J. K. Rowling Wins $6,750 In Infringement Case

NewYorkCountryLawyer writes "J. K. Rowling didn't make enough money on Harry Potter, so she had to make sure that the 'Harry Potter Lexicon' was shut down. After a trial in Manhattan in Warner Bros. v. RDR Books, she won, getting the judge to agree with her (and her friends at Warner Bros. Entertainment) that the 'Lexicon' did not qualify for fair use protection. In a 68-page decision (PDF) the judge concluded that the Lexicon did a little too much 'verbatim copying,' competed with Ms. Rowling's planned encyclopedia, and might compete with her exploitation of songs and poems from the Harry Potter books, although she never made any such claim in presenting her evidence. The judge awarded her $6,750 and granted her an injunction that would prevent the 'Lexicon' from seeing the light of day." Groklaw has an exhaustive discussion of the judgement.

Comments

Hold your horses!

[AKAImBatman]

J. K. Rowling didn't make enough money on Harry Potter, so she had to make sure that the 'Harry Potter Lexicon' was shut down.

Whoa, whoa, whoa. Back up a moment! NewYorkCountryLawyer, I normally respect your posts, but this one is in need of some serious scrutiny.

As it happens, I was listening to the details of the case this morning on NPR. The problem with this specific book is not that it focuses on the Harry Potter series. The problem is that nearly every description was lifted from the books in a reasonably clear case of plagerism and/or derivitive works. Most reference books contain unique descriptions and commentary above and beyond the information presented in the source material. However, this particular lexicon made no effort to add such value over the books themselves.

In effect, it was merely a reorganization of J.K. Rowling's books into a dry reference. Something for which only the author has a legal right to grant.

THAT is why the judge found against the lexicon. And he did so with a strong warning that this book is an exception to the usually legal practice:

Issuing an injunction in this case both benefits and harms the public interest. While 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. As the Supreme Court suggested in Campbell, "[b]ecause the fair use enquiry often requires close questions of judgment as to the extent of permissible borrowing" in cases involving transformative uses, granting an injunction does not always serve the goals of copyright law, when the secondary use, though edifying in some way, has been found to surpass the bounds of fair use. Campbell, 510 U.S. at 578 n.10. On the other hand, to serve the public interest, copyright law must "prevent[] the misappropriation of the skills, creative energies, and resources which are invested in the protected work." Apple Computer, 714 F.2d at 1255. Ultimately, because the Lexicon appropriates too much of Rowling's creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same25 and thus deplete the incentive for original authors to create new
works.

Re:Hold your horses!

[morgan_greywolf]

Bingo. Coppying excerpts for purposes of ccommentary and criticism of a work is generally an acceptable practice that is considered fair use. Compiling a bunch of excerpts and publishing them as a lexicon without adding anything original and of value is a clear case of infringement.

Re:Hold your horses!

[Shagg]

And if you've ever looked at the Lexicon website, you know that it does precisely that.

The website does, yes. My understanding of the book though is that a lot of this was being driven by the publisher, not really the author of the Lexicon website. The publisher decided to strip out virtually all of the original material from the website in order to shorten the book. The Lexicon book, as opposed to the website, supposedly is almost entirely direct quotes from the Harry Potter books.

Before the outrage starts...

[R2.0]

It's my understanding that 80% the contents of the website on which the encyclopedia is based is copied verbatim from the HP books. How does that NOT fail the "fair use" test?

Amazingly slanted summary

[bigtallmofo]

I heard J.K. Rowling interviewed on NPR about this. She listed many of the books that are derivative works that she is thrilled about. The commonality with acceptable books is that they add original thoughts. The targeted book contained no original thoughts but just indexed material from her books, in many cases copying the content and even indexes from her books verbatim.

The lawsuit was to stop the publication of the book; it had nothing to do with the $6k.

Re:What does her wealth have to do with it?

[kimvette]

That is true when it comes to trademark protection and patent protection, but NOT copyright protection.

Link to NPR Audio

[bigtallmofo]

I heard the same story on NPR yesterday. Here's a link to the story summary and the full audio with Rowling's explanation:

http://www.npr.org/templates/story/story.php?storyId=94407484

Re:What does her wealth have to do with it?

