In The News
WB and JKR File Full Request for Injunction of Harry Potter Lexicon (Part 1)
Companion BooksWarner Bros. and J.K. Rowling's legal team has filed its full complaint against RDR Books, the publishing company that is attempting to produce a printed, commercial version of The Harry Potter Lexicon, in an ongoing effort to get an injunction permanently halting the book's publication. There are more than 1,100 pages in this complaint, to which RDR has three weeks to reply.
As this is a huge number of pages and of information, this post will highlight new or important information, and as we read the documents more thoroughly, we will add more and attempt to answer questions.
The complaint says that:
1. The book "compiles and repackages Ms. Rowlnig's fictional facts derived wholesale from the Harry Potter works without adding any new creativity, commentary, insight, or criticism. Defendant's attempt to cloak the Infringing Book in the mantle of scholarship is merely a ruse designed to circumvent Plaintiffs' rights in order to make a quick buck."
2. The cover of the book (which was originally free of disclaimer but later edited to include the word "Unofficial" and a disclaimer) has been designed to mislead users; the complaint also includes a survey from an independent research consultant which concludes that 38 percent of people thought the book gave a false impression of endorsement by J.K. Rowling (and 55 percent did so without any other mitigating factors rendering their answer unusable; one such factor was thinking that J.K. Rowling actually wrote the book, or that the Lexicon Web site was a place to buy Harry Potter books).
3. The Lexicon book would be "in direct contravention" to J.K. Rowling's plans on her own encyclopedia for charity. RDR and Steve Vander Ark were aware of J.K. Rowling's intentions and that this book would be a violation of her rights. It says Steve Vander Ark's letter requesting employment on the official encyclopedia was sent in July 2007, and "after his services were declined, Mr. Vander Ark then set out to have materials from his own Lexicon Website turned into a book in competition with Ms. Rowling's planned book...knowing full well that Ms. Rowling would not even be finished with her book tour following the July release of the final Harry Potter book - much less able to start on her next companion guide - Mr. Vander Ark sought to finalize and release his Infringing Book almost immediately following that July release."
4. JKR/WB attempted to circumvent a lawsuit.
5. That RDR Books' main excuse for its conduct is that it is a print version of the Lexicon Web site; the complaint then cites a technology authority at WB's law firm who claims to have downloaded the entire Lexicon - "more than 891,851 individual data files totaling approximately 50 gigabytes of data" - requiring a dedicated computer working for more than 120 hours. "To print out the entire content of the Lexicon Website would take a similar amount of time, if not more, and considerable effort, if not more, because we used professional equipment...in other words, a reader cannot easily print out the Web site and read it like a book."
6. That there is a difference between allowing fan sites copyright latitude to discuss Harry Potter and "allowing a single fan site owner and his publisher to commercially exploit the Harry Potter books in contravention of Ms. Rowling's wishes and rights and to the detriment of other Harry Potter fan sites."
7. The Lexicon book (the complaint includes pages from it) contains "lengthy plot summaries, spoilers, and detailed descriptions of characters...synopses of the major plots and story lines of the Harry Potter books, descriptions of the history and personalities of nearly all of the Harry Potter characters, and detailed catalogues of the fictional creatures and magical elements that constitute the "heart" of the Harry Potter books."
8. That RDR's attempt to pass the book off as scholarship is "a sham," and that the Lexicon book is "not a reference book or a scholarly critique, merely a mass-market work that lifts whole chunks of Ms. Rowling's texts and orders them alphabetically, in effect 'rearranging the furniture' that Ms. Rowling created while lacking any orginality or invention.' "
9. A rule against JKR/WB would harm the fan community by "necessitating more monitoring and restriction of fan activity by copyright owners afraid of compromising their rights against infringers."
10. RDR's "bad faith" actions (ignoring cease-and-desist letters, responding by claiming copyright on the Harry Potter timeline, and offering rights to the book to German and Taiwanese publishers while asking for more time to respond to WB because of a family emergency) is cause for injunctive relief.
11. That Steve Vander Ark claimed "in a 'smoking gun' e-mail that it would be 'illegal' to sell such a work without Ms. Rowling's permission and that she had reserved her right in the Series."
