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UPDATED: 
I’m told that reclusive author of the 7-volume Harry Potter series of books, J.K. Rowling, is flying from Scotland to NYC in order to testify Monday when the trial starts in the lawsuit she and Warner Bros jointly filed last October against Michigan-based RDR Books. The company, which normally publishes books about travel and Judaica, will defend The Harry Potter Lexicon which began online and is about to become what it says is a “reference guide” which Rowling can’t lay claim to. But issues of copyright infringement and fair use are in dispute over online material that’s been subsequently published. The case will be heard in federal court for the Southern District of New York. Rowling will be the first witness for the plaintiffs. ”It’s very important to her,” an insider told me Friday night. “She doesn’t feel that somebody else should be effectively ripping off her work and infringing on her intellectual property.”
Although it has agreed to remove Rowling’s name from the back cover, RDR Books has refused to stop publication, leading to the present legal brouhaha. Joining Rowling in this lawsuit is Warner Bros Entertainment Inc, which holds trademark rights in the names, places and characters in the books and copyrights in the films based on all the Harry Potter’s. The sued publisher’s statement is below. But, first, here’s the joint statement by Rowling and Warner Bros provided to me tonight:
“Ms. Rowling is very supportive of individuals and groups who enjoy her characters, especially the fan sites. She has given exclusive interviews to various webmasters, and presented fan sites with awards. Her willingness to make available the intellectual property in Harry Potter for charitable purposes is well known, and she has supported creative book authors who have written analysis, criticism and comment on her works. To date, approximately 100 books relating to Harry Potter have been published in the US alone, including religious, mythological and scientific analyses. Notwithstanding her support for these fans and authors, J.K. Rowling owns the copyright in all the books of the Harry Potter series and also in the fictional characters, events, places and things that make up the world of Harry Potter. In addition, she owns the copyright in two companion guides that she authored.
“
Steven Vander Ark runs a fan website called ‘Harry Potter Lexicon’ which has been online since 2000. Ms. Rowling has been supportive of the website, which is free of charge for people to use. She even gave it a fan site award in 2004. However, Mr. Vander Ark has now entered into an agreement for a printed version of the Lexicon, which RDR Books intends to profit from by publishing at a price of $24.95. The book is very different than the website and far inferior to it. It fails to include any of the commentary and discussion that enrich the website and instead is nothing more than a re-arrangement of J.K. Rowling’s own written material.
“J. K Rowling believes that this is wrong. Mr. Vander Ark himself also appears to believe that it’s wrong. On his website, he writes, ‘I don’t give permission for people to just copy my work for their own use. Not only is that illegal, since everything in the Lexicon is copyrighted, it’s also just plain wrong.’ In addition, to fans who were proposing a ‘Fan-Made Harry Potter Encyclopedia,’ he e-mailed: ‘Basically, it is illegal to sell a book like that. Jo has reserved all publishing rights to her intellectual property, which means that she’s the only one who may publish any book that is a guide or encyclopedia to her world.’
“Ms. Rowling also believes that if this book is published, it may detract from sales of her own planned encyclopedia,
the proceeds from which will go to charity, just as the proceeds from her other companion books have already been donated to charity. There is a long history of authors using their intellectual property rights to benefit charities. The income from works by George Bernard Shaw continues to support the British Museum, British Library, National Gallery of Ireland and Royal Academy of Dramatic Art, the copyrights in Rudyard Kipling’s works help support the National Trust, while the copyright in J. M. Barrie’s Peter Pan continues to support the Great Ormond Street Hospital for Children. Sadly, the Stanford Center for Law and the Internet, which is acting against J. K. Rowling in this case, has previously attacked Great Ormond Street Hospital and attempted to deprive it of the income intended by J. M. Barrie’s bequest.
“Repeated, cordial efforts have been made to persuade RDR Books not to go ahead with publishing the Lexicon. Although it has agreed to remove J. K. Rowling’s name from the back cover, RDR Books has refused to stop publication, leading to the present legal action being taken. Joining the author in this lawsuit is Warner Bros Entertainment, Inc., which holds trademark rights in the names, places and characters in the books and the copyrights in the films based on the Harry Potter books. Together, they are suing RDR Books (but not Mr. Vander Ark personally) to prevent publication and to seek appropriate damages.”
