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J.K. Rowling Updates "Companion Books" Article; RDR Books Responds

As reported yesterday, WB and JKR filed suit yesterday over The Harry Potter Lexicon's intent to publish an encyclopedia. The action went hand-in-hand with a statement JKR had made on her Web site about not supporting unofficial companion books because they take away from the proposed book she will be writing for charity. Today she has updated that news posting:

"As is now widely known, a complaint has been filed in the name of Warner Bros and myself against the publisher of a proposed Lexicon, written by Steven VanderArk. This decision was reached, on my part, with immense sadness and disappointment, and only because direct appeals for a reasonable solution failed. I never dreamed, in the light of our previous good relations – including giving the Lexicon a Fansite Award - that this situation would ever arise.

From what I understand, the proposed book is not criticism or review of Harry Potter's world, which would be entirely legitimate – neither I nor anybody connected with Harry Potter has ever tried to prevent such works being published. It is, we believe, a print version of the website, except now the information that was freely available to everybody is to become a commercial enterprise.

It is not reasonable, or legal, for anybody, fan or otherwise, to take an author's hard work, re-organize their characters and plots, and sell them for their own commercial gain. However much an individual claims to love somebody else's work, it does not become theirs to sell."

UPDATE: RDR has now updated their website with a lengthy response, and has changed the title of their response page to read "Purveyors of quality literature (and the 1st Amendment) since 1983," a title that does not include the parenthetical elsewhere on the site. The article does not address RDR's alleged failure to reply to cease and desist letters or provide a review copy, and claims that the book is being published in part to "make its information available to underprivileged children and those in impoverished nations, who may have no access to computers or to the World Wide Web." It also claims the action began after RDR Books sought a cease-and-desist order for the timeline, which is disputed in the complaint filed in Manhattan federal court (which claims the first letter came weeks earlier). It also claims the attempt to stop publishing is an attempt to squelch the press and is a first amendment issue. Excerpts of the statement are as follows:

Does the Lexicon appear to have Ms. Rowling's blessing?
"No, the Lexicon makes it perfectly clear that this unique reference resource is in no way endorsed by Ms. Rowling or Warner Bros. ... It is an original book with a vast array of independently written scholarly articles.

Why did Warner Bros. and Ms. Rowling target the Lexicon when dozens of other similar reader's companions are on the market?
"At the moment, books published by Penguin (The Idiot's Guide), Mugglenet.com, Sparknotes, Broadway, Hampton Roads, Ulysses Press and many other publishers are in print around the world. At least 46 such books are presently available in bookstores and libraries....
The action against The Harry Potter Lexicon was commenced soon after we contacted Warner Bros. requesting fair compensation for their unauthorized use Mr. Vander Ark's copyrighted material on millions of DVDs. The court filing was followed within less than two hours by vast, carefully orchestrated international publicity campaign designed to impugn the reputations of Mr. Vander Ark and RDR Books."

Is this a First Amendment issue?
Yes. What's at stake here is the determination of Warner Bros. (which owns trademarks, not copyrights, on Harry Potter characters' names and place names) to limit freedom of the press. This entertainment conglomerate wants to stop books before they are published, which threatens our First Amendment rights. If they were able to stop this independent critical work, publishers and writers everywhere would find it more difficult to publish important books that benefit all of us. The chilling effect of this lawsuit is its attempt to add harsh new limitations to the principle that, in the immortal words of A. J. Leibling, "Freedom of the press is limited to those who own one." When a person writes a book and publishes it, that book is subject to general analysis and criticism by the public. In the same sense that J. K. Rowling reviews a Jessica Mitford book in a London paper, critics like Mr. Vander Ark provide literary analysis and comment about Ms. Rowling's books.

Has Steve Vander Ark or RDR Books discussed the print publication of the Lexicon with J.K. Rowling?
>> No. We have been unable to contact her. Although Ms. Rowling has been named as a party to the lawsuit, the only discussion we have been able to have about the book has been in the form of threatening letters and abusive telephone calls from Warner Bros. staff attorneys and the New York office of a large international law firm that also purports to represent Warner Bros.

We continue to keep all lines of communication open at our end in the hope that we can resolve this matter so that readers of all ages can benefit from the scholarship of Mr. Vander Ark and other librarians and professors."

Thanks to Harry Latino for the heads-up.

