April 14, 2008 – J.K. Rowling made an appearance in the U.S. District Court for the Southern District of New York in Southern New York today to defend the Harry Potter series against copyright infringement. Warner Brothers and J.K. Rowling are suing RDR Books for “repackaging” the popular Harry Potter Lexicon website into a book.
At issue is how much of the Harry Potter Lexicon book is considered copyright infringement and how much is fair use. Also at issue is how much money the publisher and the author of the Harry Potter Lexicon, Steven Vander Ark, stand to make off the publication off a print version of the Harry Potter Lexicon. The case is currently underway and no verdict has been issued yet.
Note: Harry Potter Lexicon refers to the web site and Harry Potter Lexicon refers to the challenged book.
The Harry Potter Lexicon
The Harry Potter Lexicon is a web site which serves as a reference to the world of Harry Potter. The Harry Potter Lexicon contains essays about the world of Harry Potter, mistakes and inconsistencies in the Harry Potter book series, an encyclopedia of spells, an encyclopedia of potions, and detailed references to the entire Harry Potter world and its inhabitants.
Steven Vander Ark
The man behind the Harry Potter Lexicon is Steven Vander Ark. Steven Vander Ark’s effort to protect himself may be the nail in his coffin. According to the Associated Press, Steven Vander Ark had previously not pursued publication of the Harry Potter Lexicon because he was concerned about copyright infringement.
The fact that Steven Vander Ark when to great lengths to protect himself makes it appear as if he was concerned with copyright infringement, although he singed a contract with RDR Books.
One issue which seems to be missing from the discussion of the Harry Potter Lexicon case is why didn’t J.K. Rowling and Warner Brothers object to the web site itself. Why wait until the publication of a book?
According to J.K. Rowling, she herself has visited and used the Harry Potter Lexicon web site. (AP)
The argument in regards to the publication of the Harry Potter Lexicon vs. the web site version is about three things 1) content, 2) profit and 3) control. The argument being made by J.K. Rowling’s lawyers is that the content of the book takes too much of her actual words and her work. J.K. Rowling has said that while the web site contains analysis and scholarship, the print version does not. (AP) The argument is that the Harry Potter Lexicon book is simply a “repackaging” of her work.
It would seem that the same repackaged information would exist on the web site. Would WB and JK Rowing have a stronger case if they sought to have the web site shut down as well?
Profits
The other part of the argument is that RDR Books will be charging $24.95 (AP) for the book. The Warner Brothers and J.K. Rowling lawyers say this is not fair use but it is copyright infringement because RDR Books and Steven Vander Ark will be profiting from what is essentially her work. While this sounds valid, it’s also missing a key point, which goes back to the original web site.
The web site contains advertisements. With 1.5 million visitors a month (AP), it would seem that the web site is also a profit-making venture. How can you stop the publication of the book for the same reasons that have been ignored in regards to the web site?
Should the law be treating the money-making publication that much differently from the web site which contains advertisements? It is not clear how much money the web site brings in, compared to how much money the web site costs to operate. It would seem that if the web site is also making a profit, it should have been an issue for J.K. Rowling and Warner Brothers.
Fair Use and Copyright
The case should be determined by how much original material is in the Harry Potter Lexicon. According to JK Rowling, the original content and analysis of the Harry Potter world which exists on the web site does not appear in the book.
New York Times writer Joe Nocera points out, “But the law absolutely allows anyone to create something new based on someone else’s art.” (NYT)
Similar cases have involved The Seinfeld Aptitude Test and the Beanie Babies Collector’s Guide. (Citizen Law Media Project)
In the Seinfeld case, the court found in favor of the plaintiffs, ruling, “We conclude that The SAT unlawfully copies from Seinfeld and that its copying does not constitute fair use and thus is an actionable infringement.” (United States Court of Appeals, Second Circuit)
Repackaging and Organization: Transformation
While JK Rowling is claiming that the Harry Potter Lexicon book “steals `wholesale” from her work” (Bloomberg), the value of re-organization used in lexicons and “information guides” have been recognized more in the past decade, Anthony Falzone told Law Blog (Law Blog.com). Anthony Falzone is affiliated with Stanford Law School and the Fair Use Project.
In Fair Use defense, this is called “transformation.” (Wikipedia.org, Lawblog.com) Part of a fair use defense may speak to transformation, which applies when “a certain use of a work does not infringe its holder’s copyright due to the public interest in the usage.” (Wikipedia.org)
The question could come down to public interest, however, since JK Rowling has said that she will be printing her own “Harry potter dictionary” and donate the “proceeds to charity,” according to Bloomberg, it may be a moot point. Public interest could also be served by JK Rowling’s future book.
Chilling Effect?
JK Rowling and Warner Brothers have every right to protect her copyright and her work. At the same time, the existence of the Harry Potter Lexicon web site is educational, useful, and gives J.K. Rowling and Warner Brothers free publicity.
What’s also interesting is that there are other Harry Potter companion books which have published without lawsuits. The difference, apparently, as pointed out by the NYT article is that the other publishers went to JK Rowling’s representative, Christopher Little Literary Agency.
Neil Blair of the Christopher Little Literary Agency said the reason the lawsuit is begin brought against the Harry Potter Leixonc is s because the other Harry Potter companion book publishers “come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” (NYT).
Blair continued, “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.” (NYT)
At issue then seems to be control, not copyright infringement.
Final Conclusions
At issue will be the loss of an useful resources for Harry Potter fans. The court will need to weigh the educational value and value as a whole to the reading public, with how much profit loss J.K. Rowling and Warner Brothers will experience as a result of the publication of the Harry Potter Lexicon. Also at issue will be how much value the new organization of the information brings to the work, and if that value trumps the infringement on the work of the writer.
The court’s decision could also further solidify the fair use argument to create derivative works and transformative works. Or the court will go the opposite way and take a broader approach to protecting an artist’s control over their intellectual property, diminishing the concept of fair use. Either decision will have a profound effect on the future of how intellectual property can and cannot be used in the United States.
Sources
Castle Rock Entertainment Inc. v. Carol Publishing Group, 150 F.3d 132 (2d Cir. 1998),
Sam Bayard, “Rowling v. RDR Books: Harry Potter Lexicon Trial Starts Today,” Citizen Media Law Project, http://www.citmedialaw.org
David Glovin, “Rowling Testifies in Suit Against Potter `Lexicon'” Bloomberg, http://www.bloomberg.com
Larry Neumeister, “Harry Potter author testifies in lawsuit,” Associated Press
Joe Nocera, “A Tight Grip Can Choke Creativity,” New York Times
Dan Slater,”Harry Potter Lexicon Case: An FAQ,” Wall Street Journal, http://blogs.wsj.com/law/2008/04/14/harry-potter-lexicon-case-an-faq
The Harry Potter Lexicon, http://www.hp-lexicon.org
Transformation, http://en.wikipedia.org/wiki/Transformation_%28law%29