—
Here is RDR Books’ statement about the lawsuit given to me Saturday night:
New York Federal District Court Judge Robert Patterson has scheduled a trial for April 14 in the matter of Warner Bros. Entertainment and J.K. Rowling v. RDR Books. The judge consolidated a previously scheduled injunction hearing with the trial. The plaintiffs want to block publication of librarian Steve Vander Ark’s Harry Potter Lexicon.
In this action, a distinguished and tremendously successful novelist demands the suppression of a reference guide to her works. J.K. Rowling, author of the Harry Potter books, asserts that this reference guide infringes both her copyright in the seven Potter novels and her right to publish, at some unidentified point in the future, a reference guide of her own. In support of her position she appears to claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction.
This is a right no court has ever recognized. It has little to recommend it. If accepted, it would dramatically extend the reach of copyright protection, and eliminate an entire genre of literary supplements: third party reference guides to fiction, which for centuries have helped readers better access, understand and enjoy literary works. By extension, it would threaten not just reference guides, but encyclopedias, glossaries, indexes, and other tools that provide useful information about copyrighted works. Ms. Rowling’s intellectual property rights simply do not extend so far and, even if they did, she has not shown that the publication of this reference guide poses a sufficient threat of irreparable harm to justify an injunction. Her injunction motion should be denied.
Editor-in-Chief Nikki Finke - tip her here.
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My call: JKR and WB lose this fight.
I disagree. The questioned book seems to be a derivative work, and copyright holders have exclusive rights over derivative works. Doesn’t seem like there’s a fair use defense for the “Lexicon” publishers — especially in the 2nd Circuit (where I assume this case has been filed given the NYC location). This case sounds a lot like the Castle Rock v. Carol Publishing case decided in that circuit, where the makers of a so-called “Seinfeld Aptitude Test” based exclusively on quotes and trivia from the show. NBC distributed copies of this book as part of its promotion of the show, and at the time Castle Rock had neither published, nor intended to publish, and Seinfeld-related books. Nevertheless, Castle Rock was successful in its copyright infringement lawsuit against the publisher of the Aptitude Test (in part because Castle Rock *could* have intended to release a Seinfeld-based trivia book in the future, which would have fallen under its exclusive right to control derivative use of its copyrighted materials, and this potential on the part of Castle Rock killed Carol Publishing’s fair use defense.
Go ahead, WB and JKR succeed…Then any user generated support will dry up and THERE will be a backlash. HP properties will henceforth receive a hostile reception. Isn’t the fanbase quite upset at WB (taking a page from NBCU) in splitting the final book into two movies? Go ahead, WB and JKR, keep pissing off the fanbase, it allows opportunity for others while you are blinded by greed and other IPR issues.
It seems JK Rowling wants to control criticism and comments on the Potter series. I do hope that won’t work.
I do not understand why Rowling refers to the publication of hitherto unpublished material, drafts etc, as an ‘encyclopedia project’.
It is well known that J K Rowling intends to publish her own encyclopedia on Harry Potter. Her claim in this case that she is entitled to exclusivity in this market niche is entirely without merit unfortunately. Castle Rock has been criticized, most famously by the 9th Circuit by Judge Posner in the TY ruling. Though some feel the Castle Rock case is precedent in the 2nd, TY is closer on the merits than Castle Rock. A finding based on Castle Rock, if held up on appeal, would set this case on the fast track to the Supreme Court. I don’t think it is going to get that far. I think the 2nd will break from Castle Rock here.
For an informed opinion you really need to read the filings in this case. JKR/WB as plaintiffs make very weak arguments filled with inflammatory language that frequently misstates the law. The judge in this matter knows the law. He knows she isn’t entitled to protection from competition in the market for secondary works. Some of it is almost insulting to the intelligence. No one seriously believes Ms. Rowling will sell even one less of her book because this book is published. No need for all the dramatics about taking money from her charities. That is an emotional argument not a legal one. There would be little need for press releases such as this if the case was firmly based in the law. This is damage control.
