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JK Rowling Wins Copyright Suit Over Competitor’s Encyclopedia

JK Rowling won a copyright suit against Steven Vander Ark and RDR Books with the district court enjoining the publication of the competitor's encyclopedia and reference guide along with $6,750 in damages.  The court found that the Lexicon used too much of the original creator's work to be considered fair use although reference works in general should be "encouraged rather than stifled."  No word yet whether the ruling will be appealed.

Thanks Emmy, for the link.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

42 Comments

  1. Robin
    Sep 08, 2008 @ 16:31:20

    What makes me so incredibly angry about this is the way Rowling (and Warner Brothers) seemed perfectly happy to let (encourage??) Vander Ark provide PR for her for so long. I’m too pissed yet to comment beyond that without massive amounts of swearing and ranting.

  2. Mouse
    Sep 08, 2008 @ 17:23:31

    . . . Maybe it’s just me, but I could see this resolution coming a mile away after reading the defense’s testimony, knowing the site, and knowing what was being said in fan circles about the actual content of the Lexicon book. SVA diminished his chances of successfully filing as fair use by taking out all of the fan essays on the actual site from the print edition, but, if he didn’t do that, he would have had to pay his fellow fans a cut of the profits too. He didn’t go back and edit passages either so that they didn’t lift directly from the novels or the companion books. In my opinion, he’s either lazy, or stupid, or greedy, or all three.

    While he may have been a great fan before (and PR for JKR if you want to consider it that), he stopped being that the moment he tried to make a profit from it by signing on with RDR. You don’t profit from fandom works, and he tried to break that tenant only to fail miserably and look like a fool doing it. It didn’t help that he turned on RDR too during the trial testimony, stating he was ‘coerced’ into signing on to publish the lexicon. ::facepalms::

    If RDR had won, it would have made terrible case law for fair use because there was nothing in the Lexicon to support it being transformative, and depending on how the judge decided, it would have made copyright holders more stringent on protecting their copyrights over the net so that they didn’t appear to favor any fans by allowing them to publish online for free, and just banned all fan works. Fandom in general dodges a bullet in this case to me, and I for one am gonna go shake my booty in victory.

  3. Emmy
    Sep 08, 2008 @ 18:06:43

    I just don’t get how an encyclopedia referencing a series of books would not be part of fair use. Nobody would substitute the lexicon for the actual books, or read it instead of the books, so all it would have taken away from is Rowling’s profit from publishing her own lexicon. She didn’t want the competition.

    I’m curious to see the full judge’s opinion on this one. How did he decide that references in general shouldn’t be stifled, just this one??

  4. Emmy
    Sep 08, 2008 @ 18:15:30

    Just saw the decision. Trying to read it, but falling asleep every other page or so.

  5. allison
    Sep 08, 2008 @ 18:15:38

    Emmy –

    The decision points out that 91% of the lexicon is actually JKR’s words rearranged in alphabetical format. His decision isn’t “all companion books are bad” but “Steve Vander Ark went too far and took too much of the original source material”.

    So he’s not saying that lexicons and encyclopedias are bad – what he’s saying is “stop c/ping the author’s words”.

    The judgement is here if you are interested. It’s 86 pages but it goes fairly quickly.

    *edited to correct length of judgement*

  6. Angie
    Sep 08, 2008 @ 18:19:53

    http://online.wsj.com/public/resources/documents/potterdecision.pdf

    The full judgment can be read there. Long story short: the judge felt that too much of the content of the books was lifted wholesale from the originals and were offered without any sort of transformative commentary. In addition, there was nothing distinguishing word for word quotes from the books from paraphrasing from the books from the very little commentary present throughout.

    During the trial, the WB lawyers submitted evidence that 91% of the book is material taken directly from the books without commentary or analysis. Further more, almost all the material in Rowling’s two companion books were copied into the Lexicon.

    The judge found that while lexicons are important works, that this specific lexicon contained almost no commentary, analysis, or original research. As such, this judgment would not apply to any other work, just to the Harry Potter Lexicon.

  7. Mouse
    Sep 08, 2008 @ 18:20:51

    The full judge’s decision can be found right here in PDF from the WSJ:

    http://online.wsj.com/public/resources/documents/potterdecision.pdf

    The gist of it is though that the Lexicon took too much from the companion books, Quidditch Through the Ages and Fantastic Beasts and Where to Find them, and not just the novels. He also didn’t properly cite things, and not enough commentary outside of directly quoting the books. Pg. 18 has a lovely footnote where he says that The Companion to Narina was more erudite and informative than the Lexicon.

