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
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- 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.