A DANGEROUS PRECEDENT? PLAINTIFF The Harry Potter series of books written by J.K. Rowling created a furore of sorts where each copy of the seven series book was sold out before it was published. A work of non- fiction created by Rowling which described the life of a boy named Harry Potter and him growing up learning magic with his friends at a school of witchcraft and wizardry called Hogwarts.
The first book was published in the year 1997. The last book was published in the year 2007. Rowling owned the copyright in each of these seven books. The books have gone onto to win innumerable number of awards like the children’s literary award and the British Book award to name a few. The greatest achievement of the series is the fact that it encouraged children and adults alike to read in this age of the Internet and television where the reading habits of people are on the decline.
Warner Bros. Inc. obtained the exclusive film rights from J.K. Rowling for the seven book series. Warner Bros hold the copyright for each of the movies. They licensed certain rights to Electronic Arts to create video games based on the book. J.K. Rowling also came out with a short series of fictional newspapers titled “The Daily Prophet” which were published and distributed to fans in the United Kingdom. She owns a copyright on the above as well. She also wrote two companion books which very short in nature the Harry Potter series titled “Quiddich Through The Ages” in the year 201 and “Fantastic Beasts and Where to Find Them” alos in the year 2001. The proceeds from the sale of the abovementioned two books was given to the charity Comic Relief.
Rowling on numerous occasions since she began writing these books has mentioned that she wanted to write an Encyclopedia of all the information in the various Harry Potter books.
DEFENDANTS RDR Books is a publishing company based in Michigan, U.S.A., that wants to publish the book known as “The Lexicon”. Steven Vander Ark used to be a library media
specialist and worked at a middle school in Michigan. He is the author of the abovementioned publication and is also the author and owner of the Harry potter Lexicon website. This website is the most famous Harry Potter website on the Internet and has received accolades from non other than J.K. Rowling.
Vander Ark is an ardent follower of the Harry Potter series and used to take personal notes and kept track of the details and elements in the series of books. His notes consisted of descriptions of the characters, spells, fictional objects etc. He began work n his website in the year 1999 and it was commenced formally in the year 2000. His aim and object in the creation of the same was to create an encyclopaedia that collected and organised information from the books in one central place thereby making reference much more simpler and convenient.
The site features things like the Encyclopedia of spells, Encyclopedia of potions. The Bestiary etc. Over an above this Vander Ark has also included a variety of supplementary material1.
The site has had about 25 million hits a year. It also was the only site among numerous Fan websites which created a timeline for all the various events in the book. A diagrammatic representation of the 9 ¾ at Kings Cross2. The website is also multi lingual and supports the French and Spanish language beside English with other languages in the pipeline. It also has an entry in wikipedia. Vander Ark’s website also received the HPL award for a fan site given by J.K. Rowling in the year 2004. She also made the following statement on her website:3 “This is such a great site that I have known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter”
1 2
Warner Bros Entertainment Inc. and J.K. Rowling v. RDR Books at 6 Place where trains depart for Hogwarths. 3 http://www.telegraph.co.uknews/1895676/Facts-about the-Harry Potter- Lexicon-website.html
Cheryl Klein4 had also written to Vander Ark on July 205 commenting and thanking him for the great help that the website was to his staff who referred to it innumerable times to verify a fact or to answer a query they had.
RDR BOOKS The President of RDR Books is Roger Rapport5. Vander Ark came to his notice when a local newspaper ran a story on him. He immediately recognised the potential which Vander Ark had from the perspective of a publisher. He contacted Vader Ark to make is website into a hard copy and publish the same.
Vander Ark had numerous concerns of the same but Roger Rapport that everything was legal.
Rapport even before the initial meeting had been working to secure foreign publishers for the proposed Lexicon project and had contacted Methuen Publishing in the United Kingdom to gauge their interest in doing such a project. He was marketing the same as the “definitive” Harry Potter Encyclopedia6.
PROCEEDINGS The proposed publication of the encyclopedia came to the plaintiff’s notice when Mr. Neil Blair
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of the Christopher Literary Agency saw an advertisement on
www.PubishersMarketplace .com for the oncoming publication of the same. A notice by email was sent to Vander Ark by the counsel of the plaintiff’s on Septmber 18, 2007. The contents of the email were to the effect that Vander Ark’s publication was infringing the rights of the plaintiff’s. Roger Rapport replied to that notice that he had to study the various issues involved with his legal advisors.8
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Senior Editor, Scholastic Inc., The American publishers of the Harry Potter series http://blogs.wsj.com/law/2008/harry-potter-lexicon.author/ 6 Supra at fn. 1, pg 11 7 Literary agent of Rowling 8 Supra at fn. 1, pg 12
On receiving no concrete answer from the defendants the plaintiff’s counsel wrote again emphasising the concern of their client. A Cease and Desist letter was sent by RDR Books, the defendants in the instant matter on October 11, 2007 claiming that the plaintiff’s had violated Vander Ark’s right in the “Hogwarts Timeline”. On October 19, 2007, the plaintiff’s replied asking for copy of the print version of the Lexicon to aid its evaluation of any claims. The request was refused by the defendants.