12. Allowing RDR to proceed would effectively 'scoop' J.K. Rowling on a work she intends to publish herself, as well as deny her the "exclusive right to be the first to create a definitive encyclopedia of the Series, as well as the right to exercise quality control over derivative works based on the Series. Moreover, when Ms. Rowling publishes her own guide she might find herself in the absurd position of defending a claim that she infringed RDR's copyright in its unauthorized derivative work based on her creation. Nor is this possibility remote: RDR has already written to WB claiming infringement of a timeline based on the Series and posted on the Website."
13. There would be a 'societal' cost to allowing publication as it would open doors to similar unauthorized works, make it unclear to official licensees who had the right to grant rights, and confusing customers about what "goods are authorized, and diluting the goodwill Plaintiffs have built up in the Series through their policing and quality control."
The remainder of the complaint consists of many more declarations and pieces of evidence. Significant portions of J.K. Rowling's declaration (dated January 15, London) read:
"To this day, I care deeply about how the characters and story lines are presented and what type of derivative works I license based on the Harry Potter books. I require that all licensed materials, such as the films based on the books, be of the highest quality. I also limit Harry Potter merchandising in an effort to maintain quality controls. In other words, I am careful about the way the Harry Potter books are presented to the world. I believe I owe that much to the millions of Harry Potter fans who have grown to love the books and to trust in the quality of the products associated with them.
"I am extremely appreciative of the support both I and the Harry Potter books have received from the fan community. I enjoy and encourage the free flow of ideas, creativity, commentary, and discussion of the Harry Potter books, including on free-of-charge fan websites, even if it has meant allowing these fan sites to reference copyrighted Harry Potter materials or to create derivative works such as fan fiction or art. I express my appreciation for fan sites and the fan community by, among other things, bestowing a 'fan site award' on one or more of the Harry Potter fan sites each year. In June of 2004, I granted just such a fan site award to the Harry Potter Lexicon fan site partly because of the free and open nature of the site. That being said, I never intended for this award or my encouragement and support of the fan community to be taken by anyone as an authorization for them to create and sell an infringing Harry Potter book (or any other materials) for their own financial gain.
"I have chosen not to license a Harry Potter companion book similar to RDR Books' proposed "lexicon" because I intend to write my own. In addition to the two companion books I have already written -- Fantastic Beasts and Where to Find Them and Quidditch Through the Ages (the "Companion Books") -- I have stated on my web site, in numerous interviews in the press and elsewhere that I intend to publish a definitive guide to all of the creatures, characters, places, and other elements that comprise the Harry Potter world. Just as I did with the first two companion books, I will donate royalties from such a companion book to charity.
"Moreover, I have made and kept notes in connection with each of the Harry Potter books, which I have recently begun to augment with additional materials that I intend to include in my own companion guide. In addition, I am aware that both my British and American publishers, Bloomsbury and Scholastic respectively, have each compiled and indexed the material from the previous Harry Potter books and that these materials would be made available to me if I chose to use them.
"The seventh and final book in the Harry Potter series was only released less than six months ago on July 21, 2007. I was touring in support of the book, most recently in the United States and Canada, until December, 2007, after which, I took a much-needed break.
"I was thus sad and disappointed to learn while in the midst of touring in support of the last Harry Potter book that RDR Books and Mr. Vander Ark planned to release a Harry Potter "lexicon" directly contrary to my wishes. I understand that the prposed book is neither commentary nor criticism of the Harry Potter series -- either of which would be entirely legitimate -- but instead lists in alphabetical order the various fictional characters and things in the Harry Potter universe. It is as if I have been 'scooped' before I even had the chance to wind up the book tour for the final Harry Potter installment, much less to write and publish my own Harry Potter guide.
"Even worse, RDR Books and Mr. Vander Ark apparently are attempting to justify publication of the 'lexicon' based on the past praise I had given to the Harry Potter Lexicon fan site. As I have already explained, I have always supposed Harry Potter fans, even if it has meant allowing fan websites to reference copyrighted Harry Potter materials, but have drawn the line at selling such materials for commercial gain. By threatening to publish and sell the unauthorized 'lexicon,' RDR Books and Mr. Vander Ark have crossed that line.
