Publisher Appeals Ruling Against Harry Potter Lexicon

from the good-for-RDR dept

We were somewhat dismayed by the ruling against the Harry Potter Lexicon, a guidebook of sorts for the universe created in the Harry Potter series of books. J.K. Rowling argued against the book on emotional, rather than legal, grounds, but the judge still found it to be a violation of copyright, and not covered by fair use. For a variety of reasons many copyright scholars felt this to be a bad decision. However, since the judge put in place a rather low fine, it wasn't clear if the publisher would bother appealing.

A bunch of folks have been submitting the fact that RDR Books has, in fact, decided to appeal the ruling and to argue that publishing such a guidebook is, indeed, fair use. Hopefully the Appeals Court recognizes the problems of the lower court ruling and protects fair use for such guidebooks. Of course, some of us are still hopeful that even J.K. Rowling realizes that pursuing this case only serves to damage her reputation, and that she realizes (as she did when the Lexicon was just a website) that allowing fans to help explain and expand the universe she created only increases the value of her works.


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  •  
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    Rin, Nov 12th, 2008 @ 3:56am

    Because...

    Letting people expand and understand your ideas makes too much sense to allow...

    People need to be less concerned with making money, especially when you're as rich as Rowling is already, and maybe be concerned with the artistic value the series had before.

     

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    Anonymous Coward, Nov 12th, 2008 @ 4:11am

    its clear that J.K. Rowling is just frustrated that she didn't think of that before said publisher and that she cant capitalize on it.

     

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      Esahc (profile), Nov 12th, 2008 @ 7:28am

      Re:

      Actually, if she wanted to, she can still create an 'official' lexicon to her Harry Potter universe, and if done well, would out sell the unofficial lexicon. It's a wasted effort to fight a legal battle when she can be using her talents and her time to create something of her own.

       

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        Anonymous Coward, Nov 12th, 2008 @ 7:59am

        Re: Re:

        Actually, if she wanted to, she can still create an 'official' lexicon to her Harry Potter universe, and if done well, would out sell the unofficial lexicon. It's a wasted effort to fight a legal battle when she can be using her talents and her time to create something of her own."


        Yes, or she could just rest on her laurels and get lawyers to "try" and make her money by suing her fans.

        Guess we know which option she went for...

         

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        Petréa Mitchell, Nov 14th, 2008 @ 2:00pm

        Re: Re:

        "Actually, if she wanted to, she can still create an 'official' lexicon to her Harry Potter universe, and if done well, would out sell the unofficial lexicon."

        Indeed, she says she is working on just such a thing.

        You can leave out "if done well"-- if it's got her name on it, even with all the publicity given to the Lexicon by the trial, it'll still outsell the RDR book by orders of magnitude.

         

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    Anonymous Coward, Nov 12th, 2008 @ 4:25am

    God, doesn't she have ENOUGH money now? She'll make more off residuals for the movies this year than most of us will make in our entire lives.

     

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    some old guy, Nov 12th, 2008 @ 4:37am

    misguided

    No, most of J.K. Rowling's fans believe she is doing the right thing here.

    This "lexicon" is not a lexicon. It's a remix of Rowling's own works. Mike WANTS this action to be covered under fair use, because Mike believes that remixing audio tracks should also be fair use.

    But it's not.

    J.K. is *not* doing this out of greed at all. She spent far more money in legal fees than she ever hoped to get back. She's doing this because its the right thing to do.

    She's standing up for her rights. Good for her.

    You should not be allowed to remix a book and profit from the real artists work.

     

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      Chronno S. Trigger, Nov 12th, 2008 @ 5:34am

      Re: misguided

      "This "lexicon" is not a lexicon. It's a remix of Rowling's own works."

      Do we have citation for this? I'm assuming since Hoeppner said the basically the same thing that this must have a citation available.

      Since I don't have a copy of the book to review, I poked around on the web site. I saw a few quotes from the book but not much and even a quote from JK herself saying

      "This is such a great site...my natural home."
      - J.K. Rowling

      Since I see nothing about that in the lawsuit I'd assume she actually said it and has no problem with the site itself. The book has been described as a physical version of the site, so if that is true, than I don't see the problem.

      If this is just a copy-pasta from her book than I agree with you and her, but she or her lawyers need to make that vary clear and not make it sound like she has a problem with lexicons in general.

       

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        anonymous, Nov 13th, 2008 @ 7:41am

        Re: Re: misguided

        All of the case documents can be found on Justia. Follow the link and document 52 is the declaration of Steve Vander Ark. The attachments to it are the files that were sent to the typesetter that make up the Lexicon Book.

         

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      SteveD, Nov 12th, 2008 @ 5:43am

      Re: misguided

      So people who remix the works of those who go before them aren't 'real' artists?

