INTRODUCTION

HARRY POTTER & THE ORDER OF THE COURT:
THE J.K. ROWLING COPYRIGHT CASE AND THE QUESTION OF FAIR USE

            The adventures of wizard-in-training Harry Potter may have ended, but the drama continues.  In the latest episode, the central locale has shifted from the stately halls of Hogwarts to the stately halls of federal court in Manhattan.  In Manhattan, however, there are no wizards in sight, only muggles (ordinary people) including among them a judge and attorneys who must grapple with the issues presented in a lawsuit brought by Harry Potter author J.K. Rowling. 

            The case is of interest to Harry Potter fans and the general public, including attorneys, writers and bloggers. 

            Harry Potter & the Order of the Court discusses the case, including the court’s decision and its broader implications.  

The trial was highlighted by J.K. Rowling taking the witness stand, her first time appearing in a courtroom.  Her dramatic testimony -- offering insights into her creative process and her emotional attachment to the Harry Potter series -- is included, both direct examination and cross-examination. 

            Beyond the star presence of Ms. Rowling, the case is of general interest because it involves an important but little understood aspect of copyright law: the doctrine of “fair use.”  Fair use refers to situations where one is allowed to use material from a copyrighted work without seeking permission from the author.  The doctrine has taken on added importance in the Internet Age where almost all of us “publish” in one form or another --be it through creating web pages, writing blogs, or uploading content. 

            Copyright law applies not only to what we write on paper but also to what we publish online, in the form of text, graphics, sounds, or video.  And as authors or publishers (the Internet tends to blur the distinction), we often feel the need to quote, closely paraphrase, or otherwise use material others have created.  This is where fair use comes in, and it is an important concept to be familiar with, understanding the privileges it offers as well as its limitations. 

 The Copyright Act says uses may be considered “fair” when they are done for such reasons as criticism, comment, news reporting, teaching, or scholarship and research.  The act states further that in determining whether fair use applies in a given situation, courts are to  

  consider whether the use is of a commercial nature or for nonprofit educational purposes.  Also to be considered is the portion used in relation to the copyrighted work as a whole and the effect of the use on the potential market for the original work.

           The distinction between what is a fair use and what constitutes infringement is often unclear and not easy to define.   When confronted with the fair use issue, courts must closely examine the particular facts of the case before them, as did the judge in the J.K. Rowling case.  We will look at specific examples where the courts have found fair use, and examples where they have not. 

We begin our discussion of fair use by taking a close look at the issue as it presents itself in the recently concluded J.K. Rowling case.  In the lawsuit, Ms. Rowling sought to prevent the publication of an encyclopedia based on her copyrighted Harry Potter material.  The publisher of the proposed encyclopedia characterized it as a literary reference guide that he had every right to publish under the fair use doctrine.  The case is important given the enormous popularity of the Harry Potter books and their legion of fans around the world.  These fans are generating extensive commentary and scholarship on all things Harry Potter on innumerable fan websites, and in print as well.  Also the case speaks to the issue of the extent to which reference guides and other compilations of copyrighted material are permissible under copyright law.

After discussing the specifics of the J.K. Rowling case, we will examine the broader implications of the fair use issue as it affects many of us in our day-to-day writing activities, both online and off.   We will go over specific examples as to how courts have ruled on the issue in different factual situations. 

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