  8. Sparky
    Sep 08, 2008 @ 19:31:27

    Bravo for JKR.

    I am astonished that some fans think that if they love a book enough and spend enough time reading it and writing about it that they somehow own part of it and the author owes them something.

    He spent hundreds of hours on his hobby, created a website for it and loved and cherished it. But why does this entitle to him to some kind of proprietary interest in the work? Why does he get to make money off her creation and her work – especially since the judgement says that the vast majority of the work in the lexicon is a direct extraction from the books.

    When it was on the internet it was pure fannish hobby that didn’t earn him money and didn’t compete with Rowling’s own work with the universe she created. Even if it wasn’t competition – why SHOULD he earn money of her ideas and her work?

    Devotion and dedication is touching and flattering. But that’s it. It doesn’t mean the object of that dedication owes anything in return

  9. Marianne McA
    Sep 09, 2008 @ 04:34:29

    Robin – was PR really much of an issue with Harry Potter?

    I’m not in the US, and not involved in the fandom, so perhaps I’m underestimating his importance, but I’d never heard of him before the lawsuit.

    Not being a lawyer, I thought the fact (if it is a fact, because the internet lies) that he asked Rowling for permission was telling. Seems to me, if you ask permission, you’re implicitly acknowledging the other person’s right to refuse you.

    – Thanks for the links to the judgement. Does seem particularly mean-spirited to incorporate the two books that were published for charity.

  10. ilona andrews
    Sep 09, 2008 @ 05:11:26

    Robin,

    Suppose I make an online wiki of DearAuthor: The World According to Ja(y)nes. My wiki has author names with titles of their authors, excerpts from the first sale articles from your blog, excerpts of reviews – verbatim – from your blog, industry news – from your blog. Suppose just for the sake of the argument that you guys permit me to have this website because I send a lot of traffic your way.

    I collect my wiki, print it out, and get a book deal. 90% of my wiki consists of your words. You get nothing from the proceeds.

    Do you have the right to protect your intellectual property at this point? Of course you do. And if I stood there and told you, “But I should be paid for providing PR,” you would be completely within your right to point out that you created 90% of the content.

    What he did was wrong legally and ethically. Yes, it was a lovely website/database for the fans. But the author isn’t beholden to every fan website out there.

  11. Nora Roberts
    Sep 11, 2008 @ 08:34:38

    ~But the author isn't beholden to every fan website out there.~

    Oh boy, do I agree.

  12. Shiloh Walker
    Sep 11, 2008 @ 08:54:12

    Personally speaking, I’m glad the guy was stopped from publishing the book.

    Considering it wasn’t really ‘his’ original work that went into it, or very little of it, he’s not entitled to make scads of money.

    The example Ilona offered was very fitting, IMO.

    Didn’t the SB blog ladies get a book deal relating to their website? If somebody not affiliated with the SB blog had gone and decided to pitch their compilation of SB info, and huge amounts of the book were nothing but data directly lifted from the SB site, offering very little in the way of critical insight, next to no original data, I don’t think this imaginary soul would be entitled to make money from their work.

    Copy/paste might get tedious and somebody may put a great deal of work into it, but it isn’t original work….I think that was the issue here.

    However, I will admit I haven’t spent a great deal of time following the issue.

  13. Jane
    Sep 11, 2008 @ 09:27:52

    Shiloh – your example isn’t analogous. There’s a world of difference between compiling a reference volume and simply a collection.

    I believe this decision would have been completely different in the Ninth Circuit v. the pro publisher Second Cirtcuit. I see no significant difference between the facts in the Rowling case and that of Perfect Ten v. Google wherein the 9th Circuit found that the indexing and cataloguing of images was not infringing because the use was transformative even though the entirety of the image was used.

    The sad thing is that these decisions contravene the very intent of the Constitutional grant for copyright and that is to further the study of arts and sciences for the betterment of the public.

    With copyrights being so long – the life of an author + 70, the amount of time in which the copyright’s rigid control over even scholarly endeavors is frightening and works to suppress creative work, creative thought.