      I guess that means as Rowling is a 'real' artist, everything in the Harry Potter books is a completely original creation, and broom sticks and wizards are her idea to own for the rest of eternity...

      ...or maybe that's a load of old rubbish.

      Its rather odd that Rowling was perfectly happy to let the lexington plagurise her work back when he was running the site freely promoting her work, but it only became an issue of her 'rights' when he stood to make some money out of it.

       

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        Fitz, Nov 12th, 2008 @ 6:15am

        Re: Re: misguided

        Since there have been several reference books about Harry Potter lore, it can be assumed that Rowling doesn't have a problem with them in general. The reason this particular book is being fought is because it's illegally using her words without quotes or citations and trying to essentially rob Harry Potter fans of their money. If it's just on the website, it's giving back to the community. If it's being charged for in a book, it's making a profit off of someone else's work at the expense of her fans who deserve better.

         

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        Anonymous Coward, Nov 12th, 2008 @ 6:25am

        Re: Re: misguided

        Hey, SteveD, it isn't our fault that the music you listen to sucks and requires little talent to "create." That is like saying audio engineers are "artists."

         

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          SteveD, Nov 12th, 2008 @ 7:15am

          Re: Re: Re: misguided

          This has little to do with music, but you do know there are remix 'artists' out there that get paid large sums of money by the majors to turn their pop releases into dance tracks to be sold to nightclubs? Right? Oddly enough they don't actually come up with new words or lyrics to do it.

          But this isn't about talent, its about fair use and value-added.

          The value added in this instance has nothing to do with plagiarism, but by remixing the work of Rowling in a way that gives it a new use that the original work lacked.

          People talk about the copy/pasting of words as if saying exactly the same thing with different words would be any lesser form of plagiarism. Its bizarre. How can it ever be anything else but plagiarism unless the guy adds his own ideas into the mix, and how then would it still count as a Harry Potter lexicon?

          This whole issue is all about ownership and control belonging entirely to the artist and never to the public, even if their artistic work is based of the cultural heritage of the public.

          And I still don't get how money being introduced suddenly turns this into a moral fight over the artists rights. Hell, when it was just website people were gaining info from it WITHOUT PAYING THE ARTIST. Surely by RIAA logic there must be something illegal with that.

           

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      Mike (profile), Nov 12th, 2008 @ 10:09am

      Re: misguided

      You should not be allowed to remix a book and profit from the real artists work.

      Why?

      If that remix is useful to many people, and increases the value of the original work, then what's the problem?

       

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        LostSailor, Nov 13th, 2008 @ 9:16am

        Re: Re: misguided

        Why?

        If that remix is useful to many people, and increases the value of the original work, then what's the problem?


        Whether it "increases the value of the original work" is irrelevant, and highly subjective. The fact that a "remix" of a book may be useful is also irrelevant. It is not the "remixer's" property or within their rights to do so.

         

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          Mike (profile), Nov 13th, 2008 @ 10:49am

          Re: Re: Re: misguided

          Whether it "increases the value of the original work" is irrelevant, and highly subjective.

          Actually, it's *extremely* relevant, and not at all subjective.

          It's relevant, because the whole purpose of copyright law is to increase incentives for the creation of new works. Increasing the value of works does exactly that.

          And the reason it's not subjective is because we have an extremely clear *objective* way to measure it: in sales. If people are buying the book, then it's clear they found value in it.

           

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          DanC, Nov 13th, 2008 @ 7:55pm

          Re: Re: Re: misguided

          You need to read up on the four factor test for fair use.

          1. the purpose and character of your use
          2. the nature of the copyrighted work
          3. the amount and substantiality of the portion taken, and
          4. the effect of the use upon the potential market.


          The first factor would cover the usefulness of the remixed work, and the fourth factor takes the question of value into account. So your assertion that those points are irrelevant is demonstrably false.

          As you can plainly see, all 4 factors are subjective, as determining fair use does not have a bright-line rule.

           

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    Hoeppner, Nov 12th, 2008 @ 4:47am

    That book has a 'vast' majority of it copy and pasted from Rowling's books. Fair use has got to stop when you start passing the 40-60% point 'and' profit from it.

     

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    Commentator, Nov 12th, 2008 @ 6:49am

    Thoughts on originality

    It is true that J.K. Rowling's works owe literary debts to many predecessors - for example, you see numerous themes from Tolkien being used (Voldemort have a precedent in Sauron, the Dementors in Ringwraiths, etc...). But Ms. Rowling managed to take these elements and turn them into an original tale of her own. Similarly, Shakespeare completely ripped off the plot-lines of Hamlet and numerous other plays, but still put his own unique stamp on them.

