Written by: Kimberly Brandt
Researched by: Jeff W. Richards
Edited by: Amy E. Seely and Jay D. Hall

On Halloween, 2007, the Muggle world was ablaze with news that Harry Potter author J.K. Rowling and movie studio Warner Bros. Entertainment, Inc. had filed suit against RDR Books. Their goals? To prevent the publication of an unofficial Harry Potter companion, as well as collect damages for copyright and trademark infringement, and any profits the book generates.

The Harry Potter Lexicon (”Lexicon“) is a reference book based on author Steve Vander Ark’s website of the same name. While the site is popular among Harry Potter fans (and even the author herself), Rowling and Warner Bros. claim that the Lexicon book exploits Rowling’s literary works. This leaves fans to wonder: will the Lexicon book be Avada Kedavra‘d before it hits the shelves?

Although Warner Bros.’ periodically cracks down on certain Harry Potter fan sites, it’s important to note that the Lexicon suit is seeking to halt publication of the book, not the website. The Lexicon website, according to the First Amended Complaint, is a free-of-charge site that contains over 700 internet pages. It includes such information as the recipe and effects of Polyjuice Potion, original artwork by Harry Potter fans, essays, a discussion board, and more. By comparison, the Lexicon book is allegedly a 400-page encyclopedia listing elements from all the Harry Potter books and Rowling’s companion books, “without any analysis or commentary.” Supposedly the Lexicon provides plot summaries and character descriptions, but does not contain the fan fiction, art, and trimmings from the website. The questions that remain are: (1) does the Lexicon infringe on Rowling and Warner Bros.’ copyrights, and (2) if it does, can RDR sell the book anyway?

Copyright Infringement

Warner Bros. and Rowling claim that the Lexicon infringes on the copyrights associated with the Harry Potter books and movies. RDR Books neither denies that Warner Bros. and Rowling hold these copyrights, nor denies that information in the Lexicon comes from the books Rowling created. Rather, RDR challenges the allegation that Vander Ark’s copying was “improper or unlawful.”

The biggest strike against the Lexicon is that the information in the book comes from copyright-protected “expression.” Copyright law does not protect facts or public information (such as J.K. Rowling was born on July 31, 1965), as they do not “owe their origin to an act of authorship.” The problem is, the “facts” contained in the Lexicon are, in actuality, fictitious expression created by Rowling. In essence, you can’t list the nature of a Blast-Ended Skrewt without using Rowling’s copyright-protected expression, as no such creature exists outside the magical world that Rowling’s imagination created.

A Comparable Case

In deciding whether to permit the publication of the Lexicon, the District Court will first look to similar past cases to find the factors they should take into account. Not only is Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc. similar to the Lexicon suit, but it also came from a higher court in the same circuit. This means if the Lexicon court thinks that the two cases are sufficiently similar, they are bound to follow the same rules in determining whether RDR can sell the Lexicon. In Castle Rock, the court halted publication of an unauthorized trivia quiz book based on Seinfeld, a popular television show. The Seinfeld Aptitude Test (”The SAT“) consisted entirely of questions and correct answers that had, as their source, fictional moments from Seinfeld episodes. Like The SAT, the Lexicon has, as its main source, fictional facts taken from a copyrighted work.

Before considering Seinfeld’s infringement claims, the court examined the amount of information The SAT took from the show. The court determined, for instance, that the trivia quiz was comparable to copying fragments of the series. The SAT used so many moments of the show (643 fragments of 84 copyrighted episodes), that the court found there to be significant copyright infringement. When examining the Lexicon, the court will consider how big a chunk of the Harry Potter books and movies the Lexicon’s “fragments” used. For example, an entry on the Riddikulus spell (explaining its purpose, pronunciation, and use), is substantially made up of fragments of the books and movies. Essentially, each section of every entry could be seen as taking a different portion of Rowling’s copyrighted works. Without knowing for sure what the Lexicon manuscript contains, it is difficult to guess whether Warner Bros. and Rowling will be able to convince a court that Vander Ark has infringed on their copyrights.

All’s fair…or is it?

Even if the court finds that the Lexicon book uses a substantial amount of copyrighted material, the legal battle will not end there. RDR’s defense is that if the book does use copyrighted material, it would still be legal because of the doctrine of “fair use.” Under The Copyright Act of 1976, copyrighted material may generally be used for educational purposes, news reporting, or criticism. A court will consider (1) the purpose and character of the use of the copyrighted material (questioning whether the Lexicon is being written for profit or not), (2) the nature of the copyrighted work being used (is it factual? for the public good?), (3) the portion of Harry Potter material being used in the Lexicon in relation to the series as a whole, and (4) the effect the use of the copyrighted material in the Lexicon will have on the value of Rowling’s work.

RDR will have the most difficulty convincing a court to find in their favor on the first, third, and fourth elements of this test. Unlike the Lexicon website, the book is being published for profit, which “may weigh against a finding of fair use.” However, this is not definitive in a court’s determination.

Even if the court concludes that the Lexicon used a significant amount of Rowling’s work, they will question whether the Lexicon uses Rowling’s raw material to create new information, insight, or understanding. If the Lexicon adds value or creates new meaning out of the Harry Potter works, a court will likely deem the Lexicon to be “transformative.” Transformative works are protected under the fair use doctrine, as the new product created from the copyrighted material is seen to add to the “enrichment of society.”

On the other hand, if the Lexicon simply puts together Rowling’s information in a different format, a court will term the Lexicon a “derivative” work and find that the book is not protected by the fair use doctrine. Warner Bros. and Rowling claim that the Lexicon is not a transformative work. Rather, they claim that the book “merely compiles and repackages Ms. Rowling’s fictional facts derived wholesale from the Harry Potter Works without adding any new creativity, commentary, insight, or criticism.” While admitting that the Lexicon will not include all of the material that is on the website, RDR insists that the Lexicon is “replete with both analysis and commentary,” and also provides interpretation and other information found or created outside of Rowling’s work. Whether or not this is the case is something that the court will have to determine by looking at the manuscript.

The court will also likely take into consideration the effect the Lexicon may have on the consumer market. Rowling previously announced that she plans to write her own Harry Potter encyclopedia, complete with extra material. She also claims that Vander Ark was aware of this. Even if she had no plans, though, the possibility of her entering the market (or licensing it to someone else) would be sufficient to show damage to her market share. Would the Lexicon fill the market niche and substantially diminish sales on Rowling’s version? Critics doubt that Harry Potter fans would truly pass on buying Rowling’s encyclopedia, even if they owned the Lexicon.

What’s next?

A jury trial is set to begin on April 14, 2008 to decide the fate of the Lexicon. If the Lexicon case is deemed comparable to the Castle Rock suit, the court may side with Rowling. The fictional nature of the copyrighted work certainly counts in her favor, and Vander Ark’s Lexicon is entirely comprised of it. Any analysis included in the Lexicon will further push it towards a protected “transformative” work and away from a “derivative” work, but the court will be the final arbiter of how this analysis will play out. Unless the parties decide to settle, both the Muggle and Wizarding worlds will remain on the edge of their broomsticks for the next few months, waiting to see which Harry Potter encyclopedia turns up first at their local Flourish & Blotts.