image As David just pointed out, publication of a print edition of the Harry Potter Lexicon has been ruled not to be a fair use. However, there were a couple of points of interest in the decision (available here) that deserve a closer look.

For one thing, the illicit Harry Potter e-books to which I have referred a number of times are specifically mentioned on page 51 of the 68-page document—the plaintiffs accuse Stephen Vander Ark of bad faith (as a part of evaluating the "purpose and character" of the work, see below) in using "unauthorized electronic copies of Rowling’s works, obtained by improperly scanning each of those works." (I would be inclined to reply that, no, they must have properly scanned them, because improperly scanned copies would not be legible at all!) This argument is dismissed, however, because the works were still available to the general public as printed books.

But the main point of interest concerns how the court came to the decision that the Lexicon was not fair use.

Although I am not a lawyer (nor do I play one on TV), the decision seemed to be a very well-balanced one. Although the finding was in favor of J.K. Rowling and her publisher in this particular instance, the finding went to great pains to state that—as a general rule—reference books of the sort that the Lexicon was trying to be are a protected fair use of copyrighted works.

The Fair Use Test

To come to its conclusion, the court applied the standard four-factor fair use test as set down by the Copyright Act of 1976, 17 U.S.C. § 107, which considers

  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. the 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.

The primary tipping points against the work, as summarized on page 62 of the PDF, were points 3 and 4.

In terms of the amount of text used, the court found that Steven Vander Ark quoted and paraphrased far more of Rowling’s prose than was necessary to the purpose of such a reference guide—and in some cases did not properly cite or quote the material it directly copied. The decision charitably suggests this might have been due to the enthusiastic, fannish nature of the original work (though it also notes Rowling’s opinion that it was due to "laziness").

In regard to the effect upon the potential market, it actually did not turn on Rowling’s claim that the Lexicon would damage the market for a reference book of her own:

Notwithstanding Rowling’s public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works. […] The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one.

Instead, it was felt that the Lexicon might damage sales of the two "Harry Potter schoolbooks," Quidditch Through the Ages and Fantastic Beasts and Where to Find Them, since they were short enough that the Lexicon incorporated a majority of their content. However, since the four factors must be considered as a whole, it is unclear whether this by itself would have been sufficient to damn the Lexicon had it not overquoted Rowling.

In the end, the judge awarded a permanent injunction against the Lexicon‘s publication. Because the Lexicon print edition was never actually published, the judge awarded the minimum amount of damages under the statute: $750 for each of the seven novels and two schoolbooks.

The Decision’s Effects

Vander Ark and his publisher, Roger D. Rapoport, are weighing their options for moving forward from here. But whether they appeal or not, Rowling’s worries about unauthorized lexicons may not be over.

Rapoport and Vander Ark originally wanted to rush the Harry Potter Lexicon to print in order to be first on the scene with a complete Harry Potter reference book, immediately after the publication of the last Potter novel. Thanks to the lawsuit, this obviously did not happen.

However, in the months that have passed since the court case kicked off, there has been ample time for other would-be lexicographers to start projects of their own which could avoid Vander Ark’s mistakes and pass the fair use tests in a court of law. By recognizing that they are legitimately fair use in general, this ruling opens the door for their publication.

Rowling might have been able to put a stop to the Lexicography due to its blatant overquoting—but now that this decision has provided a blueprint for how to pass fair use muster, she won’t get that lucky again.

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TeleRead Editor Chris Meadows has been writing for us--except for a brief interruption--since 2006. Son of two librarians, he has worked on a third-party help line for Best Buy and holds degrees in computer science and communications. He clearly personifies TeleRead's motto: "For geeks who love books--and book-lovers who love gadgets." Chris lives in Indianapolis and is active in the gamer community.


  1. Many thanks for an excellent description of the decision. I was particularly gratified that the judge issued the minimum possible fine and apparently didn’t require RDR Books to pay Rowlings’ legal costs. JKR has more than enough money to cover this, and the defendants did not intend any wrongdoing. Copyright law has a lot of grey areas.

