Rowling wins copyright case

By Legal Eagle

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

  1. Ken
    Posted September 10, 2008 at 4:21 pm | Permalink

    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)

  2. Posted September 10, 2008 at 6:14 pm | Permalink

    Sigh –
    .
    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.
    .
    Not to mention medicine etc…

  3. Posted September 10, 2008 at 7:53 pm | Permalink

    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.

  4. Posted September 10, 2008 at 9:32 pm | Permalink

    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.

  5. Posted September 11, 2008 at 5:04 pm | Permalink

    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.

  6. Posted September 11, 2008 at 6:11 pm | Permalink

    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.

One Trackback

  1. By Harry Potter copyright update | cearta.ie on September 11, 2008 at 2:43 am

    […] 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 […]

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