[sammy baby]

Not only that, but Ms. Rowling explicitly said that she had no objection if the Lexicon continues to be published for free on the web.

It's really, really hard for me to get worked up over this.

Re:What does her wealth have to do with it?

[morgan_greywolf]

You're confusing 'standing to sue' with 'losing a trademark'.

In the U.S. (and probably in the U.K., too), if you become financially damaged in a given situation, and you knowingly allowed that situation to occur, you lose your standing to sue by failing to mitigate your own damages. This is called the 'doctrine of laches' and is a form of estoppel.

Re:Poor Harry...

[eln]

Copyright is not trademark. You don't have to defend copyright to keep it.

Re:Poor Harry...

[reddburn]

It's typical to show contempt for those artists you consider crass or over-commercialized, by depicting them as metaphorically abusing their creations.

This is called "parody." It is protected fair use. Creating your own comic strip series starring Opus would not be. You can profit from the former. You may not from the latter. The authors of the Lexicon were trying to profit.

Re:What does her wealth have to do with it?

[Hatta]

/. is not, nor has it ever been a news site. It is a current events discussion forum with a tech slant.

Re:What does her wealth have to do with it?

[mrchaotica]

And the fact that the judgment wasn't for more that about 6,750 bucks goes to show that this was about principle, not the money.

$6,750 is what was awarded, not necessarily what was demanded. Although the judge, who did the awarding, obviously determined the amount based on principle, Rowling could have asked for astronomical monetary damages out of greed and been rejected -- we (or at least, I) don't know.

Re:Poor Harry...

[UnknowingFool]

In the decision the judge wrote that though the Lexicon was a "work of love from the author" as you put it, the amount of verbatim copying was so pervasive as to disqualify it from Fair Use. I can't, for example, create Bob's Encyclopedia by directly quoting the majority of the Encyclopedia Britannica and pass it off as Fair Use even if I spend years doing it. In her NPR interview she mentioned other reference books she did not sue because they did not directly copy her work.

Also a part of Fair Use is the term "for public good". She did not object that much to the website because presenting information to the public served a public good. Trying to make money off of it, is not "for public good".

From what I read, it was RDR Books that was unwilling to negotiate and advised the Lexicon author not to negotiate. Even if your events are correct, if you wrote a series of books over 20 years, and someone came along and copied your work and tried to sell it, you wouldn't be bitchy about it? "Listen, it looks like I've copied your work. You want to discuss this. No? Bitch."

Re:Poor Harry...

[lgw]

No one applies for copyright any more, in any country, and there's no need to thanks to the Berne Convention (which just about every modern country goes along with). Copyright is automatic, with no need to take preemptive steps in any member country.

In the case of Encyclopedia Britannica, that was a young America deliberately thumbing it's nose at Britain. Even then, the publishers of Encyclopedia Britannica had a reasonable expectation of copyright protection, sans inflammatory politics.

Re:Poor Harry...

[Bieeanda]

She gave him permission to put the site up on the Web. RDR books waved a wad of cash under his nose, and he went for it. Rowling put her foot down. RDR, still sensing the potential for scads of money, decided to claw at it and failed miserably.

This is not a fight between a Big Author and a Little Guy, this is a Scummy Company getting Bitchslapped.

Re:Thanks, NewYorkCountryLawyer!

[NewYorkCountryLawyer]

I am curious what is it that makes you so mad about this case.

The decision troubles me because it is flagrantly wrong, and -- because it is widely publicized -- will affect decisionmaking by creators and by publishers. I.e. it will have a 'chilling effect'.

Re:And so my book won't be published either

[NewYorkCountryLawyer]

So what's the solution

There needs to be a more detailed code of best practices, as, e.g., what has been agreed to for documentary film makers, or what we are hoping to see for user-generated online video. Also there should be some kind of very inexpensive arbitration forum where these issues can be resolved quickly, expeditiously, inexpensively, and before -- rather than after -- the creator has invested his or her time, energy, and money.