"It is incomprehensible to me that this 'lexicon' should be allowed to be published simply because I encourage and support fan websites or because Mr. Vander Ark was able to finish his 'lexicon' while I was still touring in support of the last Harry Potter book. My fear is that if the 'lexicon' is published, authors like myself will be forced to restrict the use of their materials on fan websites or risk losing their right to restrict other unauthorized uses of those materials. Such a result benefits no one and hurts the fan community most of all.
"Contrary to assertions made by RDR Books and Mr. Vander Ark, there is an enormous difference between enjoying the free Harry Potter Lexicon fan site and allowing a book to be sold that directly competes with future Harry Potter works that I intend to author. Moreover, the website differs significantly from RDR Books' proposed book. The website, to which I gave a fan site award, features exciting graphics, user forums, and critical essays, whereas the proposed book simply repackages story lines and characters from the Harry Potter series in an alphabetical A-Z listing. Also, as I mentioned, the website is free whereas RDR Books plans to sell the book fro $24.95. Lastly, the 'lexicon' does not measure up to the standards that I have set for licensing derivative works. In short, I would never have approved of this 'lexicon.'
"To add insult to injury, I have learned that RDR Books intends to market the 'lexicon' in a way that suggests that I have endorsed it when, in fact, the opposite is true. The back cover of the proposed book contains a large and prominent quote by me that makes it look like I am endorsing the book. In fact, the quote was taken without my permission from a fan award I gave the Harry Potter Lexicon fan site in 2004, which as I explained above, is different in style, purpose and commercialism from the proposed book. Given the similarity between the names of both the website and the 'lexicon,' the book gives the false impression that I have approved of it and suggests to my fans that I am encouraging them to buy the book, when I am not.
"I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities that I intended to benefit. Accordingly, I respectfully ask this Court to stop publication of RDR's Books' 'lexicon' and send a message to other would-be infringers that they may not capitalize on the fame and success of the Harry potter franchise in the future."
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The text of the e-mail string between Steve Vander Ark and the Christopher Little Agency requesting employment on the official encyclopedia is included in the document. The first few emails request a meeting during Vander Ark's July appearance at Sectus, which were declined. Emma requested questions be sent through via e-mail, and Vander Ark sent the following response:
"Hello, Emma:
"Basically, the question is a personal one. I would like to be moving to London soon, but one of the things holding me back is that I don't have a job there. I have registered with TeachLondon and have been pursuing a few other possibilities, but I'm a school reference librarian and TeachLondon and other such services are primarily looking for classroom teachers. I am a US citizen and need to have a job lined up in order to get a work permit.
"I have no idea what Rowling is planning now that the novels are finished, but if she is thinking of working on an encyclopedia or other references to the series, I would be a good candidate for work as an editor, given my work on the Lexicon. I had hoped to meet with you simply to give you a note to pass along to Rowling making the enquiry.
"I said that I have other people to talk to. Actually,that's one person: Fiddy. I have her email address and can send a note her way. I thought it would be best, however, to send this through Christopher Little since you're her literary agents and would be directly involved with a project like this.
"Please give me your honest opinion on this. I am 49 years old and have proved myself to be a lot more than just some teenaged fan with a website. If you think this idea has some potential, let me know how you think I should proceed. If you think I'm wasting my time, I would appreciate your being honest with me on that as well.
Thanks for taking the time to consider this.
Steve"
The response, from Ms. Schlesinger:
"Dear Steve:
"Thanks for this.
"Whilst we appreciate your very clear continued interest in Harry Potter, should Jo decide to work on an encyclopedia or other Harry Potter companion book, she will definitely not be looking to collaborate with anyone, so we regret that we can't offer you an anchor to move over here. For the record, we have confirmed this with Fiddy, so no need for you to write directly. Thank you however for sending via us.
"All the best for your future plans.
"Best wishes
"Emma."
