J.K. Rowling has succeeded at first instance in her copyright infringement case against RDR publishers and Stephen Vander Ark for their proposed Harry Potter Lexicon. I have mentioned this case earlier. Obviously the trial judge managed to get his head around the plotlines which he initially described as “gibberish”, as the judgment shows quite a knowledge of the books.
I admit that I was somewhat cynical in my earlier post about Rowling’s and Warners’ claim. I thought it was a bit heavy handed to bring the case. However, having read the judgment, I now understand why Rowling was so upset by the proposed Lexicon. The judgment contains large excerpts from the Lexicon, side-by-side with excerpts from the series of books. The Lexicon contains large sections which are direct quotations or close paraphrases from the series and other ‘Guide’ books without quotation marks or attribution. I’d be pretty annoyed by that too.
Given this, it was easy for the plaintiffs to establish the requisite substantial similarity between the Lexicon and the series.
The defendants failed on a claim of ‘fair use’. The judge acknowledged that a balance must be achieved between protecting an author’s copyright and protecting the rights of the public to comment and develop ideas. However, the use in this case was not appropriate, in part because of the great proportion of the work which was simply copied or paraphrased from the original books. There was some attempt to independently analyse and critique the series, but it was sporadic and not sufficiently ‘transformative’. Further, the creative nature of the series and the potential harm that could be caused in relation to the sales of the companion ‘Guides’ (which were apparently largely copied or paraphrased) militated against a ‘fair use’ finding.
The Court was prepared to issue a permanent injunction to prevent publication of the Lexicon because of it appropriated too much of Rowling’s original works. However, the statutory damages awarded were minimal ($7,500) because the Lexicon had not yet been published, and therefore no harm had been caused to the plaintiffs.
This judgment seems fair: the trial judge noted the importance of allowing people to comment and develop ideas, but found infringement in this case because the Lexicon had appropriated a large part of the series (by direct copying or paraphrasing without attribution). Thus, if a Lexicon is sufficiently ‘transformative’ and contains a new analysis or approach to the Potter series, there is nothing to prevent it being published, particularly if any parts appropriated directly from Rowling’s books are properly attributed to her. It is just that this Lexicon was not sufficiently different from the original work.
(Via WSJ Law Blog)
11 Comments
Well explained, LE.
It bothers me the way journalists and opinion writers decide on a court case without being there or reading the evidence or judgment.
It happens especially with criminal cases and acquittals.
(grumble, mumble, grumble)
Ken, TELL ME ABOUT IT! I worked in the court system for almost four years, and it was so frustrating to see how cases were reported by the media - the reports bore no relation to reality in many cases.
I can only think of one case which was reported accurately, and this was because the reporter sat through every day of evidence along with the rest of us and read the judgment carefully - I have a lot of respect for her. She knew her stuff.
Sigh -
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I think IP law worldwide has gone way beyond its necessary limits. The idea is to provide incentives to create stuff by rewarding people who do that. Now it’s just become a means to create oligopolistic control of culture in general.
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Not to mention medicine etc…
I too had the feeling that already very rich publishers and authors were getting more than a bit over zealous in bringing this case. I found myself shaking my head whenever I heard it reported on.
I would never have bothered to read the judgement and without this post my opinion would have remained the way it was. Thanks for sharing.
Adrien, I’d agree with you re IP law, and copyright law in particular, but in this case I think the judge got it right - if you just copy other people’s stuff into your book, well that’s an infringement.
I think what really made me think that the Lexicon was unfair was that half the time it didn’t attribute the sources. If it was a uni essay, Vander Ark would have been pinged for plagiarism!
Of course, in medieval times, it was regarded as a compliment to have one’s work plagiarised. The author generally didn’t do attributions because it was presumed that the reader was an educated person and would recognise where the passage came from. Printing and the capacity to disseminate one’s work widely changed all that.
Simon, glad you enjoyed the post.
He must have gone way over the ‘10%’ rule of thumb. A shame, really, because a concordance/guide to a lengthy fantasy series can be a useful thing.
Wa-a-a-ay over 10% from the excerpts I saw, at any rate. At least 50% if not more.
He would have been better off writing his own definitions without looking at Rowling’s work, and then quoting any relevant chunks of the book. If I were advising him on how to revise it, I’d also tell him to put in a lot more independent analysis.
