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News

The Harry Potter Lexicon Goes to Court
(See the end of this article for the court's decision.)

(March 8, 2008) - J.K. Rowling's attempt to stop publication of the proposed Harry Potter Lexicon will go to trial in federal court in New York on April 14. Rowling, the British author who became famous (and very rich) from her series of Harry Potter novels, and her publisher, Warner Brothers Entertainment, sued RDR Books last fall, claiming that RDR would infringe their copyright if it goes forward with publication of the Lexicon. RDR says it has a perfect right to publish because the Lexicon is not copyright infringement, but fair use.

The Lexicon in book form is based almost entirely on material from the extensive Harry Potter Lexicon website (http://www.hp-lexicon.org), which Rowling has praised by giving it the “J.K. Rowling Fan Site Award” and recommending it to Potter fans. At the heart of the Lexicon is its A-Z index, providing information about all of the characters, place names, magic spells, and so forth, in the seven Harry Potter books, plus two others by Rowling, Quidditch Through the Ages and Fantastic Beasts and Where to Find Them.

But Rowling was not thrilled when Steven Vander Ark, creator of the website, decided to put the website material into book form. She and Warner Brothers argue that the Lexicon will diminish the market for her planned encyclopedia or glossary of Potter lore. RDR counters that the planned Lexicon is sufficiently "transformative" of the plots, characters, and language of the Potter novels to qualify as fair use. Among the uses of copyrighted material that the fair use section of the law allows, without permission of the copyright owner, is commentary on the original work.

In its court papers, RDR argues that the Lexicon is essentially a work of commentary, and part of a long tradition of glossaries and guides traceable back to at least the 18th century in England and helping readers and fans understand and enjoy complex works ranging from the novels of Sir Walter Scott to those of Charles Dickens, Thomas Hardy, and more recent writers such as Thomas Pynchon. RDR points to numerous instances in the Lexicon of commentary, explanation, elaboration, and even correction of errors in the Potter books.

Rowling's lawyers reply that commentary is a minor part of the Lexicon, which they say consists overwhelmingly of direct quotes and plot summaries of the novels. Undoubtedly, U.S. District Judge Robert Patterson will have to review the proposed publication and make a fact-based determination whether it has sufficient commentary to qualify as fair use.

Meanwhile, the controversy is being hotly debated both inside and outside the large community of Potter aficionados. Fair use advocates accuse Rowling of greed, bad sportsmanship, and contempt for her fans. Rowling accuses RDR and Vander Ark of crass commercial motives, and says she would dedicate the earnings from her proposed (but not yet written) Harry Potter lexicon to charity.

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Update: On September 8, 2008, Judge Patterson ruled in favor of Rowling and Warner Brothers. He found that although reference works are to be encouraged, and - significantly - that "the market for reference guides to the Harry Potter works is not exclusively" Rowling's to "exploit or license," the Lexicon simply copied too much of the novels verbatim to qualify as fair use. Especially damning was Vander Ark's copying of large portions of Rowling's own two reference works, Quidditch Through the Ages and Fantastic Beasts and Where to Find Them.

A chronology of the court case, with links to all of the court documents, including Judge Patterson's decision, is available at http://news.justia.com/cases/featured/new-york/nysdce/1:2007cv09667/315790/

For more on copyright and fair use, see Will Fair Use Survive? Free Expression in the Age of Copyright Control, and "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom.


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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