Details of the lawsuit, as obtained by TLC, are below:

-The suit says any money award given to JKR or WB as a result of this suit will be donated to charity.
-It claims Steve Vander Ark made claims to rights in the Harry Potter series and threatened to sue WB.
-It seeks to halt publication and recoup whatever profits are made by the book or costs incurred by the suit.
-The suit says four letters to RDR Books (detailed below) regarding the issue before it went to a lawsuit.
-That RDR Books has refused to hand over a pre-publication copy of the books for review.
-It names RDR Books and 10 DOES - unidentified entities/people - who can be named later.
-In response to contact from JKR's lawyers, RDR Books sent its own "cease and desist" letter to Warner Bros. regarding a timeline on the Harry Potter DVDs they claim infringes the Lexicon's copyright, which the suit says is "a complete fabrication apparently intended to deflect Plaintiffs' complaints - but which merely serves to highlight hypocritical nature of Defendant's conduct."

Excerpts from suit:

-"Plaintiffs did everything they could prior to filing this lawsuit to engage in a substantive dialogue with Defendant only to be rebuffed and treated rudely. For example, while claiming not to have the ability or time to respond to Plaintiffs' multiple 'cease and desist' letters because of a family tragedy, Defendant instead was hawking foreign publishing rights to the Infringing Book in Germany. Moreover, Defendant had the audacity to accuse Warner Bros. of violating the purported copyrights of the Infringing Book's author in a timeline based on the Harry Potter Books - a complete fabrication apparently intended to deflect Plaintiffs' complaints -- but which merely serves to highlight the hypocritical nature of Defendant's conduct."

-The suit says that there is a "big difference between the innumerable Harry Potter fan sites' latitude to discuss the Harry Potter Works in the context of free, ephemeral websites ad unilaterally repackaging those sites for sale in an effort to cash in monetarily on Ms. Rowling's creative works in contravention of her wishes and rights."

-JKR has been "careful not to license" other "tie-in or companion books" which merely "regurgitate her creative expression without adding valuable analysis or scholarly commentary...in part, because...she has authored and published her own Companion Books and intends to create additional companion books."

-JKR's agency, Christopher Little, heard about the book from an online listing on Publisher's Marketplace. The book and its disclaimer-less title led JKR and her agency to contact the author.

Pre-lawsuit timeline, as detailed by the complaint:

September 12: The Christopher Little Agency e-mailed Steve Vander Ark with a copy cc'd to RDR books, containing a reminder of JKR's plans to write a future book and a statement that JKR did not wish to grant rights to any third party. "Appealing to Mr. Vander Ark as a friend and supporter of Ms. Rowling and the Harry Potter books, Ms. Rowling's agent asked Mr. Vander Ark to forgo publication of the Infringing Book." The email went unresponded for six days.

September 18: JKR and WB's lawyer forwarded a letter to RDR Books and Steve Vander Ark via e-mail, notifying them that the book would be infringing copyrights and citing precedent (Twin Peaks Productions, Inc. v. Publications Int'l, Ltd, and Castle Rock Entertainment v. Carol Publishing Group; the first regarding a book of Twin Peaks plot summaries and the second a book of Trivia about the Seinfeld series). The letter requested the publication cease, in the U.S. and to all foreign publishers, and asked for a list of those entities so that JKR's lawyers could contact them directly.

September 18: Steve Vander Ark responded to JKR's agent by e-mail saying he had "been asked to leave all correspondence in this matter to others."

September 19: RDR Books replied, saying, "[i]t is our intention to thoroughly study the various issues you have raised and discuss them with our legal advisers."

October 3: JKR and WB counsel wrote again, "after waiting another two weeks and receiving no substantive response...emphasizing their clients' concerns and the impending publication date." Roger Rapoport, president of RDR Books, requested more time due to a death in the family, which was given by JKR and WB's counsel.

October 11: JKR and WB counsel discovered that in the time period in which he had requested for a "good faith" delay to deal with a death in the family, he had sent a "cease and desist" letter to WB regarding "a timeline appearing on some of the Harry Potter DVDs [that] infringed the Lexicon Website. Warner Bros. responded that it would look into the matter more fully. In the meantime Warner Bros. asked for a copy of the"print version" of the Lexicon Website referred to by RDR Books in order to aid in its evaluation of the claims. RDR Books summarily dismissed Warner Bros. reasonable request," the suit claims, "stating rudely: 'If you do not know how to print that material [from the Lexicon Website] please ask one of your people to show you how.' "

October 19: JKR and WB counsel wrote a third letter; RDR responded again that they would reply after looking into allegations.

October 23: Christopher Little Agency learns that RDR had recently offered the publishing rights for the book in Germany to Random House and in Taiwan to Crown Publishing. "Plaintiffs grew increasingly concerned during the course of these events because it appeared that RDR Books was duplicitously stalling its response to Plaintiffs' concerns in order to surreptitiously promote the Infringing Book in advance of the rapidly-approaching publication date."

