An Appeal In the "Harry Potter Lexicon" Case

NewYorkCountryLawyer writes "RDR Books, the would-be publisher of the book version of the 'Harry Potter Lexicon' Web site, has filed an appeal from the judge's decision in Warner Bros. Pictures v. RDR Books, the case involving the Harry Potter Lexicon. The judge, after a bench trial, issued an injunction and awarded statutory damages of $6,750 (as we discussed at the time), holding that the Lexicon was not protected by fair use due to (a) sloppiness in attribution in sections, (b) the length of some of the quotes, and (c) imitation of J. K. Rowling's writing style in portions. I recently wrote an article criticizing the opinion, but doubting that an appeal would be taken in view of the small damages award. I guess I underestimated the resolve of the defendants and defendants' lawyers — who include the Stanford Law School Center for Internet and Society."

Comments

imitation of J. K. Rowling's writing style...

[JoeCommodore]

...(c) imitation of J. K. Rowling's writing style in portions...

Is that even an enforceable law? If so most authors should have their books contested, as people learn partly through imitation and experience. Throwing weak points out like that makes me suspect of the ruling.

Re:imitation of J. K. Rowling's writing style...

[cpt kangarooski]

Fair use has rules about quote length and attribution

No, it doesn't. Fair use ultimately boils down to 'you can use as much as is fair, given the overall circumstances.'

When you time shift television, you're 'quoting' the entire thing, and stand a good chance of successfully claiming that it's a fair use. In other circumstances, however, excessive copying can sink a fair use argument handily.

There's also no attribution requirement, but if you claim that you were engaged in a particular type of fair use, and that type of use normally involves attribution, failure to include the attribution may harm your argument, and ultimately, your defense.

Re:imitation of J. K. Rowling's writing style...

[NewYorkCountryLawyer]

I'm puzzled by the mention of "writing style".

Me too. I don't know why the Judge considered that a factor at all. I think the 2nd Circuit will disapprove that.

Re:imitation of J. K. Rowling's writing style...

[cpt kangarooski]

Rowling has an exclusive right to create derivative works

Which is not implicated in this case; the guidebook was not a derivative work. Rather, the author got in trouble for his excessive verbatim copying.

imitating the style used in the series and its associated works

Would also not constitute a derivative work.

Derivatives are defined in the law:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

As you can see, merely being based upon a preexisting work isn't enough. In practice, the derivative has to recast, transform, or adapt the preexisting work. An adaptation, like "Harry Potter: The Opera" would be a derivative. A sequel book, such as "Harry Potter and the Endless Revenue Stream" would be a derivative work. But as the court pointed out, a mere reference guide is not a derivative work, because it does not recast, transform, or adapt the thing to which it is a guide. This was covered pretty well in the Beanie Baby case, and the point was repeated in this case.

Likewise, merely using the style of the Harry Potter books would not constitute a derivative work, because that doesn't recast, transform, or adapt the preexisting books.

undercuts Rowling's ability to profit from the work in a way that a guide book written using a different style would not.

So? Copyright does not include a right to profit. Imagine the absurd results that would occur if it did: A scathing review of the latest book or movie that caused it to be a big flop would constitute copyright infringement! Even if it didn't copy so much as a word. Likewise, a rival author who wrote a series of dreadful books about vampires which drew away the audience for Harry Potter could be accused of infringing on the basis that her (bad) original works were undercutting Rowling's profits, despite a total lack of copying anything.