See Warner Bros. Entm't, Inc., 575 F. Supp. 2d at 517, 521 (indicating action brought by plaintiff and describing how defendant's work may infringe on plain- tiff's work). 5. Id. at 518. 6. See id. at 554 (concluding that plaintiffs had established copyright infringe- ment and that defendant had not proved affirmative defense of fair use). (291) Published by Villanova University Charles Widger School of Law Digital Repository, 2009 1 Jeffrey S. Moorad Sports Law Journal, Vol. 16, Iss. 2 [2009], Art. 5 292 VILLANOVA SPORTS & ENT. LAW JouRNAL [Vol.[ 16: p. 291 As presently enacted, the Copyright Act seeks to promote sci- 7 ence and arts by granting exclusive protection for creative works. The Copyright Act's fair use clause seeks to alleviate some of the otherwise harsh effects of the Act.8 The fair use clause states, In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.9 This Casenote will explore the court's application of the Copy- right Act in Warner Brothers Entertainment,Inc. v. RDR Books and the impact that this landmark decision will have on copyright law. Sec- tion II discusses the history and purpose of copyright law.10 It then fully discusses the concept of copying and the four fair use factors.'I Sections III and IV provide a comprehensive analysis of the court's reasoning in Warner Brothers Entertainment, Inc.12 Section V then ex- plores the long-term impact that this decision may have on one of the most problematic areas of copyright law, the fair use defense.' 3 Finally, Section VI provides cautionary recommendations for those authors maneuvering within the evolving copyright framework. 14 7. See U.S. CONST. art. I, § 8, cl.8 ("[P]romot[ing] the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclu- sive Right to their respective Writings and Discoveries"). 8. See MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.05 (2008) (discussing mitigating effect of fair use). 9. Copyright Act of 1976, 17 U.S.C. § 107 (2008). 10. For a further discussion of the fair use factors, see infra notes 78-115 and accompanying text. 11. For a further discussion of the history and purpose of copyright law, see infra notes 53-77 and accompanying text. 12. For a further discussion of the court's reasoning, see infra notes 117-184 and accompanying text. 13. For a further discussion of the potential impact, see infra notes 186-193 and accompanying text. 14. For a further discussion of recommendations, see infra notes 188 and ac- companying text. https://digitalcommons.law.villanova.edu/mslj/vol16/iss2/5 2 Reid: Harry Potter and the Copyright Act: Have the Courts Finally Waved 2009] HARRY POTTER AND THE COPYRIGHT AcT II. BACKGROUND: "THE TROUBLE IS, THE OTHER SIDE CAN Do MAGIC Too... "15 Since 1997, J. K. Rowling has published seven books in the Harry Potter series. 16 The hugely popular series chronicles the devel- opment and adventures of Harry Potter, a young wizard at the Hogwarts School of Witchcraft and Wizardry.17 The series explores "a fictional world filled with magical spells, fantastical creatures, and imaginary places and things."1 8 Rowling holds a U.S. copyright for each of the seven Harry Potterbooks.' 9 Following the phenome- nal success of the books, Warner Brothers obtained the exclusive film rights for the entire series.20 Six Harry Potter films have been released to date, and each of these films is subject to a copyright. 2' Additionally, Rowling has published three derivative companion books to the series, the proceeds from which have been donated to charity. 2 2 The court explained that "[n]either of the companion books [was] written in narrative form; instead each book chroni- cle[d] and expand[ed] on the fictional facts that unfold in the Harry Potterseries." 23 Since 1998, Rowling has repeatedly expressed her future intention to publish a "Harry Potter encyclopedia" to ben- efit charity, after the series is complete. 24 This charitable writing, "is expected to reflect all of the information in the Harry Potter se- 15. J.K. ROWLING, HARRY POTTER AND THE HALF-BLOOD PRINCE 18 (2005). 16. See Warner Bros. Entm't, Inc. v. RDR Books, 575 F. Supp. 2d 513, 518 (S.D.N.Y. 2008) (noting Rowling's series of books and adventures of series' main character, Harry Potter). 17. See id. ("Written for children but enjoyed by children and adults alike, the Harry Potter series chronicles the lives and adventures of Harry Potterand his friends as they come of age at the Hogwarts School of Witchcraft and Wizardry and face the evil Lord Voldemort.") (citations omitted). 18. Id. (citations omitted). 19. See id. (naming each book in series and fact that Rowling "owns a United States copyright in each"). 20. See id. (discussing commercial success of Potter series). "The books have won numerous awards, including children's literary awards and the British Book Award." Id. 21. See id. (indicating that due to success of series, books were made into films). 22. See id. at 519 (reciting facts of case); see also Avra Bossov, JK. Rowling's Tales of Beetle the Bard Released Today, EASTSIDE ONLINE, Dec. 4, 2008, http:// www.eastside-online.org/entertainment/j k-rowlings-tale-of-bettle-the-bard-re- leased-today/ (discussing release to benefit charity). 23. Warner Bros. Entm't, Inc. v. RDR Books, 575 F. Supp. 2d 513, 519 (S.D.N.Y. 2008). The first companion book provides a history of "quidditch," an imaginary sport featured in the Harry Potter series. Id. The second is an encyclope- dia of the fictional beasts and beings of the Potter universe. See id. (noting subject of Fantastic Beasts and Where to Find Them). 24. See id. (acknowledging Rowling's stated intent to publish accompanying encyclopedia). Published by Villanova University Charles Widger School of Law Digital Repository, 2009 3 Jeffrey S. Moorad Sports Law Journal, Vol. 16, Iss. 2 [2009], Art. 5 294 VILLANOVA SPORTS & ENT. LAW JOURNAL [Vol. 16: p. 291 ries[,]" supplemented with new material.25 Preparations for the en- 26 cyclopedia are underway.
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