I find it disheartening that anyone can seriously believe that a work that talks about another work is guilty of copyright infringement. The only reason anyone is upset about this is because it’s JKR.
where are all the wga supporters now? I would have thought you’d defend a writer’s rights here.
Actually, P. Lee, the fanbase is pretty ecstatic about the last film being pared. It’s what we begged them to do with Phoenix, but the horrible person they put in charge of directing thought it was more important to have six second action scenes rather than actually include the story. JKR should lose this. Such a book wouldn’t exactly hurt her book sales. Quite the contrary, those like me who already own her series would be encouraged to buy more, read more and write more, as she says is her goal. Sounds more like she’s just bitter about not getting a royalty cut, which is more reasonable and what she should really be gunning for.
I hope the estates of Roald Dahl, C.S. Lewis, and J.R.R. Tolkien get together to sue Rowling for ripping off THEIR intellectual property. It’d be equally valid.
P lee misses the point.
JKR was enthusiastic when it was free.
She holds the copyrights, why should anyone else be able to make money?
It’s what I would want if I had written the book myself…
Rowling has been incredibly supportive of the fan sites, when she could have been a jerk about it. The fair use analysis does not support an unauthorized work like this when it isn’t for the purpose of comment or criticism — it appears to be merely a compendium of facts taken from the works themselves. Unless there is more to the story that we don’t know — and remember that Rowling announced plans of her own to do an encyclopaedia of the HP world at some point — she will win (and probably should win). This is a commecial work trying to get a free ride off goodwill which is not their own.
I guess the thing is: does this lexicon quotes Rowling´s books? That´s copyright infringement (like in the Seinfeld book). If not, I guess there is no case.
By the way: why they are not suing the autor?
This is not a simple case of literary criticism or analysis — the Lexicon book will be in print form what the Lexicon website is, a compendium of information straight from the Rowling canon. This collection of facts in no way falls under the umbrella of ‘fair use’, as there is very little original material SVA is adding to the mix. Additionally, a ruling against RDR does not take anything from we, the fans. Many, if not all, of the fan sites extant focus on analysis and reaction to the works, rather than just collecting bits of information from thousands of pages, to create a what is essentially a searchable index. While the Lexicon website is useful, as Rowling has indeed stated herself, a print version of the site is not only redundant, but infringing.
According to the expert hired by JKR, 146,641 out of 160,416 words in the Lexicon book are taking directly from the HP works with no comment or analysis and over 2,000 of the 2,400 entries have nothing but JKR’s facts. That is why Ty is not really applicable here, in the Ty case, every entry had added value.
As for the Deathly Hallows being split into 2 movies, I have not seen any complaints. In the Fandom, the main complaint about the previous movies is that they were too short.
Excellent analysis above by Anonymous — April 12, 2008 @ 11:29 well done you capably exposed the weakest points of this suit. Rowling and Warners are going to lose this and they deseve to lose it.
Their charity angle is nothing more than PR spin. They are out to make as much money as possible from the Potter genre that’s what this case is about.
A much more interesting angle is who actually writes the Potter books? Supposedly Jo Rowling is merely the front woman for a consortium of writers who write the books as a team.
The theory and it’s only an allegation is that she came up with the basic idea of Hogwarts and the characters but that’s really all she did.
This theory has been expounded on all over the web but Rowling has never sued for libel. If it’s false then it’s clearly libelous so why hasn’t she ever sued over it? They are claiming she doesn’t write the books. How much more libelous can something be if it’s false?
The fact that she hasn’t sued over such a slanderous theory could mean that it’s true and she’s afraid to publicize it for fear of exposing the group she fronts for. Does she really write all of the books or is she just the public face of the Harry Potter Publishing Team?
She’s supposedly a billionaire. What if she’s just well paid to keep quiet about who’s actually writing the books? This is the real mystery if it’s true it’s a fascinating case study in mass media and popular culture manipulation.
Let me see if I’ve got this straight Lord Voldemort…your basic argument is that since JK hasn’t effectively denied the theory that she’s not the writer, by suing those making the accusations, it must be true? Whewf.
Though some feel the Castle Rock case is precedent in the 2nd, TY is closer on the merits than Castle Rock.