Steve's response:
"I really appreciate the quick reply. I wasn't really thinking of collaborating, just working somewhere in the organization, but I do understand what you mean. I wouldn't have contacted Fiddy about this once you had said it wouldn't work, but thanks for mentioning it to her. You never know what might come up."
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There are also declarations from fans Matt Lawlis and Jessica Lares, stating that they e-mailed Vander Ark and Melissa Anelli (the writer of this post and webmaster of the Leaky Cauldron) saying that he should publish the Lexicon and he demurred, stating:
"As the editor of the Lexicon, I get email every so often from fans asking me to publish the Lexicon in book form, so I've dealt with this question before. Basically, it is illegal to sell a book like that. Jo has reserved all publishing rights to her intellectual property, which means that she's the only one who may publish any book that is a guide or a encyclopedia to her world. And since we're fans and supporters of Jo, we wouldn't do anything that would violate her rights, even if we could get away with it. We wouldn't get away with it, though, since Neil Blair, her solicitor, is very quick to defend his illustrious client in things like this.
"So while it's a smashing idea, it simply isn't something that's allowed at the moment. Believe me, when the series is finished, I plan to petition Jo to allow the Lexicon to work with her to create the ultimate Harry Potter encyclopedia. In the mean time, we'll have to use the various online resources."
[It should be noted that while the two fans state that I was on this e-mail, the listed recipients do not include e-mail addresses I've ever used, and I have not been able to locate this file in my records; probably just a little mixup.]
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Other declarations include ones from:
Jeremy N. Williams (Senior Vice President and Deputy General Counsel, Warner Bros. Entertainment Inc.) - attesting to the various registered copyrights and trademarks of Harry Potter.
Jeri Johnson (Senior Tutor / Academic Dean of, and Ashby Fellow and Lecturer in English, at Exeter College, University of Oxford)
Suzanne Murphy (Vice President, Publisher, Trade Publishing and Marketing, Scholastic, Inc.) - Who speaks to the differences between the Lexicon book and web site, and the standards set for publication of Harry Potter materials
Dale Cendali (partner at O'Melveny & Myers LLP law firm) - giving a full record of the correspondence between the firm and RDR Books once the book had been discovered
Cheryl Klein (Senior Editor and Continuity Editor on Harry Potter for Scholastic, Inc.) - giving evidence of the publishers' own index of canon information that it uses when editing
Neil Blair (Attorney and Junior Partner, Christopher Little Literary Agency) - chronicling his initial efforts to cease publication of the book
William Landes (Clifton R. Musser Professor of Law and Economics at the University of Chicago Law School)
Myron J. Heifgott (Consultant in survey research) - who performed a survey indicating that between 38 and 55 percent of people would assume a Lexicon book was falsely encouraged by JK Rowling.
Sarah Odedina (Children's List Publisher, Bloomsbury Publishing, PLC) - giving evidence of the publishers' own index of canon information that it uses when editing
Diana Birchall (Story Analyst for Warner Bros. Entertainment Inc.) - indicating after a review of the Lexicon book that the book reorganizes and restates the Harry Potter story, without analysis or comment, or placing the series in any social context. It also says the book "makes use of extensive paraphrasing that is alarmingly similar to the original Harry Potter text" and that many entries "quote verbatim lengthy portions of the Harry Potter books."
Melanie Bradley (counsel at O'Melveny & Myers LLP) - documenting her review of the web site and subsequent findings, including several instances where Steve Vander Ark asks others not to reappropriate his work
Emily Blumsack (Associate, O'Melveny & Myers LLP)
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There is much more on this to come as we read and absorb it all. Stay tuned.
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Sorry to side-track the conversation, but can anyone explain to me why JKR’s encyclopedia is called the “Scottish Book”? Not understanding is just bugging me. :-)
It was considered bad luck to refer to Shakespeare’s play MacBeth by name, so they referred to it as ‘The Scottish Play’.
In order to keep from Jinxing the encyclopedia, JKR referred to it as ‘The Scottish Book’. It was in a recent Leaky podcast.
wow, point 12 really makes me angry, to think that other people can claim copyright ahead of JK for something derived from JKs work, and that RDR have already attempted to claim infringement!