    If the question was merely profit motivated, this decision would not have been made. I do believe that the real question as it pertains to derivative works should not be how much of the original work is used but whether the derivative work reduces the marketability of the copyright holder’s original work. In this case, I highly doubt that a) RDR and Vander Ark would have made “scads” of money and b) that Rowling’s own encyclopedia would have suffered a loss of profit.

    If Rowling would not have suffered a loss of profit, what is the harm in the publication of an additional derivative work?

    It’s ironic that those who stand to benefit the most from looser copyright rules (ie., those who make a living off of them) are the ones who are in favor of the strictest interpretation.

  14. Nora Roberts
    Sep 11, 2008 @ 09:34:21

    ~If Rowling would not have suffered a loss of profit, what is the harm in the publication of an additional derivative work?~

    Speaking for myself, I feel my work is my work. If I give permission, that’s one thing. If I say no, I want my work respected. It’s not just about the money, it’s about respect for the artist and the creativity and the work.

  15. Jane
    Sep 11, 2008 @ 09:38:40

    I don’t see how the Harry Potter Lexicon disrespected the work of JK Rowling at all. In large extent the mere existence of the HPLexicon honored the work of Rowling.

    What’s the true irony is that I could mock, satirize and bastardize your work or Rowling’s work and I would be afforded more protection by the copyright laws than if I “respected” it.

  16. Nora Roberts
    Sep 11, 2008 @ 09:57:54

    ~In large extent the mere existence of the HPLexicon honored the work of Rowling.~

    I just come at it from a different POV. I don’t see it honoring the work to take it and try to profit by it, especially after the creator of the work said no, don’t do that.

  17. Jane
    Sep 11, 2008 @ 10:07:26

    I’m referring to the HP Lexicon in its web form. It is convenient that the author, rowling, can benefit from such an enormous endeavor by an individual and still be seen as the victim.

    People profit from the work of others all the time. Perhaps not in such a direct way as in the publication of the Lexicon but it is the way of the economy. No individual item makes it into the distribution stream of commerce without the work of others before.

    But going back to your “respect” and “honor” arguments, the copyright law is not about respect and honor. It’s about the balance between giving creators control over their work against the advancement of knowledge, creativity, and the pursuit of scholarly endeavors.

  18. Julia Sullivan
    Sep 11, 2008 @ 10:45:58

    I'm referring to the HP Lexicon in its web form. It is convenient that the author, rowling, can benefit from such an enormous endeavor by an individual and still be seen as the victim.

    The effort wasn’t “by an individual”–the online Harry Potter Lexicon was a group fan endeavor, and Vander Ark wasn’t the only person who wrote content or edited the entries by any means.

    The proposed print Lexicon would have been to Vander Ark’s financial benefit only. So he was not only proposing to derive profit from cutting and pasting Rowling’s words, but from using the work of other fans.

  19. Julia Sullivan
    Sep 11, 2008 @ 10:47:43

    Not being a lawyer, I thought the fact (if it is a fact, because the internet lies) that he asked Rowling for permission was telling.

    It was a fact: the evidence was introduced in court, and Vander Ark acknowledged that the had written those emails.

  20. Jane
    Sep 11, 2008 @ 10:52:50

    First, I used the term “respect” in regards to Ms. Roberts argument that the HP Lexicon disrespected the author. I believe that the type of work that it was (an indepth treatment of the works of Rowling) wasn’t disrespecting the work. Satire would be mocking the work and I didn’t see the Lexicon mocking the writing of Rowling.

    Second, it doesn’t matter that Vander Ark asked for permission because copyright is an intentless act. You either infringe or you don’t infringe. You are either protected by the fair use exception or you aren’t. It doesn’t matter what you mean to do. Intent in the law has a very specific meaning so the “telling” act of asking for permission tells nothing at all in terms of proving infringement.

  21. Christine Merrill
    Sep 11, 2008 @ 11:19:16

    “Second, it doesn't matter that Vander Ark asked for permission because copyright is an intentless act. You either infringe or you don't infringe. You are either protected by the fair use exception or you aren't.”

    But if the proposed work was 90% her material, then he wasn’t protected by fair use. And he admitted it by asking for permission.

    I was a librarian. Asking permission from the publisher, or the Copyright Clearance Center, was exactly what we would have told an instructor to do, if we thought they were violating fair use.

    http://www.copyright.com/

    They use the word permission, right on their main page.

    And for something small (like a magazine article) we would have expected, the rights holder would grant permission for a fee. Because you don’t get to use other people’s original work without paying.

