Rowling vs. fair use.

Of course it's been all over the news how J. K. Rowling won a lawsuit, thus preventing The Harry Potter Lexicon by librarian Steve Vander Ark from going to press. Vander Ark and his publisher, Roger Rapoport, are appealing.

I was especially interested to see an article on the case in the September 15th Publishers Weekly that quotes intellectual property attorney Richard Dannay of Cowan, Liebowitz & Latman, who discusses the decision's potentially disturbing effect on reference works, as the nature of the latter demands "detailed information" about their subjects. What the PW article does not note is that Dannay is the son of the late Frederic Dannay, aka one-half of Ellery Queen, so I see Richard Dannay as possessing an interesting view of the situation that is more multifaceted than the single perspective of attorney.

As a writer, I can understand Rowling's right and wish to benefit from her own work. But as someone who also has edited ten scholarly journals and is editing a reference series, I worry about the effect of the decision on fair use and comment. Will it stifle literary criticism and free speech? Will authors use the decision as a club in an effort to control what is said about them and their work? Will writers and researchers, fearing litigation, not pursue that exciting new line of inquiry about a subject and fall back on well-trodden intellectual ground, or only research writers who are safely dead? Authors may argue for researchers to pay a permissions fee to quote extensively from their work, but scholarly works are generally not bestsellers, academics usually do not receive advances, and academics often have to pay high fees from extremely slim purses to reproduce images and other materials. Thus, an academic author or independent scholar could easily find himself or herself in a financial hole after publishing a reference work, which hardly creates a conducive environment to produce such works and therefore would limit the avenues of solid information about a subject.

According to the PW article, Stanford Law School's Fair Use Project is thinking along the lines that I have raised, because it is assisting Rapaport with legal representation.