It took forever to read through all the comments, but I’m glad I did read all of it. Thanks, first of all to Melissa and TLC for giving us the summarization of this law suit—reading through over one thousand pages of legaleze is not appealing, even though I want to know what the complaints are.
And thanks also to Morton K for your insights on the publishing aspects. That was very helpful.
I’ve thought for a while that JKR is well within her rights to stop the publication of the Lexicon, and all of this information convinces me even more.
Someone mentioned the use of copyrighted art work on cakes and it made me remember something from the 1980s. I used to go to the bakery at a local (but chain) grocery store for birthday cakes that had Disney or Warner Bros images, basically anything that was on a piece of paper. They suddenly stopped doing it and the art work was very generic, so no more My Little Pony cakes or Mickey Mouse. It all had to do with copyright, and obviously those companies had not given their permission for use on the cakes. The point is that people sometimes do things that infringe on copyright (whether it’s intentional or not), but that doesn’t make it all right to do so.
Steve and RDR, by continuing plans for publishing, have so overstepped the bounds of copyright, and just plain common sense. When the owner of something asks that you stop using their property, it’s common sense to stop. In going ahead, it just shows bad judgement and foolishness.
And of course, that email that Steve sent that stated it wasn’t legal to do just what he is now trying to do is not going to help him at all. From that, it’s clear that it is something that he understood was wrong but decided to do it anyway. I’ve met him and heard him speak, and for the life of me, I just don’t understand what he was thinking when he went ahead against JKR’s wishes. He speaks of himself as a fan, but a real fan would not be so disrepectful.
I’m behind JKR on this one, one hundred percent.
I think we should not be so harsh on Vander Ark. Of course he is in the wrong, but we don’t know how much of this is the result of stupid RDR. Vander Ark must be feeling very betrayed by all the people who have visited and enjoyed his site. He needs to find a way out of this horrible situation, but we should not throw him to the wolves like this.
Does anyone know how this is influencing Melissa’s book?
I can’t imagine that there’s much impact, since Melissa’s book is about the fandom and the impact of Harry Potter. But I was just curious if she or her publisher is jumping through any extra hoops to make sure all the ‘t’s’ are crossed and the ‘i’s’ are dotted.
Melissa’s book will be fine, because it is on the Harry Potter phenomenon rather than the content of the books themselves. Also I believe Melissa has talked to people involved with the books in the course of her research, so I imagine if there were likely to be any problems (unlikely because of the type of book) they would have been sorted out already.
When Jo was on pottercast, I did wonder if Jo was aware of Melissa’s book and if so why no mention of it. Of course, I am sure Jo gives her blessing if she does know about it as it does not in any way break any copyright infringement. I personally look forward a great deal to buying Melissa’s book.
Actually, I also wonder if Melissa will include stories of copyright including this saga with Vander Ark? I wonder what will it be called? Melissa Anelli and the Fandom of Harry Potter? I do hope this case is not distressing Jo too much and taking up all her time. She has children to look after and chocolate cakes to bake, oh and maybe more books to write! I am not bothered about Scottish book or Lexicons. I want to read a darn good story and thats what Jo is the Queen of, storytelling. So I look forward to more stories from Jo, be it crime, fairytale, comedy, whatever. She can take her time. The wait is always worth it.
Hi all: As roonwit rightly pointed out, my book is fine because it does not deal in the content, but the phenomenon, of Harry Potter. I also wrote Jo and others extensive letters about it before I started writing in earnest, to make them fully aware of what i was doing and that it would be respectful.
There haven’t been any hoops that have required jumping on the part of my publishes; JKR’s people have been remarkably above-board about the whole thing.
AND NO it won’t be called Melissa Anelli and the Fandom of Harry Potter. LOLOLOLOL. Sorry, the idea is cracking me up. :) Right now the title is “Harry, A History: The true story of a boy wizard, his fans, and life inside the Harry Potter phenomenon.” That could change before it hits press. I’ve just finished a draft and will be editing through the spring. I do address copyright bt the Lexicon thing happened outside the time frame of this book, isn’t the first lawsuit for HP copyright, and is ongoing, so it’s not a significant issue in this book, at least so far.