    What was originally on the web lexicon is not really an issue. That sounds like original criticism, which is protected. So is satire. And satire doesn’t have to be mocking or disrespectful.

    But neither of those give you the right to borrow big chunks of text and resell them.

    But from the author’s persepctive, it’s much more disrespectful to make money off someone else, and give nothing back. You seem to be arguing that the PR from the Lexicon is sufficient payback. But is it, if the author did not request the PR, and cannot control the content or use of her original work?

  22. MoJo
    Sep 11, 2008 @ 11:23:55

    But is it, if the author did not request the PR, and cannot control the content or use of her original work?

    If this lexicon was pulled from the website, excluding commentary and fan essays, then the 91% of the print lexicon that was JKR’s was already on the website, no? And she did nothing.

    I don’t have an issue with the decision at all. My issue is that if her interest had NOT been the money, she would have shut it down when it was free. Now, that would have made her look even more like a bully, but it would have been the CONSISTENT thing to do.

    You can’t just pick and choose your copyright battles. You have to fight them all.

    Jane said:

    I believe this decision would have been completely different in the Ninth Circuit v. the pro publisher Second Circuit.

    And this is the most troubling of all, IMO.

    The take-home message today, kiddies, is even when it’s free, it’s stealing.

  23. MoJo
    Sep 11, 2008 @ 11:41:55

    But if the proposed work was 90% her material, then he wasn't protected by fair use. And he admitted it by asking for permission.

    I was a librarian. Asking permission from the publisher, or the Copyright Clearance Center, was exactly what we would have told an instructor to do, if we thought they were violating fair use.

    Did he ask permission for 91% of verbatim?

    I asked a songwriter for permission to use her lyrics in my book. She asked me exactly what I wanted to use and in what context. When I sent her the material, she agreed.

  24. Shiloh Walker
    Sep 11, 2008 @ 11:43:11

    Jane, I think I see where you’re coming from but I’m going to have to agree with Nora here.

    I just come at it from a different POV. I don't see it honoring the work to take it and try to profit by it, especially after the creator of the work said no, don't do that.

    Part of me wonders what JKR would have thought if the guy putting together the lexicon had said he’d donate the profits to some literacy charity or something.

    I don’t think it’s that JKR would worry about missing the money… we all know she won’t.

    But whether or not she’d miss the money is irrelevant in how I’m looking at this.

    Somebody else doesn’t have the right to come in, take her hard work, and 10% of his own material, and then profit. And we all know there would have been huge profit. I don’t see that he’s entitled to it.

    Now if he was doing indepth essays on each of the books in addition to whatever material he took from her books, or if he’d done substantial amounts of research and written on how the HP books impacted the reading habits of today’s youth… hey, I might change my mind.

    But 90% was her material. Left 10% of the lexicon as his own. Say it was 300 pages total. He wrote 30 pages, copied 270, and stood to gain huge amounts of money.

    I don’t feel he’s entitled to it.

  25. Nora Roberts
    Sep 11, 2008 @ 13:47:42

    Jane, I really do think we’re coming at this from very different POVs. I can’t dispute the copyright angle with you. My head is full of a stupid cold, and even if it was clear, I just don’t know copyright law very well.

    When I say respect, I do mean respect the work and its creator by not assuming you can copy that work or profit on that work without permission and approval. It’s mine. That may or may not be a legal argument–I can’t say–but it’s how I feel.

    Satire springboards off the work, transforms it. It may disrespect the work in that it makes fun of it, but it doesn’t disrespect it by copying that work, without transforming it, for profit.

    And really, I don’t know if that makes sense to anyone but me, but it’s the clearest I can think through the haze of congestion.

  26. Seressia
    Sep 11, 2008 @ 14:25:24

    I’d probably feel differently if it was a university class putting together a concordance or something for a class or a criticism of Rowling’s work as a whole (scholarly work). And the website certainly wasn’t infringing on JKR’s profits as it didn’t charge a fee and was obviously transformative enough, containing lots of original content (can’t say as I never visited and I still have yet to fonish the last book).

    “The advancement of knowledge and the pursuit of scholarly endeavors” is one thing, but I have a problem with the creativity part–it’s the author’s creativity that someone else is taking to make a profit from. In this case it seems Vander Ark went beyond fair use and his ‘treatment” was in fact reformatting of the author’s work in a different layout.

