[A2k] Disappointing judgment holds Harry Potter lexicon to be infringement

[Pranesh Prakash]

Dear All,
In a disappointing decision issued yesterday Judge Robert Patterson
held that the Harry Potter lexicon sought to be published by Steven
Vander Ark did not qualify as fair use.  The judge did however hold
that this was a fact-specific decision, and that many other lexicons
and literary companions are well within the bounds of fair use.  More
on this from Ars Technica:

http://arstechnica.com/news.ars/post/20080908-judge-waves-gavel-says-avada-=
kedavra-to-harry-potter-lexicon.html

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Judge waves gavel, says Avada Kedavra to Harry Potter Lexicon

By Ryan Paul | Published: September 08, 2008 - 06:25PM CT

Steven Vander Ark's Harry Potter lexicon has vanished and may never be
seen again. The handy guide was not spirited away with the wave of a
wand: it was, instead, banned with the bang of a gavel. In a ruling
issued this morning, Judge Robert Patterson affirmed that Ark and his
publisher had failed to demonstrate that the reference text fell
within the scope of fair use.

Ark's lexicon began as a web site (now down) and quickly gained
popularity. Rowling herself was once a fan of the web site and has
previously lavished it with praise, gave it an award in 2004, and even
admitted to using it herself while she was writing some of the later
books in the series. The trouble began, however, when Ark decided to
turn the web site into a book which publisher RDR Books intended to
sell for $24.95 per copy. When Rowling learned of Ark's plans to
publish, she launched a lawsuit against the author and successfully
obtained an injunction against publication last year.

The lawsuit has shot sparks through the literary community and has
been condemned by fantasy literature enthusiasts and some of Rowling's
most ardent fans on the Internet. Rowling claims that publication of
the guide would harm her work and ruin the market for a future lexicon
that she planned to publish herself to raise money for charitable
causes. Although her plans to publish a Harry Potter companion book
for the benefit of charity is a noble aim, her lawsuit challenges the
most basic principles of fair use, and=97according to some
critics=97demonstrates a disappointing degree of pettiness.

One particularly vocal critic of the lawsuit is celebrated science
fiction novelist Orson Scott Card, author of Ender's Game. He
challenged the validity of the lawsuit earlier this year and contended
that Rowling's litigation posed a serious threat to time-honored
literary traditions.

"[The] Lexicon is intended only as a reference book for people who
have already paid for their copies of Rowling's books. Even though the
book is not scholarly, it certainly falls within the realm of
scholarly comment," he wrote in an article. "This frivolous lawsuit
puts at serious risk the entire tradition of commentary on fiction.
Any student writing a paper about the Harry Potter books, any
scholarly treatise about it, will certainly do everything she's
complaining about."

Card also points out that Rowling permitted the publication of several
similar works while she was still writing new Harry Potter books. Such
supplementary guides, one of which Card contributed to himself,
promoted Rowling's books, he says, and helped increase sales.

Rowling, however, believes that the Lexicon lacked sufficient
commentary or analysis. "The proposed book took an enormous amount of
my work and added virtually no original commentary of its own," she
told Reuters. "Many books have been published which offer original
insights into the world of Harry Potter. The Lexicon just is not one
of them."

Patterson sided with Rowling, ruling that "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 same and thus deplete the incentive
for original authors to create new works." Patterson indicated that
the Lexicon's use of the Harry Potter novels is largely transformative
in nature, but its use of material from Rowling's companion books is
much less so. Ultimately, it was the Lexicon's extensive use of
verbatim copying that convinced the Judge to agree with Rowling. The
ruling does not itself block writers from authoring lexicons based on
fictional works. The judge cited several independently authored
fantasy companion books that meet the criteria for fair use, including
one about Narnia authored by Paul Ford.

"The Lexicon, an A-to-Z guide which synthesizes information from the
series and generally provides citations for location of that
information rather than offering commentary, is most comparable to the
comprehensive work of Paul F. Ford, Companion to Narnia: A Complete
Guide to the Magical World of C.S. Lewis's The Chronicles of Narnia.
[..] The Companion to Narnia, however, is far more erudite and
informative than the Lexicon," the judge wrote. "It seems unlikely
that a publisher like HarperCollins would produce the Companion to
Narnia, which reveals storylines, plot twists, and the ultimate fates
of the characters in C.S. Lewis's original works, if it expected the
publication would reduce sales and enthusiasm for the original works.
Accordingly, the Lexicon does not present any potential harm to the
markets for the original Harry Potter works."

As a fantasy literature enthusiast, I am disappointed by Rowling's
unwillingness to achieve a reasonable compromise with Ark. She clearly
saw value in his work and could have even collaborated with him
instead of trying to create her own future lexicon from scratch.
Inventive borrowing is the lifeblood of the fantasy genre and her
attitude on the subject reflects some hypocrisy.

Fantasy author J.R.R. Tolkien, who is widely regarded as one of the
forefathers of the modern fantasy genre, borrowed liberally from
ancient mythology. Some names, places, and events that appear in The
Hobbit and Lord of the Rings were taken directly from the Kalevala, a
Finnish epic poem compiled by Elias Lonnrot. In turn, many fantasy
authors=97including Rowling=97have drawn ideas, themes, and imagery from
Tolkien's literature. The manner in which authors draw from a
collective pool of certain ideas is part of what makes the fantasy
genre so magical. That is one of the reasons why ensuring the
perpetuation of the public domain is essential to ensuring the future
robustness of the genre.

Rowling has also been accused of borrowing more blatantly from the
works of other contemporary authors. For instance, author Nancy
Stouffer=97creator of a book called Rah and the Muggles and a character
named Larry Potter=97claims that Rowling ripped off her books. Rowling
has vehemently denied Stouffer's allegations.

Rowling has emerged from court victorious, but it might be a pyrrhic
victory. She has earned the contempt of some former admirers and the
scorn of some in the literary community. Card, who used to be an
enthusiastic fan, thinks she is turning into the Wicked Witch of the
West. "Rowling has now shown herself to lack a brain, a heart and
courage. Clearly, she needs to visit Oz," he remarked.