    I’ve not read the decision yet, but here are my comments based on being an active participant in this lawsuit. From what you’ve said, my suspicions about the weakness of the defendant’s case seem confirmed. I’m also delighted that the judge seems to have taken a step back from Castle Rock (1998, see below) and ruled that it is legal to make reference works to popular fiction. Those who write them just need to be careful to take less and add more.

    Throughout most of 2002 I fought with the J. R. R. Tolkien estate’s lawyers in federal court in Seattle. The point of contention was my book-length LOTR chronology, Untangling Tolkien. I won, with the estate’s lawyers bailing out and offering to settle out of court just before the judge would have ruled on concurrent motions for summary judgment. The judge confirmed their fears when she dismissed their lawsuit “with prejudice” in January of 2003.

    “With prejudice” is a judge’s way of saying, “Don’t bring the dispute before me again. You have absolutely no chance of winning.” I like to tell friends that’s the best way to win. It’s definitive and skips the bother and expense of a court trial. Unfortunately, it doesn’t establish any legal precedence for others. My win couldn’t be cited in this Rowlings dispute.

    One reason I won is that we fought in the Ninth Circuit, which is friendlier to fair use than the notorious Second Circuit, where the Rowlings dispute was decided. The Second Circuit (New York) is home of almost all the major book publishers, so the judges and lawyers there grow up in a climate where appeasing deep-pocketed clients is very lucrative. The Ninth Circuit includes Hollywood, which for all its foulness doesn’t want to get harassed if a book-buster movie happens to resemble some obscure novel. The Ninth is more open to fair use.

    That meant I had a number of recent Ninth Circuit decisions that had gone my way, especially Kelly v. Arriba Soft, which went all the way to the appeal court level, so my judge had to follow it. She was perfectly free to ignore any ruling in the Second Circuit that hadn’t made its way to the Supreme Court. One lawyer even told me that if I won at the district and appeals level, the Second and Ninth Circuits would have been in direct conflict, and my dispute would have been on a fast track for the Supreme Court. “Interesting,” I thought.

    My case would have been a lot harder to argue in the Second Circuit. There a string of bad decisions and rulings back in 1998 have wreaked havoc on those wanting to do reference works on popular fiction (TV shows and movies). I had the legal counsel to a university press tell me that because of those decisions, his press is steering clear of popular modern fiction.

    The worst of the rulings was one against a book called the The Seinfeld Aptitude Test (known as Castle Rock), a decision that received almost universal criticism in legal journals. In it the court had ruled that the creator of a fictional world owns that world, so no one can describe it except as literary commentary. In practice, that means that the author has to have a lot of “Here, Rowlings is….” remarks. You have to work very hard to keep a book like that interesting, especially when what the fans want is for that fictional world to be treated as if it were real.

    I spent almost two hours on the phone trying to persuade the president of RDR Books to fight to keep the dispute out of the Second Circuit. But his lawyers seemed certain they could win there, and I eventually conceded the point, hoping the case would provide an opportunity for a Second Circuit judge to move away from the folly of Castle Rock.

    RDR Books other difficulty stems from the fact that the book draws from very few outsides sources. It really is mostly Rowlings ideas and often her very words. I didn’t realize that until I got a copy of it just before they went to trial. Then it was too late to get them to change the book. The author is a major part of that problem. The poor guy is apparently obsessed with Harry Potter. The book should have spent a lot of time commenting on other literature of the same sort. Elves mean something totally different in Shakespeare and Tolkien, If the book had talked about that, it would have stood a much better chance of winning. Literary criticism also has to display a critical spirit. If Rowlings handles a character poorly, it should say so. If she has an inconsistency, it should point that out.

    Why? Because if you read court decisions, one reason for fair use is to allow others to do something the author isn’t likely to do. Parody is legal, for instance, because most authors wouldn’t make fun of themselves or their writing style. This Rowlings book would have been in better shape legally if a second author had been brought on board, one with a literary background and one willing to be less than worshipful of Rowlings and her tale. Then this would have been an independent book engaging in obvious “scholarship” and having the right to compete with Rowlings’ official version whenever it comes out. The very fact that Rowlings was doing a competitive book would have played against her. She could not be objective because it was her book. She couldn’t be critical enough. That sort of thing. Remember, law is heavily based on a belief that competing points of view lead to truth. This author worships Rowlings so much, he seems incapable of competing with her.

