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On Friday, I speculated here at JETLawBlog about whether RDR Books would appeal Judge Patterson’s decision against them, particularly if they consider editing The Lexicon first. After all, the detailed decision made it very clear what parts of the Lexicon are particularly problematic when it comes to unlawful use of J.K. Rowling’s work.
It appears that the publishers may be doing just that. According to Vander Ark, the Lexicon’s writer, he’s “always been very much willing to work with [Rowling and Warner Brothers to] try to see what can be done.”
Since the decision clearly carves out room in the fair use doctrine for literary reference books and companion guides, it seems plausible that a book like the Lexicon could pass legal muster… but as for that manuscript itself, it will probably take a great deal of editing in order to push it over the line of infringement. This would probably involve, to start, (1) taking out a great deal of the material about the two Harry Potter companion books, (2) editing out most of the use of Rowling’s specific language, and (3) adding a large number of citations.
However, given that RDR has had a lot of ideological support, the appeal may be just as much a matter of principle. They now have both Stanford and Harvard on their side, since Harvard’s Berkman Center’s Citizen Media Law Project has teamed up with a non-profit organization, Right to Write, that was formed to help cover RDR’s legal expenses.
Meanwhile, Rowling’s agents have asked to see the manuscript of Vander Ark’s upcoming book, In Search of Harry Potter, a travel memoir about his trips to locations mentioned in the novels. Taken at face value, it seems highly unlikely that this work could have any sort of copyright issues associated with it. Perhaps Rowling (or her lawyers) are simply paranoid at this point, because books like this are pretty much the reason why fair use exists.
– Casey Fiesler
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