Tuesday, September 09, 2008

J.K.Rowling wins case v Harry Potter Lexicon

J.K. Rowling has won her case against the prospective publishers of a print version the Harry Potter Lexicon. The NYT has a brief report on the case.

Interestingly the judge, Robert P. Paterson Jr., concluded that the Lexicon was not a derivative work but he found for Ms Rowling on the basis of the substantive similarity of the Lexicon to the Potter novels. So the Harry Potter Lexicon would appear to be so different from the Harry Potter novels that it is not a derivative work but simultaneously so much like the originals that it is substantively similar. The judge says (apologies for the formatting):

"Although it is difficult to quantify how much of the language in the Lexicon is
directly lifted from the Harry Potter novels and companion books, the Lexicon indeed
contains at least a troubling amount of direct quotation or close paraphrasing of
Rowling’s original language. The Lexicon occasionally uses quotation marks to indicate
Rowling’s language, but more often the original language is copied without quotation
marks, often making it difficult to know which words are Rowling’s and which are
Vander Ark’s."

And he goes on to list a whole series of direct copying/paraphrasing and concludes:

"Plaintiffs have shown that the Lexicon copies a sufficient quantity of the Harry
Potter series14 to support a finding of substantial similarity between the Lexicon and
Rowling’s novels. The Lexicon draws 450 manuscript pages worth of material primarily
from the 4,100-page Harry Potter series.15 Most of the Lexicon’s 2,437 entries contain
direct quotations or paraphrases, plot details, or summaries of scenes from one or more of
the Harry Potter novels. As Defendant admits, “the Lexicon reports thousands of
fictional facts from the Harry Potter works.” (Def.’s Post-trial Br. at 35). Although
hundreds pages or thousands of fictional facts may amount to only a fraction of the
seven-book series, this quantum of copying is sufficient to support a finding of
substantial similarity where the copied expression is entirely the product of the original
author’s imagination and creation...

The quantitative extent of the Lexicon’s copying is even more substantial with
respect to Fantastic Beasts and Quidditch Through the Ages. Rowling’s companion
books are only fifty-nine and fifty-six pages long, respectively. The Lexicon reproduces
a substantial portion of their content, with only sporadic omissions, across hundreds of

The Castle Rock court held that a trivia book which
tested the reader’s knowledge of “facts” from the Seinfeld series copied protected
expression because “each ‘fact’ tested by [the trivia book] is in reality fictitious
expression created by Seinfeld’s authors.” Id. It follows that the same qualitative
conclusion should be drawn here, where each “fact” reported by the Lexicon is actually
expression invented by Rowling...

Furthermore, the law in this Circuit is clear that “the concept of similarity
embraces not only global similarities in structure and sequence, but localized similarity in
language.” Twin Peaks, 996 F.2d at 1372...

Plaintiffs have established a prima facie case of infringement...

Given that the Lexicon’s use of plot
elements is far from an “elaborate recounting” and does not follow the same plot
structure as the Harry Potter novels, Plaintiffs’ suggestion that these portions of the
Lexicon are “unauthorized abridgements” is unpersuasive. Second, and more
importantly, although the Lexicon “contain[s] a substantial amount of material” from the
Harry Potter works, the material is not merely “transformed from one medium to
another,”... By condensing, synthesizing, and
reorganizing the preexisting material in an A-to-Z reference guide, the Lexicon does not
recast the material in another medium to retell the story of Harry Potter, but instead gives
the copyrighted material another purpose. That purpose is to give the reader a ready
understanding of individual elements in the elaborate world of Harry Potter that appear in
voluminous and diverse sources. As a result, the Lexicon no longer “represents [the]
original work[s] of authorship.” 17 U.S.C. § 101. Under these circumstances, and
because the Lexicon does not fall under any example of derivative works listed in the
statute, Plaintiffs have failed to show that the Lexicon is a derivative work...

To the extent that Defendant seeks to provide a
useful reference guide to the Harry Potter novels that benefits the public, the use is fair,
and its commercial nature only weighs slightly against a finding of fair use...

The Court is
not persuaded, however, that the acts of RDR Books, which do not amount to more than
intentional delays in responding to Plaintiffs’ communications from counsel, constitute
acts of bad faith...