    There are numerous Harry Potter guides out there which describe the world of Harry Potter by combining elements of the books with deep original research and insight by their authors, and none of those has been challenged. The Lexicon is an alphabetical arrangement of various characters and objects from Harry Potter, the descriptions for which many times have been taken directly from the books where they were described. Hence, limited original content, hence the lawsuit. Ms. Rowling supported the website when it was simply a passionate hobbyist, but when it tried to become a money-making venture off of her content with nothing added except re-organization, that's where it crossed the line.

     

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    Commentator, Nov 12th, 2008 @ 7:35am

    Re: misguided

    Don't know about the remix world, but if the majors own the copyrights, then they have the right to pay somebody to re-release the content, in original or re-mixed format. If the remixer gets paid a flat sum, then they're basically an engineer. If they get paid residuals, I'd assume that it's more than a technical job, and requires some artistic judgement to turn it into a good track.

    Ownership is precisely the point. Rowling doesn't own the cultural heritage - you're perfectly within your rights to wirte about Nicholas Flamel, or to compare broomsticks in Harry Potter to real world myths. You can even quote from the Harry Potter books and put it in your text.

    But if the vast majority of your text is nothing BUT quotes - which is apparently the case - that's where the line crosses. If the remixing had involved significant creative effort, that probably would have counted. ie, writing a poem and rhyming "Dumbledore" and "Hellebore" isn't simply a remix, even if all words in your poem can be found in the books - otherwise every book would be derivative from websters. But simply arranging the terms in alphabetical order is not sufficient original content.

    JK Rowling would have been within her legal rights to have the free website closed down. She chose not to, presumably wishing to support the fan-base. But when it comes to finances, she decided you have to enforce your rights somewhere, or you lose them.

     

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      SteveD, Nov 12th, 2008 @ 3:29pm

      Re: Re: misguided

      But the method by which you sell your work has no baring on your credibility as an artist. If you needed to get paid in residuals to count as an artist then most painters wouldn't even qualify.

      If the point comes down to creative effort, I'd argue the act of remixing the work is effort enough. Taking something and converting it into a more useful form for the public adds value from the public's perspective. 'Originality' isn't nessesary for creativity, and is in itself an entirely relative concept.

      Rowling probably is within her rights at the end of the day, as the law more often falls on the side of copyright then it does fair use. But that isn't to say its a good idea to do this, or by not enforcing her rights she stands a chance of loosing them. Copyright can't be lost like trademarks.

       

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    Commentator, Nov 12th, 2008 @ 7:44am

    Further thought

    Here's a better music analogy. Suppose I were to try to sell a CD on amazon called "Best Guitar Solos Every". This CD had 100 tracks, each containing a 30 second recording of Van Halen, David Gilmour, Jimi Jendrix, etc... taken bit for bit from the original CDs.

    Do you really think the record companies wouldn't sue me into oblivion? I think they would, and rightfully so. Simply going through the exercise of finding this content and putting it onto a single CD isn't enough creative input for me to "own" this content, and hence sell it, although by your argument, it would.

     

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      Anonymous Coward, Nov 12th, 2008 @ 8:20am

      Re: Further thought

      that is a specious argument that misrepresents the lexicon book and website.

      First the Lexicon does more than reprint the words. infact about the only time it reprints passages is when it defines a term that is slang or british names for things followed by a few (short) excerpts of where it was used, with proper attribution.

      as for things that rowling "created" (seeing as how she just built off of and profited off the work of others, just like nearly all writers) they repackaged all the information in their own words with lots, and lots of references and attribution. you can see for example, the Death eater entry look at Avery:
      Attended Hogwarts with Snape and was one of his "gang of Slytherins," according to Sirius Black (GF27). The first Death Eater to crack and grovel at Voldemort's feet during the reunion at the Little Hangleton graveyard, having avoided Azkaban by claiming he'd acted under the Imperius Curse. Voldemort responded with the Cruciatus Curse, saying that he wanted 13 years repayment before forgiving the Death Eaters for their lack of belief in him (GF33). When Voldemort later learned from Rookwood that Avery's information about the Department of Mysteries had been wrong -- that only he himself or Harry Potter could safely take the prophecy sphere from its resting place -- Voldemort punished Avery again (OP26). Avery survived to fight in the Battle of the Department of Mysteries (OP35). Probably related (father/son?) to the Avery that attended Hogwarts with Tom Riddle (see above).

      clearly in the author's own words, but with lots of accreditation and references. perfectly valid under fair use.

      the rest of the content on the site is the same, summaries in the author's own word with lots of references. as to the top 100 songs example a better example would be to compare it to a countdown format where they add info and trivia about the song and group, current events when the song topped the charts, and lots of other content besides the 30 seconds of the song. and if someone did that, it is unlikely anyone would win any case trying to stop it.

