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J.K. Rowling v. RDR Books: Harry Potter Reference Guide Not Protected by Fair Use

Author: Matt Kellogg

The Lexicon originated from author Steven Vander Ark's website, The Harry Potter Lexicon, an online reference for the fictional world of Harry Potter. Marketed by RDR as the first A-Z guide in print to incorporate Rowling's seventh and final Harry Potter novel, The Lexicon drew heavily on the entire series as well as two short, encyclopedic companion books also written by Rowling. In compiling The Lexicon, Vander Ark culled, quoted, and closely paraphrased from all nine works, often with only sporadic attribution.

The court first found a prima facie case of infringement, based on the large quantity and "substantially similar" quality of the copying. The court did not consider The Lexicon a derivative work, though, because it created a new purpose for the copyrighted material instead of merely abridging it or presenting it in a different medium. The court's analysis then turned to the question of whether The Lexicon constituted fair use, as determined by the four prescribed factors: (1) purpose and character of RDR's use; (2) nature of Rowling's work; (3) amount and substantiality of RDR's use; and (4) market harm to Rowling.

Most of the discussion of fair use centered on the first and third factors. The purpose of The Lexicon was transformative, taking Rowling's "expressive" narrative works and altering them for the "practical" purpose of an encyclopedia. Excessive borrowing from the companion books, however, as well as a failure to minimize the copying of artstic phrases and passages undermined this transformative purpose. For equivalent reasons, The Lexicon used a greater portion of the copyrighted works than was "reasonably necessary."

In considering these factors, the court placed particular emphasis on The Lexicon's use of the companion books, which was significantly less transformative than that of the novels because the companion books were so brief and already in catalogue form. The court also suggested that if The Lexicon had presented only the "bare fictional facts" of the novels, instead of "retell[ing] parts of the storyline," RDR might have made a stronger argument for fair use.

Taken together, the first and third factors tipped in Rowling's favor, as did the second factor, which found Rowling's works to be at "the core of copyright protection," and the fourth factor, which found a market harm to the companion books but not to the novels. Despite Rowling's arguments, this market harm did not extend to Rowling's planned encyclopedia; because a Harry Potter encyclopedia is not a derivative work, the court said, the market for such publications is open to competition. Yet there was potential harm to the market for truly derivative works, like a Harry Potter musical production or poetry collection, which would be adversely affected by The Lexicon's unlicensed reproduction of the novels' songs and poems.

As a result of this analysis, the court concluded that RDR had not proved an affirmative defense of fair use. To prevent the irreparable harm of copyright infringement and thus maintain "the incentive for original authors to create new works," the court issued a permanent injunction against RDR's publication of The Lexicon. The court also awarded only the minimum statutory damages of $6,750 because The Lexicon had not been published.

Throughout its opinion, the court drew significant distinctions between The Lexicon and the reference works in question in Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., and Paramount Pictures Corp. v. Carol Publ'g Group, Inc., respectively. Whereas those works served either to "repackage" the copyrighted original or to retell an abridged version of the story, The Lexicon instead intended to provide readers with useful references to the original works in a new, easily accessible form. Thus, at the conclusion, the court stated that "[w]hile the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon's purpose of aiding readers of literature generally should be encouraged rather than stifled."

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