Transformative Bubbly

Can there be such a thing as too much free champagne? This year's Orion Publishing party was a traditionally lavish affair in another exotic London setting.

In 2006 the champers flowed at the Royal Academy, where nervous authors pretended to recognize all the room's famous paintings even if secretly only sure about the Laughing Cavalier. In 2007 we tippled in the echoing Victoria & Albert Museum lobby, with a monster chandelier from the Cthulhu Mythos poised ominously overhead: more and more, as the evening bubbled on, its tentacles seemed to writhe. This year it was the Royal Opera House bar, roughly the size of a cathedral. I don't know how I found my way home afterwards. The Underground was badly out of focus, which was surely Ken Livingstone's fault.

My admission ticket to these boozy affairs, a Gollancz nonfiction book on the Harry Potter phenomenon, must be long past its sell-by date. At least I wasn't sued by J K Rowling and Warner Bros – the fate of a planned book edition of the on-line Harry Potter Lexicon. After mentioning this here in February, I heard from Lexicon editor Steve Vander Ark (SVA).

That SFX column worried that, since the publishers RDR Books had implied their Lexicon would simply reprint the website, the vast amount of direct quotation from JKR made it a suicidally dodgy proposition. The quotes go far beyond any reasonable "fair use" allowance. The free on-line Lexicon is allowed to exist only through JKR's indulgence, which doesn't extend to a print edition to be sold for profit.

But SVA says: "The book is not simply a cut and paste of the Lexicon website." True: I've now seen the proofs. Everything has been edited down. The Dumbledore entry – my test case – has fewer than 70 words of direct quotation as opposed to the website's several thousand. So is the printed Lexicon legally in the clear? Tricky question.

My book was safe because it was mainly new critical commentary about JKR's plotting techniques. She herself says: "criticism or review of Harry Potter's world ... would be entirely legitimate". Ironically, condensing the Lexicon to a straight A-Z listing may have made it more vulnerable, because the website's original critical essays have been dropped from the intended print edition. I'm slightly miffed, incidentally, that RDR's court filings cite my very different book for its "especially striking similarities" to the Lexicon.

The word at the heart of the legal wrangle is "transformative" – no, nothing to do with Polyjuice Potion. At least in US law, derivative works are protected by the fair-use doctrine if you extract something creatively new from the original, like a critical analysis or a parody. SVA's side insists that the work he and others did to index the wizarding world in the Lexicon is obviously transformative. JKR and her supporters insist that this mere rearrangement or regurgitation of her work as alphabetical entries is obviously not transformative. Certainly the Lexicon contains an awful lot of paraphrase of descriptions in the novels. The smart money seems to be on JKR/Warner, who have the big guns and bank accounts. Still, there's considerable dissent and RDR is pushing itself as the poor underdog in "this David and Voldemort battle". Equating JKR to The Noseless One? These are fighting words.

As could be predicted by veterans of SF fan feuds ("All fandom will be plunged into war!"), the case caused uproar in Harry Potter web circles. Many devout fans were shocked by SVA's change of stance, since he'd firmly stated – until persuaded otherwise, presumably by RDR – that it would be illegal to market such a book without the blessing of JKR. Others sympathize with his new position, that her wish to have no printed rival to her planned Potter Encyclopedia is "a huge power grab on her part and from everything I can tell, not legal." A New York Times op-ed piece backed the Fair Use Project, now giving legal support to RDR, against "copyright hogs like J K Rowling". Her loyalists were duly outraged. One result of the sometimes vitriolic controversy was that next year's UK Harry Potter convention, Sectus 2009, got cancelled.

Which side will eventually celebrate with a triumphal popping of champagne corks? Only God and Dumbledore know for sure. In my imagination I hear a highly paid legal voice: "Being as this is US intellectual property law, the most powerful weapon in the copyright world, and would blow your head clean off, you've got to ask yourself a question: Do I feel transformative?"

David Langford is now stocking up on popcorn for the Tolkien estate's lawsuit against New Line Cinema.