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

[Sean DALY]

The full text of the ruling is available here:

http://www.groklaw.net/article.php?story=3D20080909014304275



On Tue, Sep 9, 2008 at 3:48 PM, Pranesh Prakash <the.solipsist@gmail.com> w=
rote:
> 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-avad=
a-kedavra-to-harry-potter-lexicon.html
>
> ------------
>
> 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.
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