    My dispute illustrates how this can be done. Looking back, I now realize that I had a hard case to win. Courts ordinarily do not allow you to take the “heart” out of a fictional tale. I had to remove and line up in chronological order virtually every event in the tale. My book describes what happens to each character on each day and references everywhere that account comes from. That required much work on my part to maximize my chance of winning.

    For instance, some have criticized my book for reducing the events in LOTR to bullet points. But doing that destroyed any argument that someone would read my book instead of Tolkien’s. My book is for reference only not for reading. I also spent quite a bit of time looking for errors and confusing points in Tolkien’s time line. Not many exist, but I found and commented on them, something the courts will assume Christopher Tolkien, the author’s son, might not do quite as objectively. I also inserted enough commentary that even the estate’s lawyers had to concede that they were in trouble, hence their panic and bailout. You can see the remnants of some of my arguments in the last chapter of the book, which is based on my literary arguments for fair use. Not being able to afford to hire experts in literature and law, I became one myself.

    I could do that because I did a lot of reading in copyright law and got advice from a wide array of lawyers. (Tip: Lawyers like to give advice in the hope you’ll hire them. Get a few minutes advice from as many as will talk with you.) I suspect that the lawyers representing RDR Books thought they could win with the book as it was and that might have been true outside the Second Circuit. But it’d have been better to do a major rewrite, making the book as legally bulletproof as humanly possible.

    In a legal dispute, it never hurts to win by a wide margin. It hurts terribly to lose by a small margin.

    –Michael W. Perry, author of Untangling Tolkien

  2. As a lawyer licensed in the state of New York, and being familiar with the Federal courts there, I am deeply offended at your allegations of corruption in the Federal judiciary of the Second Circuit, to wit: ” … so the judges and lawyers there grow up in a climate where appeasing deep-pocketed clients is very lucrative”.

    While the US legal system is deeply flawed, one of the things that I think is almost without question is the integrity of the Federal judiciary. To allege that the judges in the Second Circuit are benefiting financially from the presence of the publishing industry in New York is nothing less than a baseless libel.

  3. hear hear! Glad to see a well researched article/post about this situation – we’re certainly not getting that in the media that I’ve seen – at least not in the early articles about it! Just glad to hear someone else acknowledge that it wasn’t all about the court taking away our rights, LOL!

  4. I’m surprised Rowling hasn’t already actually written her book, after all she’s the one with all the coreect sources, if she wants to expand areas it automatically becomes canon so if she feels it’s a bit light she can expand as much as she likes.

    Would have been a way of stopping any other company jumping in as well.

    Maybe she’s going to wait until after the last film, that’ll give her a few more years anyway.

  5. Just a note: in the court case, Rowling’s side presented other reference books that were published that she was okay with, because they contained much more analysis than the Lexicon book. (I think I remember that in the trial, Rowling held up another encyclopedia and said, “I like this one, and they can put that blurb on the cover,” or something like that. They probably should, as it happens. *heh*)

    Now, the Lexicon site was very popular, so the book would likely have sold much more than these other encyclopedias, but one should note that the book, which consisted essentially of definitions and direct quotes, poorly cited and sometimes even without quotation marks, is *very* different from the site, which has a fair amount of analysis.

    I strongly support fair use, but fair use has to be *fair* (like, say, putting on Youtube a 30 second clip of your baby dancing to a Prince song heard almost unintelligibly in the background). This decision, though, was the right one.

  6. I have to agree with the judgement in the fact that it used to much copyrighted material and not enough material in it’s own. And as someone else pointed out, that was the main objection of Rowling, that and how poorly it was done. I enjoy seeing counterparts to books… but to have done it the way that it was done, I have to say that it was not done in the right way.

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