    I may never have a universe as rich as Rowling’s (or Tolkien’s or Kenyon’s for that matter) but if I did, I would want to be the one to put out a lexicon on it. That may seem selfish to some, but it seems sensible to me.

  27. Julia Sullivan
    Sep 11, 2008 @ 14:46:42

    Somebody else doesn't have the right to come in, take her hard work, and 10% of his own material, and then profit

    The 10% of original material wasn’t even all his.

    Everyone keeps overlooking the fact that Vander Ark wasn’t the only person who was responsible for the Harry Potter Lexicon website. The website was a group fan project with many contributors: Vander Ark was the editor and webmaster.

    Stanford’s press releases, as well as the brief, keep repeating this fact (which is accurate): the online Lexicon was created by a large number of contributing fans, and Vander Ark coordinated that.

    Which is why Rowling supported it: it was a group fan project.

    But the planned RDR print version was playing on the fans’ contributions for the financial benefit of Vander Ark and the publisher. No financial benefit was to accrue to the fans, even in those cases where their work was contained in the manuscript (there was quite a bit of questioning about it in the trial, and Vander Ark suggested that he “might” offer compensation to some of the contributors whose work was used).

    It’s not at all clear that Vander Ark owned the intellectual property rights to any of the material in the manuscript that was submitted in the litigation, actually.

  28. Jane
    Sep 11, 2008 @ 14:55:21

    Oh, so many things.

    But if the proposed work was 90% her material, then he wasn't protected by fair use. And he admitted it by asking for permission.

    There is no admission of guilt here because you can, in copyright infringing cases, believe you are not infringing and still be found to infringe. The converse is true. Permission is only relevant if you get permission because it is a get out of jail free card. I can’t emphasize enough that the alleged infringer’s state of mind is not a consideration in determining whether infringement happened.

    Yes, he used Rowlings words in his book to the tune of 90% of his content being her content. In Google’s case, they used 100% of the original copyright holders’ work and only in a smaller format.

    As to the profitability issue, that is the entire point I am trying to get at. If you use the fair use test and make profitability (i.e., how much does the infringing work reduce the profitability/marketability of the original work ), then you have a better balance between the owner’s rights to profit from their work and to give the original creator incentive to create more work and the advancement of creative thought, arts and sciences which is the original Constitutional grant.

    Copyright law is a balance between incentivizing creative work through monetary payment and rights ownership and the benefit of the public of the advancement of creative arts and sciences.

    Copyright law does not solely exist for works of fiction but for music, photography, software code, and so forth. It is my opinion that stringent reading of the copyright law, one that weighs more heavily in favor of entrenching derivative work rights to the copyright holder actually works to stifle the very fundamental Constitutional grant.

    To allow derivative works does not prevent the original copyright owner in preparing their own derivative works. If the market could not bear two such works, then it would not be fair use for the alternative creative work. But if the market could bear two or five or ten alternative works without reducing the profitability of the original creators work and is suitability transformative (as the court in Google determined that a catalogueing and indexing was) then where is the harm to the original author? It’s not a financial one.

  29. Jane
    Sep 11, 2008 @ 14:57:25

    Ms. Sullivan – I’m ignoring it because that’s not what I see the issue is and that’s not what the court decided the case on. If Vander Ark’s work took other people’s work and passed it off as his own, that would be wrong, but Rowling and WB doesn’t have the standing to sue over that.

    Further, if VanderArk did contain a substantial amount of work performed by someone else, how could 90% of his book be JK Rowling’s work? That seems internally inconsistent.

  30. Mori
    Sep 11, 2008 @ 17:36:57

    OK, to everyone who is against Jo on this:

    I am a graphic artist more than a writer but still, I paint. If someone was to gather my online gallery into a book and publish it with the minimal amount of commentary, oooh boy, would I be pissed. Also, if someone took my poetry and prose and published it even though I said no, I’d be pissed too, no matter how much of a fan that person would be and even if I was credited for my work. Why? I spent hours, days and years doing that work and someone sued the good old copy/paste and did a lot less work (maybe even months, I don’t care. It’s nothing compared to the amount of work I had to do) and earned money. I don’t care if I earned more money than he/she, it’s still not right, because it’s plain theft.

    If you ran a bakery and spent years on perfecting your cakes and bread and then someone took your recipe and started selling the same cakes and bread for less… would you be happy? Even if it had a big sign “According to this and this person’s recipe”?