Melissa, I cannot wait to read it – the title alone is amazing.
Steve, please, just stop. As is evident, this controversy is really disturbing the comradeship (and even civility) in the Potter fandom. I don’t understand RDR or Steve’s logic behind persuing this issue, but my personal opinion is that Steve was upset for not being able to play with Jo in making the official encyclopedia.
Jo, on the other hand, has been extremely graceful throughout this thing. She consistently expresses her admiration for the Lexicon website and her disappointment that this controversy has reached the levels it has. Bottom Line: This is HER work and imagination that Steve is reorganizing and calling his own for money. Despicable.
We’re behind you 110%, Jo!
I have watched this without commenting as I was hoping something would happen to make me thing more positively about Steve. The emails are very enlightening about the real Steve.
I just removed The Lexicon from my bookmarks. Sorry, the comments he’s made, the actions he’s taken, I’m just not going to support him in any way.
Thanks Leaky for letting us know what is happening.
For those interested, some of the stuff Melissa refers to is now up on justia.com at http://news.justia.com/cases/featured/new-york/nysdce/1:2007cv09667/315790/
DaisyRenee, thanks for your thoughtful reply to my post a few pages back. I agree that a referece book for a fictional world is very different from a reference book for the real one. And it makes sense to me that a reference book of fictional facts might require the permission of the author who created those facts. I just think it’s a bit of a stretch for the complaint to say, with no qualifications, that the Lexicon is “not a reference book.” My concern is that, while not explicitly saying so, the language of the complaint seems designed to give the impression that the Lexicon’s encyclopedia entries are not of much value to fans, when in fact I suspect that most fans find them to be the most valuable part of the website.
Melissa, congratulations on finishing a draft of your book! :)
I heard from a cousin that lives in New York that is a friend of a niece of Melissa’s editor that her book will be called Melissa Anelli and the Mystic Kettle of Nackledirk. It’s all true. Honest.
Melissa, I hope you didnt get drunk and vandalised a valuable statue on finishing your first draft ;) Thanks for giving us that mouth watering exclusive on your book though.
I hate it when it comes to this. Look, I am huge fan of SVA and the HPL…and of Jo and the books. So…just get it overwith! MuggleNet did their little book, and then there’s Harry Potter A to Z…. I hate lawsuits. Especially ones involving Harry Potter
I haven’t read ALL the comments; my normally spritely computer really bogs down in the comments. I really like The HP Lexicon (although TLC is my favorite HP site BY FAR!). However, Vander Ark, bless his HP-besotted heart, has definitely misunderstood what an “essay” is. The “essays” in the HP Lexicon consist of things as vapid as lists of all the places the number 7 occurs in a given book. Don’t get me wrong, many of these “essays” are extremely enlightening and entertaining. But the VAST majority of them bear no resemblance whatsoever to literary criticism. He cannot argue that his proposed book contains “essays” (which would be permissible), based on what I’ve read at his site. No disrespect to Vander Ark. I think he would like to earn a dime for all of his hard work, and who wouldn’t? But he can’t pass this book off as literary criticism. His HP work will have to remain a labor of love.
Sorry, comments are closed for this article.
Leaky Poll
Moving the HBP film to July 2009 is:
- Completely unforgivable33 (45%)
- Annoying, but I'll get over it27 (36%)
- Not something I care about.3 (4%)
- Cool; who wants to go to the movies in the winter anyway?1 (1%)
- Awesome! I get to save $10 until next year.3 (4%)
- Awesome! I get to save $10 because now I'm skipping this movie!4 (5%)
- I've made a Facebook group, started a protest, called my local councilman, staged a sit-in, started a boycott, and organized a million-fan march because we won't stand for the - wait, what was this about again?2 (2%)
Libby, Jo claims to have used the Lexicon for checking up a few facts when she was traveling and didn’t have her own notes handy. That’s all.
Perhaps she will need some help with the Scottish book, but as she says herself, there are people at both Bloomsbury and Scholastic who has ¨kept notes. People whom she knows and has worked with for several years. There is no reason she would ask a total stranger for help, dedicated fan or not.