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Harry Potter and Fair Use

Once upon a time, a man named Vander Ark was devoted to the world of Harry Potter. He created an online reference source, often quoting or paraphrasing directly from J.K. Rowling's books; the source was widely appreciated, including by Rowling herself. Then he decided to publish it in book form. J.K. Rowling sued, and he defended himself with the copyright doctrine of Fair Use. And he lost. The judge found that he had taken too much of Rowling's creative work.

The decision went against a Fair User, but it wasn't a decision that was all bad for Fair Users. In fact, according to copyright guru Peter Jaszi, Professor in the Washington College of Law at American University and a co-designer of the Center's Fair Use projects, it was "good news for filmmakers, video makers, teachers and other creative communities, even though it wasn't a victory for Mr. Van Ark." He explained, "The decision makes clear that seriously intended follow-on products that build on popular culture are transformative -- and therefore highly eligible for Fair Use treatment The biggest problem wasn't the defendant's use of the Harry Potter books as such, but his cribbing from the plaintiff's own copyrighted reference books, which (by definition) is a far less transformative activity."

It also reminds us, Jaszi noted, that quantity matters -- as the Fair Use codes generated by the Center and the Washington College of Law emphasize. The key to transformative Fair Use is using the amount of material reasonably necessary to achieve the value-added purpose. Judge Patterson, at least, was satisfied that the Lexicon went beyond this. "Also, the decision puts significant emphasis on the importance of 'good faith' as a factor in Fair Use determinations," he noted. "It reminds us of the dangers that could flow from being sneaky rather than up front in asserting your rights." This isn't by far the first decision to stress transformativeness as a key value in deciding what is Fair Use. The trend has been consistent for more than a decade, and recently a decision in the Second Circuit regarding the Bill Graham Archives made a bold and clear case for transformativeness at the center of Fair Use reasoning."All in all, it's a mixed result -- but one on which champions and practitioners of Fair Use can and should build," said Jaszi.