  31. Marianne McA
    Sep 11, 2008 @ 18:58:51

    Jane, I don’t follow your reasoning.

    If Vander Ark’s beliefs and motivations are irrelevant, then it’s irrelevant that he performed an ‘enormous endeavour’ in setting up a fan site.
    If, on the other hand, you’re allowed to feel that Rowling owed him something because she benefited from his work, then it’s equally legitimate that I feel that he owed her something, as the person that created that work.

  32. Jane
    Sep 11, 2008 @ 19:44:53

    I’m not sure what you are asking Marianne. I don’t think Rowling owed him anything. In my previous comment, I was referring to the victimhood of JK Rowling, i.e., I don’t see her as a victim at all. She benefited from the existence of the fan site. This doesn’t give legitimacy to the copyright claim in any way.

  33. Luiz
    Sep 11, 2008 @ 21:00:55

    Jane, so the point is mainly about profitability. Are you saying that anything is Fair Use if the copyright owner is a billionaire? That a person can publish a book mostly filled by the work of a very wealthy person without being considered a criminal (“it’s just unethical, but I can live with that, mwahaha!”)? And that the real author can only stand there and watch as this lazy individual makes money by other people’s efforts?

    If that’s the case, I don’t know about you but I don’t think that’s fair at all. But maybe I’m too naive for wanting the Law to value Ethics.

  34. Jane
    Sep 11, 2008 @ 21:16:54

    Luiz – no, that is not what I am saying at all. I guess I can’t say anything more than I have previously state. Copyright law is a balance between serving the public and incentivizing creators of original works. In the Rowling ruling, I think it is another example of an overbroad application of the copyright law in favor of the creator to the detriment of the public.

    I’m arguing for another test that would more fairly balance the serving of the public in promoting future creative works and providing incentive to others to create original works.

    In making the argument for promotion of the marketability factor (which is one of the four elements in measuring fair use) versus the “amount used” which is what the judge hung his hat on (and probably right fully so given the prior 2nd Cir decision of Castle Rock), I believe that it would create better quality for the public as well as promoting other creative works and still provide the benefit to the original creator.

    In reference to the economic issue, it doesn’t measure the wealth of the original creator. The factor measures whether the alternative derivative work impedes the marketability of the original author’s work(s). This does not take into account whether the original author is wealthy or poor but what the market can bear for both works.

    In other words, if the authorized Rowling encyclopedia were published and sold 5,000 copies and RDR could show that it by publication of its work, its competing encyclopedia, that the demand for Rowling’s volume was unchanged, then the marketability factor would weigh in favor of fair use.

  35. Christine Merrill
    Sep 11, 2008 @ 21:36:31

    So you are arguing that there would be room in the market for 2 lexicons, and that the existnace of the first might not damage the sales of the second, and might increase sales of the series and so benefit the author?

    Or am I confused?

    Because in a market that wasn’t tight, I might buy that arguement. But it’s really hard to get published, and stay that way after selling, and publishers don’t want two of anything.

    Unless you’re J K Rowling. Then you can probably write whatever you want.

    But the average midlist author is going to be told, “It’s already been done,” and be forced to shelve the project. It always comes down to sales numbers, and it only takes a hint of a worry to scare a publisher off of a project. Unless you are a huge name, it is a lot easier to damage the income stream than you would think.

    From the point of the already published, a more liberal interpretation of the copyright law might encourage the potential creativity of others, but it’s not doing anything to encourage the already creative people to keep producing.

  36. Jane
    Sep 11, 2008 @ 21:48:31

    Yes, Christine, I’m arguing that should be a test in the Fair Use argument. Place the burden on the infringer to prove that the publication of the 2nd encyclopedia is not going to have economic harm to the marketability of the original author’s work. If the infringer is successful in that argument, then so long as it is transformative (i.e., this is scholarly non fiction versus the fictional works prior), the alternative work would be fair use.

    This is the argument, I believe, that is used by the 9th Cir to decide in favor of Google.

    I am not anti Rowling, pro Steve Vander Ark. I am not anti author. I am pro public. And it is my personal belief that overbroad copyright rules really hamper those who make a living from creative works. And, no, I have no plans to write an alternative work of anyones.

