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After nearly five months of speculation from fans, bloggers, and legal scholars alike, a New York judge handed down a verdict in favor of J.K. Rowling (and Warner Brothers, holders of the film rights in her books) in the controversial copyright case involving “The Harry Potter Lexicon,” a fan-website-turned-unauthorized-reference-book. As our blog mentioned a couple of days ago, there were some interesting and delicate issues of copyright and fair use involved in what was ultimately a very thoughtful decision by District Court Judge Patterson. What follows is an analysis of the decision and why the court eventually said, “Avada Kedavra!” to the print version of the Lexicon.
In an attempt to summarize nearly thirty pages of “Findings of Fact,” the basic background of the case is as follows. The copyrighted works in question are, of course, the seven Harry Potter novels, as well as the two companion books, Fantastic Beasts and Where to Find Them and Quidditch Through the Ages, the “Famous Wizard Cards” contained within the WB-licensed HP videogames, and a series of fictional newsletters, all created by Rowling. “The Harry Potter Lexicon” is a popular Harry Potter fan-run website (it was previously available at hp-lexicon.org but is apparently undergoing some domain/server changes, and can now be found here) that serves as a reference source for fans, collecting and organizing all of the information from the HP books and other related resources. It is comprehensive to a nearly immaculate degree, and even Rowling had previously praised the website’s thoroughness and admitted that she sometimes used it for quick fact-checking. However, the contested work in the lawsuit was not the website, but rather “The Lexicon,” a book that drew its contents from the the website, written by the originator, owner, and operator, Steve Vander Ark. The book’s publisher, RDR Books, approached Vander Ark about the possibility of publishing a print version of the HP Lexicon. Plans for publication were well underway before Rowling learned of the book, at which point she and Warner Brothers first asked Vander Ark and RDR to cease publication of the book, and after RDR’s refusal to even delay publication so that Rowling’s lawyers could study the manuscript, filed suit on October 31, 2007.
The trial was this past April, covered extensively by the media. It really was a bit of a soap opera, between JKR’s appearance where she spoke of the theft of the work and how she was so disheartened by the entire affair that she’d been unable to write, and Vander Ark’s breakdown on the stand where he sobbed about how he’d been ostracized by the fan community. It was also the subject of much legal debate, and prominent copyright scholars came down on both sides of the issue. The Stanford Fair Use Project (founded by Larry Lessig) defended RDR Books. However, after all was said and done, the court came to the following conclusions of law.
There are two basic parts to a finding of infringement: (1) ownership of a valid copyright, and (2) copying of the original elements, which must include a showing of “substantial similarity” to the original work. The court disposed of the first part quickly, as there is no dispute that Rowling has valid copyrights. There was an issue about the newsletters and the “Famous Wizard Cards,” which were apparently not entered into evidence, so the infringement claim proceeded only in regards to the seven novels and two companion books.
The Defendants of course argued that the Lexicon was not substantially similar to the Harry Potter books. However, the court disagreed. Using a quantitative/qualitative analysis (the first component addressing the amount of the work copied, and the second addressing how much of it was protected expression as opposed to unprotected ideas or facts), the court pointed out that the majority of the Lexicon contained direct quotes, paraphrased sections, plot details, or summarized scenes from the novels. Moreover, the copying was even more substantial in regards to the two companion books, since they were so short and large portions were copied wholesale in the Lexicon.
There has been some dispute in the law over the protection of “fictional facts.” However, the court here relied primarily on the precedent set by Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., a 1998 case about a Seinfeld trivia book. A New York courtheld that the copied “facts” were actually fiction created by Seinfeld‘s writers, and therefore protected. Similarly, the “facts” in the Lexicon were Rowling’s original expression.
The court also pointed to the similarity of language, and the fact that the Lexicon contained a number of direct quotations, often without quotation marks. Also troubling were the summaries of scenes, passages that retold small portions of the novel. There is also case precedent holding that plot sumamries of television shows constitute copyright infringement, and even though the court acknowledged that the plot summaries in the Lexicon were not as detailed as those in the previous cases, it found the circumstances (including all the issues mentioned above) close enough to find that the Lexicon did infringe on Rowling’s copyright.
This finding means that RDR violated Rowling’s right of reproduction, one of the exclusive rights given to copyright holders in the Copyright Act. Another of these is the exclusive right to produce derivative works (works based upon preexisting works–like translations, arrangements, abridgements, etc., anything “recast, transformed, or adapted;” a simple example would be that a film based on a book is a derivative work of that book). Rowling alleged that RDR also violated this right, but the court ultimately disagreed, finding that the Lexicon was not a derivative work. The court mostly relied on the precedent set by a 2002 case involving a guide to Beanie Babies, which held that companion guides are not considered to recast, transform, or adapt the original works. The Lexicon is not simply recasting the books into another medium to retell the story, but rather giving the original material another purpose–to provide the reader with a better understanding of the individual elements in Harry Potter’s world.