The Lexicon’s verbatim copying of such highly
aesthetic expression raises a significant question as to whether it was reasonably
necessary for the purpose of creating a useful and complete reference guide. While the
exact quantity of verbatim copying and paraphrasing in the Lexicon is difficult to assess,
the instances identified by Plaintiffs amount to a substantial enough taking to tip the third
factor against a finding of fair use in view of the expressive value of the language...

The Lexicon is thus
unlikely to serve as a market substitute for the Harry Potter series and cause market harm...On the other hand, publication of the Lexicon could harm sales of Rowling’s two
companion books. Unless they sought to enjoy the companion books for their
entertainment value alone, consumers who purchased the Lexicon would have scant
incentive to purchase either of Rowling’s companion books, as the information contained
in these short works has been incorporated into the Lexicon almost wholesale...

The fair-use factors, weighed together in light of the purposes of copyright law,
fail to support the defense of fair use in this case. The first factor does not completely
weigh in favor of Defendant because although the Lexicon has a transformative purpose,
its actual use of the copyrighted works is not consistently transformative. Without
drawing a line at the amount of copyrighted material that is reasonably necessary to
create an A-to-Z reference guide, many portions of the Lexicon take more of the
copyrighted works than is reasonably necessary in relation to the Lexicon’s purpose.
Thus, in balancing the first and third factors, the balance is tipped against a finding of fair
use. The creative nature of the copyrighted works and the harm to the market for
Rowling’s companion books weigh in favor of Plaintiffs...

Ultimately, because
the Lexicon appropriates too much of Rowling’s creative work for its purposes as a
reference guide, a permanent injunction must issue to prevent the possible proliferation of
works that do the same25 and thus deplete the incentive for original authors to create new

Since the Lexicon has
not been published and thus Plaintiffs have suffered no harm beyond the fact of
infringement, the Court awards Plaintiffs the minimum award under the statute for each
work with respect to which Plaintiffs have established infringement. Plaintiffs are
entitled to statutory damages of $750.00 for each of the seven Harry Potter novels and
each of the two companion books, for a total of $6,750.00...

For the foregoing reasons, Plaintiffs have established copyright infringement of
the Harry Potter series, Fantastic Beasts & Where to Find Them, and Quidditch Through
the Ages by J.K. Rowling. Defendant has failed to establish its affirmative defense of fair use. Defendant's publication of the Lexicon (Doc. No. 22) is hereby permanently enjoined, and plaintiffs are awarded statutory damages of $6,750.00"

In addition, in laying out the facts of the case the Judge paints Roger Rapoport, the president of Defendant RDR Books, rather than Steven Vander Ark, the originator of the HP Lexicon, as the main driving force behind publishing and marketing a print version of the guide. Apparently Vander Ark had specific concerns in early meetings with Rapoport that a print version of the lexicon might infringe Rowling's copyrights.

One final point to note for now is that the judge seemed to place a lot of emphasis on Ms Rowling's testimony in court, in finding the publication of Vander Ark's lexicon would do her irreparable injury.

"Regardless, even if irreparable injury is not presumed, Plaintiffs have presented
sufficient evidence that such injury would result from Defendant’s infringement in the
absence of relief. First, Plaintiffs have established that publication of the Lexicon will
cause irreparable injury to Rowling as a writer. Rowling testified that if the Lexicon is
published, it would destroy her “will or heart to continue with [writing her own]
encyclopedia.” (Tr. (Rowling) at 54:9-12.) She further testified that if the Lexicon is
published—giving “carte blanche to . . . anyone who wants to make a quick bit of
money” by drawing freely from her works and opening the doors to “a surfeit of
substandard so-called lexicons and guides”—she would have much less incentive to write
her own book. (Tr. (Rowling) at 54:4-12.) By deterring Rowling from writing her
planned encyclopedia, publication of the Lexicon would also result in harm to the
charitable organizations that would receive the royalties from the sale of the book and the
reading public who would be unable to enjoy such a book. (Tr. (Rowling) at 55:1-5.)"

Update: The NYT and other places now have longer pieces on the case. Mike Madison's perspective in particular is worth reading in full. As is Groklaw's.

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