In The News
JKR/WB File Full Request for Injunction (Part 2)
Companion BooksThe full request for an injunction against a proposed Harry Potter Lexicon book has been filed; we began going over this 1,100 page document in this morning's post. Please read that for the basic summary, including JK Rowling's statement and the overview of what this document contains.
These documents have now been posted on Justia.com with all assorted exhibits and evidence. Examples of the book in question may be found here, here, here and here.
Below are more prevalent facts from the arguments and evidence pulled from this huge document:
1. Steve Vander Ark's contract with RDR contained an abnormality for publishing contracts in general in that the publisher, and not the author, was responsible for copyright infringement claims by J.K. Rowling (but not by others). It also "tried to hide its infringement by insisting that foreign publishing agents not show or discuss the Book with publishers of the Series."
2. The contract also specified that Steve Vander Ark be given a 50 percent cut of any book sold through the Lexicon or "any other Floo site," meaning Steve Vander Ark's portion of the sale price of a book sold through any Floo web site would be about four times what it usually is for a hardcover. The total profit of the book would be split between Vander Ark and RDR. This was not discussed with all Floo webmasters.
3. In this law suit, WB is also seeking a judgment that the Hogwarts Time Line in their DVDs does not infringe any "purported rights Defendant or anyone else claims to have in a Harry Potter-related time line from either the Infringing Book or the Lexicon Website."
4. The contract with RDR was signed on August 23, 2007, and a deadline for the book was set for Sept 1, 2007 (though we believe was met a few weeks later).
5. The complaint includes entries of the Harry Potter Lexicon book (as well as a lengthy excerpt as an exhibit). Two such entries:
"Abraxan - A breed of winged horse; the Abaxan is a gigantic, exteremely powerful Palomino (FB). Madame Maxime, headmistress of Beauxbatons, breeds them (OP20) and the winged horses that pull her carriage are Abraxans. They drink only single malt whisky and require "forceful handling" (GF15)."
"Abyssinia Another name for Ethiopia, and presumably the home of the Abyssinian Shrivelfig (PA7)"
6. J.K. Rowling's name has been used on the cover of the book as well as in marketing materials
7. The latitude given by JKR/WB regarding copyright is meant for fans who offer free-to-public sites, and "cross the line when they are offered for sale instead of fun...while some fan sites feature ads, the sites are free to fans and the ads primarily consist of minimal Google-style automated ads that Plaintiffs permit to help the sites defray their operating costs."
8. The claim asserts that to determine whether a book is "transformative" (for all intents and purposes, allowable) the law indicates consideration of whether it's a commercial work, and whether the new work transforms the original to create new, protected expression. In the case of the HPL, "profit is its only possible purpose as nearly all of its content is already freely available on the Web site. Nor is it transformative, as it adds no value to the copyrighted work by using it as raw material 'in the creation of new information, new aesthetics, new insights and understandings' and is merely meant to 'repackage [the original work] to entertain[the original work's] viewers.'" (The quoted portions refer to a verdict in which a book of Seinfeld facts and trivia was found to be infringing.)
9. RDR instructed foreign agents not to pitch the book to any of JKR's publishers. (Letter of proof included.)
10. Jeri Johnson, academic dean at Exeter College, University of Oxford, said the Lexicon fails to constitute a work of scholarship because "it lacks any degree of originality or inventiveness, nor does it contribute in any original way to the creation, development or maintenance of the intellectual infrastructure (of the language or discipline of 'Harry Potter') that is particularly necessary for this type of work. There is no information contained within the Lexicon that is the original work of its author or that is derived from any other source other than the Harry Potter Books or the statements of J.K. Rowling.... Mr. Vander Ark incorporates virtually no independent analysis of the Harry Potter Books. He engages in no discussion of the themes, metaphors, or literary devices that are present within the Series. The Lexicon remains silent on its logic of definition or etymology; its principle of organization is simply alphabetical, that of selection: don't select; include anything and everything. Overall the Lexicon adds nothing new to the field with respect to the Harry Potter Books."
11. Neil Blair, solicitor for the Christopher Little Agency, notes in his declaration that Steve Vander Ark has "long been aware of Ms. Rowling's efforts to balance the interests of fan sites and those of Ms. Rowling. In the past, CLLA contacted Mr. Vander Ark on behalf of Ms. Rowling and asked him to remove certain infringing content from the Lexicon Website. In that instance, Mr. Vander Ark posted content obtained by decompiling files from Ms. Rowling's copyrighted website without permission and reengineering them for display." The string of emails that follows is attached; in it, the request to remove the content is agreed to promptly, and then followed by further requests which are also met.
