for everyone

Earlier this week we found out that JK Rowling and Warner Brothers were successful in their copyright infringement case against RDR Books for their planned publication of The Harry Potter Lexicon, an encyclopedia about all things Harry Potter.

Everyone was quick to discuss the decision, including The NY Times, WSJ, TechDirt, Stanford Law School, The Berkman Center — and a thorough analysis here at the Citizen Media Law Project.

What is most frustrating about the case is how JK Rowling filed it to block the publication of the Lexicon book, while she publicly praised the website upon which it is based. This lent a heavy handed overtone to the case from the start — big business bullying individual creativity to monopolize their ‘hit’.

It’s unfortunate that RDR Books and Steven Vander Ark weren’t successful in defending their fair use argument. After reading the opinion, Judge Patterson did uphold a number of key principles, while he struggled to fully grasp others.

For example, one principle that the Judge upheld was when Rowling argued that “use can’t be considered transformative because it doesn’t add significant analysis or commentary”, but Patterson found that “the Lexicon doesn’t purport to be a work of literary criticism or to constitute fair use on that basis’ and it’s lack of critical analysis…is not determinative of whether or not it’s purpose is transformative.”

After going through Patterson’s opinion, it sounds like he reached his decision for a few reasons:

• The Lexicon borrowed “wholesale” from JK Rowling’s 2 short companion books. Perhaps this decision would have been different if the Lexicon didn’t cite content from the companions so extensively.
• The Lexicon failed to enclose the passages cited from Harry Potter novels with quotations, making it unclear what is original or reproduced.
• Finally, throughout the entire opinion Patterson repeats numerous times how he found “substantial similarity” — which clearly swayed his overall decision as noted by the tone of the opinion. Perhaps this unduly led to the negative outcome for RDR Books.

Judge Patterson walks us through his review of the “fair use test”, beginning on page 41. Check it out below: