Court Finds Potter Lexicon Copying Unfair

J.K. Rowling's victory in her high-profile copyright infringement lawsuit against RDR Books came down to the fact that in compiling The Harry Potter Lexicon, Steve Vander Ark simply copied too much of Rowling's work, said attorneys familiar with the case and the fair use doctrine that RDR had used to defend itself in the lawsuit. “The bottom line is, Vander Ark used too much of Rowling's material,” said Richard Dannay, an attorney with Cowan, Liebowitz & Latman. RDR's case was further hurt by the fact that what was copied was creative material, which enjoys a higher level of protection than factual material, Dannay added.

In the murky world of what constitutes fair use, Dannay and attorney Sam Fifer of Sonnenschein Nath & Rosenthal agreed that U.S. District Judge Robert Patterson's decision reinforced the point that for a book derived from another work to be seen as fair use, that second work must be, in the words of Fifer, “very transformative. You have to create something else.” While Patterson found that the Lexicon was not a derivative work (it gave the material another purpose), he still found that the work was “not consistently transformative” in that the Lexicon copies distinctive language from Rowling “in excess of its otherwise legitimate purpose of creating a reference guide.” While parody (think Wind Done Gone) and literary criticism clearly remain protected by fair use, Dannay believes the decision raises the question of how someone could legally create a reference guide to someone's work. By their very nature, reference works need to include detailed information about their subjects, Dannay said. To do that, “how do you avoid using too much material?” Dannay asked.

For Fifer, the answer may lie in the new reference book's impact on the market. He believes the RDR decision is another step in making the market impact the most important part of the four-point standard that judges use to determine fair use. He noted that Rowling had no problem with the Lexicon when it merely was in online form, but she grew concerned that the print edition would compete with an encyclopedia she had planned to write, as well as with her already published companion books Quidditch Through the Ages and Fantastic Beasts and Where to Find Them. While Patterson determined that the market for Potter reference works is not exclusively Rowling's to exploit, he nonetheless found that a printed version of the Lexicon “would impair the market for derivative works that Rowling is entitled or likely to license.”

The ruling, Dannay noted, supported the concept that copyright owners have the ability to determine when they believe their copyright has been violated. Rowling didn't challenge the online edition because it didn't go head-to-head with her works, but she drew the line when a book “would compete in her home park.” Dannay said it is far from clear what the decision might have been had Rowling challenged the online Lexicon.

At press time RDR had not determined if it would appeal the decision, which blocks any publication of the print edition of the Lexicon. In a post on his blog, Anthony Falzone, executive director of Stanford Law School's Fair Use Project, wrote that while the decision was a careful one, “we think it is wrong. So stay tuned to where we go from here.” The Fair Use Project decided to help represent RDR because it believes that Rowling's lawsuit threatens the right of authors to create reference guides and companion books about literary works.