October 24: JKR and WB counsel wrote a fourth letter to RDR Books, "expressing their grave concerns about RDR Books' recent behavior and asking for confirmation that RDR Books would not publish the Infringing Book until it attempted to resolve this matter in good faith." The lawyers also repeated their request for a copy of the book. They also set a deadline for response of Oct. 29.

October 24: RDR Books responded that the "Plaintiffs' 'unwarranted' objections were not appreciated," and that the book was a "print version of the Lexicon Website, which was allegedly permitted by Ms. Rowling, and that there were allegedly other Harry Potter guides similar to the Infringing Book on the market." The suit says in response, "While Ms. Rowling has permitted some fan sites certain latitude to make use of the material in her books, these sites are generally free to the public and exist to enable fans to communicate, rather than to permit someone to turn a quick and easy profit based on her own creativity. Ms. Rowling never gave anyone permission to publish a 400-page Harry Potter Lexicon."

October 31: Suit filed. "It is apparent that RDR Books has no intention of working with Plaintiffs to resolve this matter amicably. Plaintiffs therefore have no choice but to file this lawsuit."

The suit also states that JKR and WB are concerned not only because they claim the book infringes and it conflicts with her own plans but because "RDR Books has confirmed...that it cannot be trusted with one of the most beloved children's book series in history."

The suit also quotes a statement made by Steve Vander Ark on his site, that says, "...I don't give permission for people to just copy my work for their own use. Not only is that illegal, since everything in the Lexicon is copyrighted, it's also just plain wrong. Hey, I did all the work,I put in all the time, it's my skill and talent in this area which allowed the Lexicon to come into being. No one else has the right to use my work." The suit says, "this is exactly what Defendant is attempting to do here in connection with Ms. Rowling's work.

Without a review copy, JKR and WB's lawyers have been told the book will be a "print version" of the Lexicon, which they maintain means it will surely infringe on JKR's copyright. It mentions the maps and passages of the books that the Lexicon has on its site, as well as lists and facts, class schedules, potion ingredients and wizarding histories. "The Lexicon Website also slavishly copies lyrics to entire songs, lifts long passages directly from the Harry Potter Books, and transcribes magic spells word-for-word. In addition to copying the fictional facts and language of the books, the Lexicon Website also contains numerous infringing photos taken from Warner Bros. copyrighted Harry Potter films."

It also cites the "lengthy plot summaries and detailed descriptions" of characters.

"These descriptions, character details and plot points comprise stories created and owned by Ms. Rowling, who has the sole right to control their distribution and who did not give permission to the Defendant to publish a book that stands to make millions of dollars off the back of Ms. Rowling's creativity."

The suit also maintains that the book will be marketed to mislead consumers, because it does not have a disclaimer in its title or subtitle and is referred to as 'the most complete and amazing reference to the magical world of Harry Potter,' which the suit claims "gives the false and misleading impression that the book is an official Harry Potter book and that Ms. Rowling or Warner Bros. has authorized it or is associated it with it in any way."

The suit claims seven counts:
-Copyright Infringement
-Federal Trademark Infringement
-Unfair Competition and False Designation of Origin
-False Advertising
-Deceptive Trade Practices
-Unfair Competition
-Declaratory Judgment Regarding Copyright Infringement

The suit asks for the court to find that:
-RDR Books has infringed copyright and trademarks and used a misleading book cover, design and advertising materials to "falsely designate the origin of the Infringing Book, falsely advertise the Infringing Book, and unfairly compete with Plaintiffs."
-RDR Books and defendants have engaged in deceptive trade practices
-The "Hogwarts Time Line" in the DVD does not infringe the Defendant's copyrights
-There is a substantial likelihood that defendants will continue to infringe unless halted permanently

The suit also asks for:
- a permanent injunction against the Defendant and associated entities from selling or distributing works derived or copied from Harry Potter
- an order instructing a recall of the book
- a judgment for damages and profits

There has not yet been a reaction filed by RDR Books or any other defendant.

The Christopher Little Agency has also answered some questions for Leaky in response to what has been mentioned in comments:

-The difference between the book and the Lexicon web site is that "the website is free for all fans but the book is to be sold," and "other free web sites are fine so long as the material is appropriate."

-Regarding whether the Lexicon has rights due to JKR's use of it in the past, the "Lexicon has no rights in Harry Potter."

-They can't comment on whether it would have really overlapped with J.K. Rowling's intended because they haven't seen the book, and this was why they wanted to review it.

The Harry Potter Lexicon is a partner site to The Leaky Cauldron.