If this case was filed in the Second Circuit, then the Castle Rock case is binding. The Ty case was in the 7th Circuit, not the 9th Circuit. Judge Posner sits on the 7th Cir. Court of Appeals. Further, the Ty case involved photographs of the Beanie Babies, and the copyright protection for the Beanie Babies didn’t extend that far. Here, the “encyclopedia” of the Harry Potter universe would seem to directly violate 17 USC 106(2) — the preparation of derivative works based upon the copyrighted work. This right is exclusively reserved for the copyright holder, baring certain exceptions, the biggest one being fair use. But unless this work is a parody or literary criticism, they’ll have a hard time establishing a fair use defense; everything in the Harry Potter universe exists solely by way of the author’s creation, and so they’ll receive the highest copyright protection.
There is a huge difference between an ANALYZING work, many of which have been published and J.K. Rowling has allowed. However, this book is simply a condensed, if you will, version of Rowling’s work. Yes, Mr. Vander Ark may have done some work to complete this book, but none of it is his intellectual property.
Also, Rowling has been exceptionally permissive, and allowed fanfiction, wizard rock, fansites, and the like. Equally important is to distinguish Rowling from the legions of lawyers that represent her, WB, and Scholastic.
Dear Nick,
Tolkien ripped off the Volsung Saga. Right down to the names of the dwarves. The difference between Tolkien and SVA (aside from Tolkien having a modicum of talent) is that the Volsung Saga was written in 13th century and would be considered to be in the public domain.
I imagine you don’t care because the 1)Volsung Saga was first written in Old Norse and 2) it didn’t sink your ship.
No love,
Me
P.S. Speaking as a fan? GO, WB, GO! W00T!
Exactly how derivative is a work that is 91.41% quotes from the original work?
See the link below for pie chart in the second to the last page of the legal memorandum.
http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/83/
Oh, honestly. Have any of you actually looked at the Lexicon website? With the exception of the essays (which SVA did NOT write) it is clearly a cut and paste copy of JKR’s writing. There is NO critical analysis of the work from SVA. I know many of the essay contributors to the Lexicon site, and they did not give SVA permission to publish their essays, and actually were told by SVA that he wasn’t using them. So what’s left? Just the whole sale cut and paste job from the books to create a list of characters, spells and events from the book, with nothing new added in.
It’s clearly a case of copyright infringement, and frankly (even though I’ve met SVA on several occasions and do like him) find SVA to be incredibly stupid about this. And his publisher RDR is on crack!
For immediate release:
When Steven Vander Ark’s publisher, RDR Books, told him it was okay to publish a printed version of Vander Ark’s Harry Potter Lexicon Web site, which is largely derived from work by Harry Potter author J.K. Rowling, Vander Ark accepted that without further question and proceeded with the project. That cavalier attitude is no surprise when one considers the source of Vander Ark’s Web site in the first place. When did it become okay to lift someone else’s copyrighted material and present it as one’s own? That’s why, “in the name of scholastic pursuit”, I’ve made a copy of Vander Ark’s Web site to use as my own Web site. Oh, it’s okay. I’ve changed the name of the site and reorganized it a little. My version is called Harry Potter’s Maxicon. Different enough, right?
Http://www.maxicon.org
There’s a similiar book for the Discworld series, and the author, Terry Pratchett, participated, as well as got paid.
http://www.amazon.com/Wit-Wisdom-Discworld-Novels/dp/0061370509
If there was no objection to the material as a website, then it would be difficult to argue against it in print.
If the non-fiction book heavily quotes the fiction works then there may be a valid case, but on the whole a non-fiction work about any subject is it’s own work. As for percentage of words, ninety-nine percent of all printed words are found in a dictionary. It’s really the percentage of quotes from the original text that have to be considered.
Besides, have people already forgotten the Larry Potter lawsuit? Her main character is based upon someone else’s work. Rowlings seems to have no problem taking material from others.
Part of the problem as well is that copyright has become rediculous in a time when almost all cultural references would fall under someone’s copyright.
The Lexicon is not a transformative work. The Lexicon is an alphabetised rearrangement of copyrighted material. I’m no lawyer, but I’m fairly sure it’s against the law to sell other people’s work for profit.