In Warner Bros. Entertainment v. RDR Books, the judge has issued a 68-page decision, following a bench trial, in which he concluded that the "Harry Potter Lexicon" was not a "fair use" of J. K. Rowling's copyrighted material from the Harry Potter series.
The court concluded that the work was "transformative", but that portions which quoted the original language too heavily were less transformative; that the use was clearly commercial in nature; that the defendant had not been guilty of bad faith; that there was more "verbatim copying" than was "reasonably necessary"; work was clearly for financial gain; and that while the lexicon did not compete with the novels, it would compete with a planned "derivate work", Ms. Rowling's planned encyclopedia, would compete with 2 "companion books" Ms. Rowling had written, and -- although plaintiffs had offered no evidence of any intention to market poems and songs -- would compete with their marketing poems and songs were they inclined to enter into that market.
The judge awarded plaintiffs $6750 in statutory damages, and issued an injunction against the publication.
September 8, 2008, Decision
[Ed. note. There's excellent coverage, and even a text version of the decision, as well as the usual good discussion, on Groklaw. -R.B.]
[Ed. note. Sad. Very sad. And contrary to law as well. Unfortunately for the rest of us, the fact that the defendant got off so easily -- $6750 -- militates against his taking an appeal. -R.B.]
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11 comments:
Would you please say something about your perspective on this case for those of us who are unwashed in your areas of concern and copyright law?
Kip Patterson
Actually I could go on at length about it, if I had the time, which I don't, but here's a little comment I put up on Groklaw a few moments ago, which mentions just a couple of the many things I could say about it.
What I don't get is why lkaches didn't apply, or didn't the defendant argue that?
My apologies, I meant to say laches not lkaches.
Rowling is a complete fraud in this and while I used to respect her and her success (even if the story of her hardships in the early days has since been shown to have been highly exaggerated given her comfortably well off family), but I respect her not at all after this. Her whole case seemed to be: "I planned to do that myself some day although I'd never mentioned these plans before, and even donate all the money to charity, and therefore no one else can.
The very fact that it was left published on the Internet for all to see and enjoy for years without problem belies her claim that she was being harmed by it. The fact that it was given away *free* there should have been even *more* harmful than the sale of it in book form would have ever been. And how does transforming your web-page to the printed page change anything?
Lastly, does J.K.R. truly believe that if this lexicon is on the market and Her lexicon under Her name goes on for sale that any of her fans will bypass Her work for this work??? What a crock! If anything they'll buy both, and certainly buy hers. Her claims of potential future damage are completely unproven and fully fabricated.
All respect I had for J.K.R. is now forfeit - not that she likely cares.
Also I note that this case was pursued under the name of Warner Bros, and not in the true party of interest. WB is well known for their greedy ways and trampling every possible fair use right that they can manage to attack.
This man would have loved to see Paltry's comments on this. A shame he has stopped blogging.
Would be interesting if J.K.R. ever does publish her own lexicon if she lifts original information, insights, or commentary from this online one. That's a suit I'd love to see.
I would hope that this is appealed and overturned by a much better educated Judge.
{The Common Man Outraged}
I think this is the first time I have posted on this blog. RB may remember one of my comments from his debut on Slashdot (I hope I am remembered, anyway).
Since this is my debut here, I will try not to say some of the horrible things I am thinking about Ms. Rowling (criminal conspirator, etc.), and mention the connection I see.
It appears to me that every author creates a character that more or less retains all the personal characteristics of the author. This character is often the antagonist which allows the author to give free reign to his or her thoughts (however wicked they might be).
In the present case, I think I know who JKR's doppelganger is in the Harry Potter series (I hope she does not sue me for infringing on his name, the greedy *****).
I believe JKR is really Professor Umbridge, a vicious bureaucrat who wishes to destroy all reason to attain what she is after (in this case, money). She fits the role rather perfectly. She feels the rules only exist to serve her machinations. She is unwilling to compromise. And she is willing to harm everyone, inculding future society, for her personal interests.
Where is the email address for this Professor Umbridge so that we can all tell her what we think of her?
-- LuYu (if you cannot read Chinese)
The biggest problem with this case is the perspective the public at large has. They see a greedy woman and an "underdog author" who just wanted to publish his book.
The issue I have with that perception is that the "underdog author" didn't really write anything. He took the books and arranged them as a reference. That's not original. He didn't create any new ideas.
JKR has sanctioned the publishing a many many other Potter related books. She has even written the forward for at least one Potter related book.
To say she is greedy shows how little people know of the woman and the amount of money she gives to charity. I think, and this is just my opinion, that people are jealous of her success and money. If those same people who criticize JKR were in her shoes, I think they would also fight to keep the Lexicon from publishing this book.
LuYu,
JKR has said in the past that Hermione Granger is the character she most closely identifies with. That she may have become Dolores Umbridge in the eyes of many of us doesn't say this is how she sees herself.
Chris,
You clearly don't understand how much work, and the type of mind, it takes to produce a lexicon like the one at issue here. To deride it as mere cut & paste demeans you far more than the lexicon's author.
XxX
XxX:
Who she wants to be publicly identified with and who she secretly or even subconsciously identifies with are two different things.
-- LuYu
he is being bankrolled by the publishing company who promised him protection because jk rawlings is such a litigious witch. they incur any debt brought on by a suit. he could take it all the way to the supreme court.
She owns the copyright on the characters and the world. If she didn't, then people would not need to pay her for the rights to turn it into a movie.
The appropriate thing to do, would have been to approach her, and get her permission/offer her royalties on the sale of the Lexicon, and if she said, thanks but no thanks. Do something else. Or, do it for free as a wikipedia. She has to defend her IP, and in this case it's perfectly reasonable. Perhaps not for the reasoning the Judge used, but in general principle.
What if instead of a Lexicon, he had written a book called, "The Adventures of Ediplot Snoglesprout." Based in the same universe, with his own set of characters. Would that really be any more acceptable?
Can I write a Lexicon of Mickey Mouse without giving Walt Disney their pound of flesh? Should I really be allowed to?
Copyright in and of itself is not evil. Copyright stupidity is. I fail to see how fair use would work here. He's publishing his work, and selling it. He's Mass marketing something using her IP.
Star Wars and Star Trek novels, you can't just.. write one and have it published wihtout getting approval from Lucas or Paramount. The same should apply here.
What if I write a lexicon explaining all of Robert Jordan's convaluted plots. Should I really be able to ignore Robert Jordan's desires entirely on the subject?
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