Harry Potter Lexicon Found to Infringe J.K. Rowling’s Copyright
By Miriam Weiler – Edited by Evie Breithaupt
This week, Judge Robert P. Patterson of Southern District of New York, granted a permanent injunction against Defendant RDR Books (“RDR”) and awarded statutory damages to Plaintiffs Warner Brothers Entertainment, Inc. and J.K. Rowling (“Warner Bros.” and “J.K. Rowling”) for the infringement of Rowling’s Harry Potter books. In this long awaited decision, the court ruled that RDR’s plan to publish “The Lexicon,” an A-to-Z reference guide to Harry Potter facts written by Steven Vander Ark, infringed upon Rowling’s famous series and two of her other works, Quidditch Through the Ages (2001) and Fantastic Beasts and Where to Find Them (2001).
There was no dispute that J.K. Rowling owned the copyright to the Harry Potter series, the film rights of which had been licensed to Warner Bros., and that Steven Vander Ark had originally copied from the books to create an online reference source called “The Harry Potter Lexicon.” The court applied the Ringgold test for substantial similarity, finding that Vander Ark copied a quantity and quality of material sufficient for infringement when he developed the website into a book to be published by RDR.
Briefs and relevant court documents are available here.
The Wall Street Jounal provides an overview of the case, and the Vanderbilt Journal of Entertainment & Technology Law features a thorough analysis of the decision.
The court analyzed the Defendant’s fair use defense and concluded that the four factors enumerated in 17 U.S.C §107 did not support the use. The court weighed the first and third factors together (“the purpose and character of the use” and the “amount and substantiality of the portion used”), finding that The Lexicon failed to cite long passages taken from the original works and therefore was not “consistently transformative” to justify the amount of material copied. The second factor (“nature of the copyrighted work”) weighed heavily against finding Fair Use because the Harry Potter series is a highly inventive work of fiction. Finally, although the court warned that Rowling cannot monopolize the market for Harry Potter reference guides, the court found that the fourth factor (“the effect of the use upon the potential market”) weighing against fair use as well.
In dicta, the court noted that an author cannot use copyright to monopolize the market for reference guides, and clarified that encyclopedias are not derivative works. Quoting 17 U.S.C §101, the court explained that a work is not derivative simply because it is “based upon” a preexisting work; rather, it must “recast, transform or adapt it.” Although The Lexicon is based on the Harry Potter books, it does not merely recast the material in a new medium. Instead, The Lexicon “condenses, synthesizes and reorganizes” the material, thus serving a different purpose. Unlike trivia books and abridgements, two other types of secondary literature, a reference book like The Lexicon “give[s] the reader a ready understanding of individual elements,” thus its purpose is not entertainment but reference.
The Stanford Fair Use Center, who represented the Lexicon’s author, reacts to the decision. Despite the outcome, Anthony Falzone noted
the Court recognized that as a general matter authors do not have the right to stop publication of reference guides and companion books about literary works, and issued an important explanation of why reference guides are not derivative works. Needless to say, we’re very happy the Court vindicated these important principles.
Several commentators have voiced concern about the decision’s effect on fan fiction and creativity. Joe Nocera of the New York Times discusses the case and the implications of increasing copyright infringement litigation on creativity in general. Tim Wu of Slate insists the author of the “lexicon encyclopedia” has created a reference with “description and discussion” similar to a lengthy book review; fundamentally different, he believes, than a movie or video game which simply transports Rowling’s work to a different medium.