Even though the court found that Rowling did have a legitimate case of copyright infringement against RDR, there was a defense available. RDR argued that the Lexicon was a fair use of the protected Harry Potter works.
The fair use doctrine is designed to balance the need for copyright protection and the need for others to be able to reference or build upon the work of others. Once only in the common law, the doctrine is now codified in the Copyright Act with four factors for a court to consider in determining whether the use of a work is “fair.” The court here evaluated each of these four factors individually.
I. Purpose and Character of the Use
The most recent fair use cases have determined that the most important factor is the first one–to what extent the new work is “transformative.” The court found that the Lexicon is indeed a transformative use, insofar that the purpose of the Harry Potter books is to tell a story, and the purpose of the Lexicon is to make information about the world accessible in a reference guide (basically, entertainment versus reference). However, the court noted that the Lexicon’s appropriation from the two companion books (Quidditch Through the Ages and Fantastic Beasts and Where to Find Them) was much less transformative, because the original purpose of those books is also reference. The two books have the same informational purpose as schoolbooks, even though they are fictional. Even Vander Ark stated in his testimony that the two books are essentially encyclopedias already.
However, the court pointed to the proven value of the website as a reference source (including the fact that Warner Brothers filmmakers used it extensively when making the Harry Potter films) as evidence of its transformative use, distinguishing it from the trivia guide in the Seinfeld case or guides consisting mostly of plot summaries. Moreover, the fact that the Lexicon does not offer much in the way of critical analysis or commentary does not make it less transformative; its chief function is mere reference. Still troublesome, though, is the amount of verbatim copying from the books; the use of distinctive, original language should not be necessary for a work of reference, and minimizes the transformative use, particularly when many of the longest entries contain few or no citations to the original works.
Also part of the “character and purpose” factor is whether the new work is commercial or noncommercial. In general this doesn’t come up much in fair use analysis because there haven’t been many cases where an infringing use isn’t for profit. Profit was certainly the goal here, where RDR planned to capitalize on the existing Harry Potter market, particularly since the Lexicon would have been the first companion guide published after the release of all seven novels. And again, this factor weighs partially for against a finding of fair use–for it in that a reference guide would be beneficial to the public, but also against because RDR did intend to profit at least in part from the entertainment value of the original works.
The last part of this factor concerns whether the alleged infringer acted in good or bad faith in copying the work. The court noted that RDR did delay intentionally in responding to Rowling’s communications, but that this was not enough to constitute acts of bad faith. Similarly, there was no evidence that Vander Ark acted in bad faith, particularly since he did not obtain use material in his writing that wasn’t available to the public.
II. Amount and Substantiality of the Use
The second factor of a fair use analysis should actually be considered along with the “transformative” component, because the question here is ultiamtely whether the amount of the original work copied is reasonable in relation to the transformative purpose. Rowling argued that far more of her work was appropriated than what should have been necessary to create a reference source.
Though the court recognized that it was necessary for the Lexicon to make considerable use of the works, and was hesitant to decide for an author how much material is “reasonably necessary” to create a useful reference, it found that the verbatim copying and close paraphrasing of language from the books weighed against RDR in this factor. The court pointed to specific examples where the Lexicon copied Rowling’s original expression even when it should not have been necessary, such as describing an ordinary object that exists in the real world, like a mirror. The Lexicon was inconsistent in its use of copyrighted material, some entries being appropriate shorter descriptions, but others completely retelling the storyling rather than reporting fictional facts, especially when citations where missing, failing to guide the reader in where to find the information. And again, the court pointed to the companion books in particular, stating that because of the barely transformative purpose of the Lexicon in regards to them, the amount copied weighed very heavily against fair use.
III. Nature of the Copyrighted Work
Courts have already settled that fair use is more likely where the original work is factual rather than fictional, as creative works are generally given more protection. Rowling’s “highly imaginative” work goes to the very core of copyright protection, and thus this factor weighs against a finding of fair use.
IV. Market Harm
The final factor considers the effect of the new work upon the market (both current and potential) or value of the original work. For example, derivative works often fare badly on this factor because they could interfere with what the original creator may eventually decide to market or develop. Here, Rowling presented expert testimony that the Lexicon would negatively impact the sales of her own planned encylopedia (which she has stated her intention of writing in the past, and of which Vander Ark was aware). However, the court pointed out that because of its earlier finding that the Lexicon is not a derivative work, it is actually allowed to compete against Rowling’s encyclopedia. Rowling does not have an exclusive license to develop reference guides; her plans to create one does not automatically make them derivative works.