Two more letters were sent on October 19, 24 after which the plaintiff filed a suit against the defendants on October 31, 2007.
ANALYSIS The Lexicon contained every character every documented or introduced in the Harry Potter Books. All spells, potions, magic chants, magical items, characters, history, places were documented. All this information was spread all over the series of books. The information is also followed by the reference from which book of the series it was taken from. Thus Vander Ark did clearly put his labour into the work that was the Lexicon.
The question arises as to whether the Lexicon comes under the gene of non- fiction reference guides to fictional works. There have been various books to that order like the Breaking of the Code which was a guide to the controversial Da Vinci Code by Dan Brown or works similar to JRR Tolkien.
In the United Stets of America to prove copyright infringement there are two conditions which must be fulfilled. They are:(i) (ii) ownership of a valid copyright copying of the constituent elements of the work that are original.9
The plaintiff has to show that the copying is actionable “by showing that the second work bears a substantial similarity” to the protected expression in the earlier work.10
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Feist Publ’ns Inc. v. Rurall Tel A Servs. Co., 499 U.S.340, 361(1991) Repp v. Webber, 132 F.3d 882, 889 (2 nd Cir. 1997)
The question about the ownership which is the first condition is very clear as Rowling is the owner of the series of books without a doubt. As far as the second condition is concerned the judge came to the conclusion that Vander Ark had borrowed too much from the works of Rowling. Vander Ark had also admitted that he borrowed his work from that of Rowling’s but his contention was that it constituted fair use for derivative works. Furthermore he had also copied numerous phrases verbatim from her books. Vander Ark also borrows heavily from the companion books.
The defendants also argued that the Lexicon was not substantially similar to the Harry Potter Books. 11 The test related to substantial similarity is whether the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement had occurred. 12 The former addresses the amount of copying of the copyrighted work that is copied, while the qualitative component address the copying of protected expression.13
As far as the quantitative test is concerned the Court came to the conclusion that the Lexicon copies a sufficient quantity to find substantial similarity between the Lexicon and Rowling’s Novels The 450 page Lexicon draws most of its material from the 4,100 page Harry Potter series. The copying is even more from the books like the Fantastic Beasts and Quidditich through the Ages. 14
In regard to the qualitative test, the Court came to the conclusion that the Lexicon changes a few words and phrases from the original or rewrites the original dialogue in the third person and therefore is substantially similar.
The next point to analyse is whether the right to control of derivative works can be controlled. According to 17 USC 101 of the Copyright Act, derivative work is: “a work based upon one or more pre-exsisting works, such as translation, musical arranagement, dramatisation, fictionalisation, motion pictures version,
11 12
Supra at fn. 1 at 31 Nihon Keizai Shimbun, Inc. v. Comline Bus Data Inc., 166 F. 3d 65, 70 (2d. Cir 1999) 13 Ringold, 126 F. 3d at 71 14 Supra at fn. 1 at 33
sound recording, art reproduction, abridgement, condensation or any other form in which a work may be recast, transformed or adapted.” The matter of Well Made Toy Mfg. Corp. v. Goffa International Corporation15 was of the view that a work is not derivative us because it is based upon the preexisting work. If this was the case all book reviews would come under the category of derivative work. The Plaintiff also was of the opinion that the work was an unauthorised abridgement and should be recognised as such. The Court ruled in the negative against this. They were also of the opinion that the Lexicon copies a substantial material from the Harry Potter series and does not merely transform material from one medium to another.16
An integral and important pat of the Copyright law is the doctrine of faisr use. This is important to obtain the objective of for promoting the progress of Science and Arts. This doctrine is expressly mentioned in Section 107 of the Copyright Act as follows: In conclusion isn numerous judgements17 the court has inquired as to whether the new work supersedes the objects of the original creation or instead adds something new, with a further purpose or different character altering the first with new expression, meaning or message. The court was of the opinion that the Lexicon was more of a reference guide which borrowed its material from the Harry Potter series, therefore nothing new had been added and no value was added to the original works.18
V.C. MATHEWS Advocate Verghesemathews@in.com
354 F.3d. 112, 117 (2nd Cir. 2003) Supra at fn. 1, pg 40 17 Bill Graham Archives v. Dorling Kindersley Ltd., 448 F. 3d. 605, 608(2d. Cir. 2006); Elvis Preseley Enters, Inc. v. Passport Video, 349 F. 3d 622, 628(9 th Cir. 2003) 18 Supra at f. 1, pg 43
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