       

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        A non Coward, Nov 13th, 2008 @ 7:36am

        Re: Re: Further thought

        Citation does not suddenly make everything OK. It is great when writing a term paper, but even a term paper is just not a list of facts with citations. And just because Steve Vander Ark worked hard on his theft, does not make the fictional facts his. There needs to be analysis and commentary to make the work his. The only part of what you posted that does not belong to JK Rowling is "Probably related (father/son?) to the Avery that attended Hogwarts with Tom Riddle". All of the rest are fictional facts that belong to JK Rowling. The book was too much JK Rowling and not nearly enough Steve Vander Ark. If you read the decision, you will see that the case was not even close.

         

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          Mike (profile), Nov 13th, 2008 @ 10:47am

          Re: Re: Re: Further thought

          All of the rest are fictional facts that belong to JK Rowling.

          Um. You cannot own facts, but thanks for playing.

           

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            anonymous, Nov 13th, 2008 @ 11:49am

            Re: Re: Re: Re: Further thought

            I agree with you that you can not own real world facts, but fictional facts belong to the creator of those facts. This was the reason a Seinfeld trivia book was found to be infringing, it was full of fictional facts that did not belong to the writer of the book. Just remember, fictional facts are not real, they are "fiction". "Harry Potter has Green eyes." is a fictional fact which belongs to JK Rowling and can be protected. Use enough of her facts, and you are infringing. "Frank Sinatra had blue eyes." is a real world fact and has no protection. You can write about Frank Sinatra all you want, he was a real person. This link is a brief discussion on fictional facts and their usage.

             

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    bob, Nov 12th, 2008 @ 9:01am

    Meh

    JKRowling the plagiarist Fuck her.

     

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    Anonymous Coward, Nov 12th, 2008 @ 9:23am

    "For a variety of reasons many copyright scholars felt this to be a bad decision."

    A link to one article by one person is hardly what I would call "many".

     

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    Petréa Mitchell, Nov 12th, 2008 @ 10:11am

    It's still WB

    Warner Brothers still owns nearly all the IP in the Harry Potter universe, and Warner Brothers is still the party actually suing.

    Yes, Rowling says she approved of the suit... but I expect the question was something like, "Do you want us to stand by and have 10 years of your work and reputation irreparably lost, or do you think we should take one unpleasant but necessary step to stop that?"

     

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    The Exiled V.2.0, Nov 16th, 2008 @ 10:44am

    Incorrect Statements - Corrected

    You said: . Rowling argued against the book on emotional, rather than legal, grounds, but the judge still found it to be a violation of copyright, and not covered by fair use This is incorrect. 1) Rowling didn't argue against the book at all. Her attorney did. Rowling was just a witness. 2) Her attorney did not argue on emotional grounds. Rather, her attorney(s) wrote a brief with a legal argument based on caselaw. Obviously, this legal argument fared better than RDR Books'. 3) Judges decide things based on matters of law, not matters of emotion. Rowling had no more or less effect as a witness than any other witness. He's seen a million people come crying through that courtroom.

     

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    Roger Rapoport, Jan 5th, 2010 @ 6:43pm

    The Lexicon by Steve Vander Ark

    A great deal has happened since the events referred to in this commentary. Hundreds of newspapers and magazines, including the Associated Press, have reported that Steve Vander Ark's Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials has been published by RDR Books and is widely available in the United States, Canada, the United Kingdom and elsewhere around the world. . Mr. Vander Ark has lectured widely across the United States and Britain on the new book which has been well received by the critics. Kirkus Reviews has high praise for the new book: "Stealing a march on all competitors, this wins points for currently and all but the most obsessive readers will find it unexcelled for ease of use as a quick reference guide." Many other reviewers have similarly praised the book.
     
        In a statement issued to Publishers Weekly, J.K. Rowling's lawyer Neil Blair said: "We are delighted that this matter is finally and favorably resolved."
        http://www.publishersweekly.com/article/CA6620114.html?desc=topstory
        Many legal commentators have written that Judge Patterson's decision http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/92/, which should be read by anyone interested in this case, makes clear for the first time that reference books are transformative under the Fair Use Doctrine. The judge created a very clear roadmap for the author of the Lexicon and other authors of similar non-fiction companion works on fictional series.
        In an article written for the American Library Association and the Association of Research Libraries attorney Jonathan Band explains "How Fair Use Prevailed in the Harry Potter Case." http://www.arl.org/bm~doc/harrypotterrev2.pdf. A great deal of additional up to date information is available at www.rdrbooks.com and also at the Stanford Law School Fair Use which represented RDR books, Visit http://cyberlaw.stanford.edu/case/rowling-v-rdr-books.

     

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