  37. Kat Suki
    Sep 11, 2008 @ 22:02:19

    The factor measures whether the alternative derivative work impedes the marketability of the original author's work(s).
    ~
    That’s just it. Vander Ark copied, VERBATIM, the information contained within two companion books belonging to Rowling. This is in addition to all of the verbatim and strongly paraphrased text of the seven novels. Also, though not part of the lawsuit, there were the VERBATIM copying of something known as the ‘Daily Prophet’ newsletters and more than 100 Famous Witches and Wizard cards aka Chocolate Frog Cards which are part of the EA games and the Chocolate Frog candies. All of them are copyrighted and trademarked. The judge did find that the verbatim copy of those companion books would have supplanted Rowling’s market, to date, these two books of 55 plus pages each have worldwide garnered $30 million in sales.

    Yes, Vander Ark copied verbatim and strongly paraphrased 91% of the copyrighted Harry Potter works. That just leaves 9% for his originality. But wait, 4 of that 9% are etymologies from outside sources {sources that are also copyrighted to other people}, etyomologies that were, yep, copied VERBATIM. Now we’re down to 5% originality on Vander Ark’s behalf. But wait, there were four editors for this book that he tried to get to market though he claimed to be the original source of ALL the material; this does not include any of the fan submitted content to his website, some of which is alleged to have been in his book. Wow, 5% originality divided amongst 4 editors. Yep, that can’t possibly be infringement. Not!

    Vander Ark, via his affirmative defense, admitted to the infringement but claimed Fair Use. Sorry, there’s no way what he did was Fair Use and the judge ruled on all 4 factors against RDR publishers.

    Another thing, Steve never contacted Rowling to request permission to publish this book. Never even told her he intended to publish it. No, what he did was go to her agency and beg for a job, according to his personal emails that were submitted in court. He wanted to be either an editor on Rowling’s own intended encyclopedia, or better yet, a co-author. That’s just creepy as hell, frankly. Hi, I’m your biggest fan, gimme a job! He was politely turned down. That’s when he decided to go ahead with his own book.

    Why harp about the PR the site generated? Tolerated infringement is at the discretion of the copyright holder, is in no manner an approval or a surrendering of copyrights, and beyond that the site itself was not at issue. The book, which is still viewable in the court documents, was. So the website generated PR for Harry Potter, so what? It also generated PR for Vander Ark, who was highly respected and well thought of in the HP fan community. A frequent guest of honor at Potter events in the US and abroad. It even got him on the HP film DVD and aired A & E special. So much recognition did he have, so much standing, that he’d decided to quit his job and make a career off of Harry Potter.

  38. Roku Kyu
    Sep 11, 2008 @ 23:19:04

    Jane, I would ask that you take the time to read Judge Patterson's decision on the Rowling/WB suit. It's 68 pages but a surprisingly easy read, containing clearly spelled out points without too much legalese.
    Link: <a href=”http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/92/”

    I've been following this case for nearly a year (since Rowling/WB first issued a C&D order to RDR books). There are many important points you're missing that are spelled out in the case decision.

    (1) The Lexicon website does not have the same content as the Lexicon print version. Almost all of the independent analysis and commentary on the website was NOT in the print copy, due to being written by fans other than VanderArk: fans who would then have to be given a portion of the profits had their work been included.

    (2) Judge Patterson clearly spelled out how the Lexicon failed to be a transformative work, by dint of having 91% of its content being word-for-word copies or close paraphrasing of Rowling's unique phrasing used in her books, MOST OF WHICH WAS NOT CREDITED TO ROWLING BY EITHER FOOTNOTES OR QUOTATION MARKS. It was plagiarism, not independent analysis. Judge Patterson correctly pointed out that as written, the unique phrasing appeared to give credit to VanderArk for those words.

    (3) If the print Lexicon was permitted to be sold as it is, with uncredited verbatim quotations of Rowling's words, songs, and poems, it was conceivable that VanderArk would then have the right to market those songs as his copyright and actually challenge Rowling as infringing on his rights should she attempt to do the same. Yep, it's true, and it's right there in the judge's decision.

    (4) As KatSuki said above, Judge Patterson went on to assert that the market damage was not primarily to the seven novels, since they were works of fiction, but to Rowling's two companion reference books to her series, “Quidditch Through the Ages” and “Fantastic Beasts and Where to Find Them”, since they were reproduced basically word-for-word in their entirety in the Lexicon.

