Even a wizard can't predict outcome of 'Potter' case

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Three days of trial, two armies of lawyers and the testimony of one billionaire author doesn't change this bit of Dumbledorian wisdom: When it comes to fair use law, nobody really knows anything.

Certainly, Steven Van der Ark and RDR Books have little idea whether a murky bog of legal doctrine designed to balance free speech with the rights of copyright holders allows them to publish "The Harry Potter Lexicon," an encyclopedia that consists mostly of words written by "Harry Potter" author J.K. Rowling. Attorneys for Rowling and film partner Warner Bros. are similarly uncertain when they argue that free-riders like Van der Ark can't simply cut and paste her words, add a little commentary and call it fair use. Even Judge Robert Patterson, who will soon decide whether to issue an injunction against the book, twice interrupted the trial to beg for a settlement, saying his ruling could swing either way.

That's because fair use is one of the most frustratingly wishy-washy areas of entertainment law. You want to crib from someone else's copyrighted work to create your own? Congress asks that you first consider four factors: the purpose and character of the use; the creative nature of the copyrighted work; the amount of the work taken; and the effect of the use on the market for the work. Sounds straightforward, but in practice this "totality of the circumstances" test provides only the most basic guidance because any one factor can outweigh the others. The result is uncertainty, which breeds lawsuits that lead to hotly contested trials like the Potter punch-out.

"It's really close," says Loyola Law School entertainment law professor Jay Dougherty. "The big question is whether the 'Potter' compilation will be found to be 'transformative.' Does he add new expression to the work? Or is he using the work for a different purpose?"

During the trial in New York last week, both sides seemed to agree that the "Lexicon" distills and synthesizes Rowling's work. The battle centers on what additional material Van der Ark has added and how much is required to squirt past fair use scrutiny. On the latter issue, even trained copyright wizards acknowledge that fair use cases are so subjective and fact-specific, they provide little help for evaluating future scenarios.

"The reason why there are few cases directly on point is because for hundreds of years people created all sorts of reference guides almost entirely unrestrained by copyright law," says Anthony Falzone, the Stanford fair use guru who argued the "Potter" case for the defendants.

Perhaps, but for every case allowing fair use, another seems to side with the rights holder. In 1993, for instance, an appeals court ruled a "Twin Peaks" reference guide containing copyrighted elements was not a fair use. Similarly, a "Seinfeld" trivia game ran afoul of copyright law despite a vigorous fair use argument. And the Nation magazine lost at the Supreme Court when it excerpted 300 words from former president Gerald Ford's unpublished 20,000-word memoir.

Are any of these cases analogous to Rowling's predicament? Maybe, maybe not. Few people are likely to buy the Lexicon instead of the actual "Potter" books, of course. But shouldn't Rowling be able to sell her own encyclopedia if it's going to contain 90% her own words? More importantly, when Tom Cruise Scientology videos are bouncing around the Web seemingly unrestrained by copyright law and blogger Perez Hilton is scribbling on copyrighted photos and calling it transformative, wouldn't publishers and rightsholders both benefit from some clarity on fair use law?
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