The court did note that there are potential derivative markets, however, such as the songs and poems contained in the books. Rowling could reasonably license the print publication of these items, or even musical production, which could be harmed by the fact that the Lexicon reproduces them verbatim.
In terms of the Harry Potter novels themselves, the court found no reason to believe that the Lexicon would impair sales. The Lexicon is for a different purpose and would not serve as a substitute for reading the books. However, again the court differentiated the two companion books, finding that the Lexicon could very well harm their sales. Because the works are already reference, are so short, and the information in them has been copied nearly wholesale into the Lexicon, consumers may have no reason to purchase them if they already have the Lexicon. This weighs against fair use.
Though certainly not faced with a cut-and-dry situation, the court held that the four factors when considered together failed to support a finding of fair use. Though the first factor did support transformative use, considered with the third factor in regards to how much copying is necessary to achieve that use, the balance tips against fair use. Moreover, both the creative nature of the works and the potential market harm weighed against fair use.
The court was careful to note, however, that this finding does not apply to reference guides in general, and in fact suggested that they should be “generally encouraged” by copyright law since they provide a legitimate benefit. However, these guides should not be able to (to borrow Rowling’s term) “plunder” the original works. The bottom line here is that the Lexicon simply copied too much of Rowling’s protected expression, far more than would be necessary to create a valuable reference.
So the finding was that the Lexicon is infringement, and does not have fair use as an available defense. The court then had to consider what relief Rowling should be granted. An injunction (stopping the infringing work from being published) does not automatically follow a finding of infringement. However, the court found legitimate sources of harm from the potential publication to Rowling: (1) Rowling testified that if the Leixon were published it would destroy her desire to continue with plans for her own encyclopedia (which would harm not only Rowling, but the potential readers of the encylopedia as well as the chartible organizations that would receive the proceeds), (2) the Lexicon would harm the sales of the two companion books, because readers would have no reason to purchase both, and (3) because of the extensive verbatim copying, publication of the Lexicon could diminish Rowling’s copyright in her original language by resulting in conflicting assertions of copyright between Rowling and Vander Ark.
The court ultimately did issue a permanent injunction against the publication of the book, and also awarded $6,750 in statutory damages, the very minimum allowed under the statute ($760 for each work infringed–the seven novels plus two companion books).
Even though this case was a defeat for the Lexicon itself, because of the judge’s thoughtful decision, it is not a severe blow to fair use or to the reference/companion/guide market. Even a lawyer from the Stanford Fair Use Center, who defended RDR, recognized that the court vindicated important principles in regards to reference guides. In fact, this decision may prove to be a valuable resource for the creators of these sorts of guides who want to stay on the right side of copyright law. In most cases, these creators (and Vander Ark probably fell into this category as well, and simply got in over his head) have no desire to infringe upon copyright in any way, as companion books are often works of love, homages, intended to supplement and enhance the original work rather than harm it. Because the decision gives concrete examples of where the Lexicon crossed the line, it can help others avoid the same mistakes in the future.
And in fact, the decision does not cut so broadly as to limit these types of books much at all. In many cases, the weight tipped against fair use not because of the novels but because of the companion books. If the Lexicon had not copied from these books that were already reference materials, it is quite possible that the case could have come out differently, or at least would have been much closer. In fact, based on the praise that the court has for the transformative nature of a good deal of the Lexicon, it seems plausible that it could be edited in such a way that it would be a fair use of the material (for example, taking out the copying from the companion books). However, it is unclear whether RDR or Vander Ark would be willing to go through the legal wrangling to make this happen. Vander Ark, for his part, has already expressed his desire to move on, already planning to publish another book, In Search of Harry Potter, a travel memoir about his experiences traveling to locations similar to those in the books.
Interestingly, though the decision covers many of the issues that legal scholars wrote about following the trial, it also minimizes one that many fans who debated the issue found to be intuitively important: commercial versus noncommercial use. For many, the intuition is that it isn’t “fair” for Vander Ark to profit from Rowling’s work with a book in print form, but that there is no problem with the not-for-profit Lexicon website. This may ultimately simply be a matter of copyright owners’ tolerance than the actual law, though like other not-for-profit fan ventures such as fan fiction, the copyright implications of a website like the Lexicon have never been litigated.
Overall, it seems as if this case had the best possible outcome for social benefit in general by both vindicating authors who stand up for their copyright protection and providing a carve-out for the reference book market. After all, copyright is all about incentive, and the only disinsentive provided by this opinion is against wholesale copying. The lesson for guide creators is ultimately to be careful how much you take and from where you take it. Though the outcome was unfortunate for RDR and Vander Ark on this particular project, perhaps this decision will be a valuable resource for their future attempts to create companion guides, for Harry Potter and beyond.
— Casey Fiesler
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