    (5) For another commenter who felt that Rowling should have taken down the Lexicon website if she wanted to defend her copyright-‘you are confusing trademark law with copyright law. Copyright is intrinsic and doesn't need to have every transgression challenged to retain rights to one's own work.

    As an aspiring author myself, I'm very grateful to Rowling for using her economic might to bring this lawsuit and defend the rights of artistic creators as well as inspire a clearer definition of copyright. If you read Judge Patterson's conclusions, he is very careful to defend the right of true transformative works. In fact, if you bother to search Amazon.com, you'll see the dozens of Harry Potter transformative works that Rowling has previously allowed to go into print. The difference between these works and the Lexicon is that the authors of these printed works actually bothered to go to the effort of added insightful analysis and having the majority of the words in their works to be their own.

    Steve VanderArk took JK Rowling's words, ideas, and passages, and put them in alphabetical order. This involved almost no creative effort on his part-‘he had all the creative input of a copy-pasting file clerk.

    Most of all, as a fan (not especially of Rowling's work but of other books and TV shows), I'm glad of the failure of the argument that Rowling allowing the not-for-profit Lexicon fan website to exist was tantamount to giving permission to any for-profit print version. If the judge had agreed with this argument, every internet fan site would immediately have to be shut down by show and book creators, or those creators would risk losing copyright protection for their creations.

  39. Jane
    Sep 11, 2008 @ 23:52:04

    Roku – I have read the decision. I am a lawyer and am unafraid of legalese. I think that Patterson’s decision, in light of the prior rullings, particularly the Castle Rock decision which would be considered authoritative precedent to Patterson’s court, is probably well thought out. I just disagree with his application (and that of the 2nd Circuit) of Fair Use. In is, in my opinion, directly contravening the finding of the Perfect Ten decision wherein 100% of the copyrighted work was used and still found to be transformative because of the manner in which it was used.

    Further, in terms of marketability, I found that portion of the decision to be the weakest. There was no evidence put forth that I could see that there would be a negative impact on the marketability of Rowling’s own encyclopedic works. There was no testimony by buyers that they would order less or bookstore owners that they would sell less. Indeed, I read commentary that people believed that there would not be a reduction.

    As for subsequent challenges, it is generally held that derivative works hold very thin copyrights and it is even possible that a work, while not being infringing or being fair use, would not have a copyright at all, so I didn’t see that as convincing either.

    The fact is that the overwhelming weight of scholars and even IP lawyers and judges find that the existing copyright application does not meet with its Constitutional grant and that it’s overbroad application will indeed lead to consolidation of copyrights in the hands of a few conglomerates and those that make a living on the copyright will find their rights and ability to profit reduced dramatically. Ultimately, the public is the one to suffer in decreased quality, product, and creativity, but I guess time will tell.

  40. Kat Suki
    Sep 12, 2008 @ 01:11:02

    The P10 appellate ruling stated that Google did not infringe. This is true. But how did the court reach that determination?

    By showing that Google never displayed the full image, but merely a thumbnail attached with a link that “indirectly facilitated infringement”. Since they never had in their possession the actual ‘full size copy’ in which to disseminate then they can’t be held liable for distributiion. Although P10 made their prima facia case they could not overcome Google’s affirmative defense.

    Not so Vander Ark’s Lexicon. The book would have directly copied and disseminated someone else’s copyrighted works; it was at best minimally transformative which is why it lost on all four factors.

    Frankly, I think it sets a dangerous precedent to take the majority if not the entirety of someone’s work, reproduce it in an alphabetical context, fail to properly cite the work, throw in a few adverbs and adjectives and lame jokes, slap your name on it as an ‘original’ work, sell it and say to hell with the copyright holder. That’s theft, pure and simple.

  41. allison
    Sep 14, 2008 @ 23:01:29

    I think the difference here between the google ruling and this ruling is the argument of profitability. Google is a free to the public service. I do not pay anything to use it just like I do not pay to use the Lexicon.

    I would, on the other hand, have to pay for google’s results were they to bind up their results into a book just like I would have to pay for SVA’s book.

    The argument could be made as to the intent to profit. With the online applications – there is no intent to profit directly from the consumers. With the book versions, there is an obvious intent to profit.

    Jane – in your opinion, does this have much bearing at all?

  42. The Principle of Fair Use and Image Usage for Bloggers
    Jul 29, 2012 @ 07:32:21

    […] More on Rowling and limits of Fair Use […]

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