I wonder if he looked at resources such as Brewer’s Dictionary of Phrase and Fable, Frazer’s The Golden Bough and Campbell’s The Hero with A Thousand Faces? All useful if you are trying to analyse tropes of fantasy literature. That kind of literature generally plugs into some very old traditions, which is why it proves so popular. Of course, if Vander Ark used those sources, he’d have to reference them too!
I’d agree with you re IP law, and copyright law in particular, but in this case I think the judge got it right - if you just copy other people’s stuff into your book, well that’s an infringement.
My objection was general LE. I wasn’t really commenting on the specifics.
I do find it a little bizarre that an actual publishing project would ignore the fair use guide and proceed to try and publish something that belongs to one of the world’s largest media concerns and the only billionaire author to boot.
So either they’re really really dumb or there’s something else going on.
I’d wager that there’s probably a Warner Bros lexicon in the works and this is an attempt to control competition. The fact that no attribution’s been listed as one of the misdemeanours is a bit fishy. After all it’s pretty obvious where they’re drawing the quotes from. It’s a Harry Potter lexicon after all.
Perhaps it’s just a shonky book from a sloppy writer and a shady publisher trying to get away with it. I’m not sure.
Still IP law which is supposed to be about getting creative people paid and encouraging creativity is turning into a scheme by which large concerns control culture and actually inhibit creativity.
Oh there’s definitely a Rowling/Warner Bros Lexicon in the works, which is one of the reasons why they brought this action so ferociously. Apparently the publisher approached Vander Ark shortly after Rowling made her announcement that she was going to write a Lexicon, although he insists that he didn’t know about Rowling’s announcement. The plan was to get Vander Ark’s Lexicon out before Rowling’s.
I don’t know why they tried to publish a book which had such a risk of copyright infringement. Perhaps it stems from the fact that it was never intended to be a book in the first place - rather it grew out of Vander Ark’s fan website.
It wasn’t so much that they featured quotes which didn’t have attribution, but that they just took chunks of Rowling’s writing wholesale and used that as their “definition” (complete with distinctive phrases used by Rowling). So in many cases it was not really original writing at all.
The evidence given in the trial was that such Lexicons apparently have a practice of saying where they got any material from, and in multi volume series, they generally have some kind of code to indicate in which volume certain things are mentioned. This Lexicon didn’t do that. The plaintiffs’ witness was pretty dismissive about the lack of professionalism in this effort (well, of course he was).
To me, it sounded like an entrepreneurial publisher of a small operation trying to catch a ride before Warners got on to him. He persuaded Vander Ark into the project by indemnifying him in case of any breach of copyright action on the part of Warners and Rowling. Apparently he didn’t stop promoting the book even when Rowling’s publishers had served him with a cease and desist notice.
On copyright more generally, the thing about ideas is you can’t exclusively possess them in practical terms - so any scheme has to be an artificial monopoly. Unlike land (of which there is a finite supply) ideas are unlimited and therefore non-rivalrous.
The argument in favour of copyright is to provide authors etc with incentives to write by giving them the fruits of their labour (a very Lockean idea). But then, of course, you can go so far with your monopoly that you provide a disincentive to creativity. I would argue that US IP law (and the strictures they force on everyone else) goes too far, and stifles creativity.
Funnily enough, in the 18th century, the US was a notorious copyright pirate! That was when they were not producing copyrightable items, but taking them from England and Europe… The shoe’s on the other foot now.
Funnily enough, in the 18th century, the US was a notorious copyright pirate!
Yes! Hilarious innit.
There’s also the Wordsworthian contribution - the unique individual’s work-
William: I wandered lonely as a cloud
That floats on high o’er vales and hills,
When all at once I saw a crowd,
A host, of golden daffodils;
Will’s Boss: Not them. I sent you out for fish and chips ye daft pillock!
You might’ve guessed old Will is my least favourite Romantic. Older Will on the ovver ‘and is class.
Yeah, I’m not a fan of Wordsworth either. He is a daft ol’ pillock. I do like Keats though, such a sweet boy. So tragic.
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[...] the case is available here and here. Legal Eagle on Skeptic Lawyer has an excellent discussion here; Madisonian has a similar analysis of why fair use defence in the case unsurprisingly failed; and [...]