COPYRIGHT
Books, all areas

An unofficial guide to the phenomenally successful ‘Harry Potter’ series of books must be scraped after a ruling in the US courts. The Harry Potter lexicon, a 400 page reference book, was held to infringe J K Rowling’s (and Warner Brothers) copyrights and that the defence of fair use would not apply. Judge Robert Patterson said that the book ‘appropriates too much of Rowling’s creative work for its purposes as a reference book and that independent publisher RDR Books had ‘failed to establish an affirmative defence of fair use. As the book had yet to be published the judge made nominal awards of damages to Rowling and Warner Brothers of £430 for each of the seven novels Rowling has written and £3,888 for two companion books she has also written.

 

Laurie Kaye has this to say in his most excellent and wizard blog athttp://laurencekaye.typepad.com/laurence_kayes_blog/

So J K Rowling won a permanent injunction yesterday from a NY federal judge to stop RDR Books from publishing a book entitled “The Lexicon”, based on the materials Steven Vander Ark culled from the Harry Potter works (including her companion books) and published on his website “The Harry Potter Lexicon”.

The case was portrayed by some as a ‘David and Goliath’ battle between J K Rowling and her ‘big media’ partners and the Web community. “Not so”, says Neil Blair of J K Rowling’s literary agents, Chrstopher Little, who spoke to me this morning about the case.

“This wasn’t a battle waged by big media nor was it about money”, said Blair. “J K Rowling decided to take a stand on principle for authors and other creators. At the heart of the case was this: where does a creator stand if it’s deemed acceptable for a works like the Harry Potter series to be taken like this.”

I’ve got to say that I agree with Blair. Judge Robert Patterson’s 68 page judgment is well-reasoned and eminently sensible. It’s worth reading because it goes to to the heart of the issue of ‘mixing and mashing’ in deciding where ‘fair use’ stops and copyright infringement starts. As the Judge put it: “At stake in this case are the incentive to create original works which copyright protection fosters and the freedom to produce secondary works which monopoly protection of copyright stifles-both interests benefit the public.”

What the judgment shows, at least so far as US copyright law is concerned, is that there is plenty of scope to use parts of existing works to create something new and still stay on the right side of copyright law. So why did RDR Books lose? The Court had to decide two issues: First, does J K Rowling prove that the defendants’ proposed work “The Lexicon” bears a ‘substantial similarity’ to “protected expression” in the earlier work – the Harry Potter series and other materials? Second, if there is ‘substantial similarity’, is the ‘fair use’ defence available to the defendant to J K Rowling’s claim for copyright infringement?

The Judge’s 48 part judgment decides those two issues “yes” and “no” respectively. I can’t do justice to the judgment in a short blog, but I will highlight a few key points.

The first issue – ‘substantial similarity’ – was fairly easy to decide. As J K Rowling put it in her testimony to the Court: If Mr Vander Ark has put quotation marks around everything he has lifted, most of the Lexicon would be in quotation marks.” Less colourfully, the Judge decided that applying both qualitative and quantitative tests, the amount of direct quotations and “close paraphrases of vivid passages in the Harry Potter works” was sufficient to support a finding of sufficient similarity.

The really interesting part of the judgment is the analysis of the ‘fair use’ test. There are four factors to be considered: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) that amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) the effect of the use upon the potential market for or value of the copyrighted work. At the heart of the ‘fair use’ analysis is whether and to what extent the new work is “transformative.” This has a special meaning in US copyright law and is the fulcrum that sustains the balance between copyright rights and exceptions. As the Judge put it: “the court asks…whether the new work merely ‘supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with a new expression, meaning or message.”. The Judge decided that the purpose of the Lexicon’s use of the Harry Potter series is transformative. However, the defendant’s use of J K Rowling’s companion works was transformative to a much lesser extent. That’s because the original purpose of J K Rowling’s ‘companion books’ was as reference works and that was not ‘transformed’ by the Lexicon. Furthermore – and this was crucial – the “transformative” character of the Lexicon was diminished where it crossed the line from being a new, “transformative” guide or reference work, pointing users to J K Rowling’s source material, and became simply a reproduction of large chunks of her original material.

The defendant also failed to meet the tests built into the 3rd factor of the fair use test. As the Judge put it, “Weighing most heavily against the Defendant on the third factor is the Lexicon’s verbatim copying and close paraphrasing of language from the Harry Potter works.”

Supposing Steven Vander Ark had ‘borrowed’ less material from J K Rowling than he did? Tellingly, the Judge remarked “there are a number of places where the Lexicon engages in the same sort of extensive borrowing that might be expected of a copyright owner, not a third party author.”

I’m not a US copyright law expert but it seems fairly clear that the ‘fair use’ doctrine has sufficient flexibility to allow creators of new works to use or ‘borrow’ from existing works – ‘mix and mash’ – as long as the borrowing is not so extensive as to cross as to cross the threshhold from fair use to infringement. Nice one Judge!

Laurie Kaye

http://www.laurencekaye.com/

For full details of the case see http://cyberlaw.stanford.edu/system/files/Lexicon+Order.pdf