12. William Landes, the Clifon R. Musser Professor of Law and Economics at the University of Chicago Law School, who also holds a Ph.D. in Economics from Columbia University, also signed a declaration attesting to his expertise in the "economic analysis of law, industrial organization and intellectual property." He was asked to evaluate RDR Books' use of JKR's material from an economic perspective. His major views on the economics of copyright law are that granting JKR rights in derivative works "promotes economic efficiency both by reducing transactions costs and by bolstering the incentives to create new works. As a corollary, the rights to derivative works should be extended both to authors of highly sucessful original works, such as Ms. Rowling, as well as the authors of less successful works," and that, "under limited circumstances, the "fair use" of material without the copyright holder's consent will promote economic efficiency."
He goes on to say that the publication of works like the Lexicon "requires permission of the copyright owner," with limited exceptions. "In short, copyright protection increases social welfare by preserving the incentives to create and distribute new works," without such protection people would be less likely to invest in new works because of an expected limitation to financial success.
Examples of works that constitute "fair use" are instances in which the harm to the copyright holder is negligible, for instance in direct quotation of brief passages from a book, or unauthorized photocopies of newspaper stories by teachers.It can also promote economic efficiency when the use generates a financial benefit to the copyright holder - as in the unlicensed use of small amounts of copyrighted material in a movie or book review. It can also be considered acceptable fair use, he states, when despite small harm to the copyright holder, others are significantly benefitted, such as during software development.
He says that the HPL does not meet any of these conditions, and contains no literary criticism or analysis that would make it legitimate. Also the book uses an extensive amount of material from the HP books: "It does not merely use a few brief passages.
"Publication of the HP Lexicon would be likely to impose significant costs on Ms. Rowling. Not only would Ms. Rowling lose licensing fees from RDR books, but also from publishers of other derivative works that otherwise might attempt to license from her. Perhaps more importantly, Ms. Rowling also could lose income from the sale of her proposed companion encyclopedia...the HP Lexicon and Ms. Rowlng's planned volume may be close substitutes as gifts for Harry Potter fans, but the website does not serve this purpose. Thus, the harm to Ms. Rowling resulting from publication of the HP Lexicon is likely to be substantially greater than the harm resulting from the website."
13. Diana Birchall, story analyst for WB, notes that the Lexicon book "simply reorganizes and restates the Harry Potter story. it does not cite to any third party sources." It notes that the Harry Potter entry is over 10 pages long and restates the story, retelling the entire series (similar with Voldemort's entry). Some entries rely "almost entirely on quotes...extensive plot summary and paraphrasing."
14. Melanie Bradley, counsel at WB's law firm, catalogued what is considered an interactive dialogue, and non-infringing areas of the site, and noted that they are not included in the HPL book, nor is anything arranged by topic as it is on the web site, only alphabetical order. She also points out that Steve Vander Ark says on his web site that almost all the material on the site is from the Harry Potter books, and no source "not directly attributable to Ms. Rowling" has been considered unreliable. It also points out that Vander Ark and staff recognized the effect of posting the entirety of J.K. Rowling's two charity works as competitive with sales, and so refrained in that instance.
Her declaration also mentions the copyright claims made by Steve Vander Ark on his web site, discouraging people from "framing" his web site or copying information from his site to another because "not only is that illegal, since everything in the Lexicon copyrighted, it's also just plain wrong," and that the Lexicon disabled the right-click feature on its web site in an attempt to claim copyright.
A cease-and-desist letter sent to Warner Bros. regarding the Hogwarts Time Line is attached (written by Roger Rapoport) and says:
"It has come to our attention that the 'Hogwarts Timeline' included in the extra features of the Warner Bros. DVD versions of Harry Potter and the Chamber of Secrets, Harry Potter and the Prisoner of Azkaban, and Harry Potter and the Goblet of Fire was copied directly from the Harry Potter Lexicon website without Mr. Vander Ark's permission. We have been given to understand that the timeline will also be incorporated in the special features of the forthcoming DVD version of Harry Potter and the Order of the Phoenix, announced for December 2007 release... No such timeline is contained in any of J.K. Rowling's Harry Potter novels. Mr. Vander Ark published details that were found nowhere else. This timeline, like all the material on the 1,000-plus-page Harry Potter Lexicon, is the original work of Mr. Vander Ark and his elite team of academic scholars, literary critics and reference librarians. It is copyrighted 2001 through 2007 by the Harry Potter Lexicon."
The declaration asserts that the HPL has no copyright claim, and that even if it did, WB's timeline does not infringe.
Claims that the book is an academic resource are rebuffed by a piece of evidence showing Roger Rapoport's instruction to a colleague to focus on children's bookstores for sales.
The question of authorship arises here as well: Steve Vander Ark has said the Lexicon was "created, edited, written and maintained primarily by one person, me," and the book has listed only one author; however an e-mail from Roger Rapoport says the book was the result of 20 academic scholars and reference experts' work.
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Thanks for the explanation, Melissa. I couldn’t figure out what the 50% was 50% of. Really appreciate your cool head and all the reporting!
That is indeed the case Kyle. And thanks, again, guys. I’ll edit the post so it makes that clearer.
I have been behind JKR since day 1. It’s sad to think a fellow Michigander is doing something like this. I do believe he is doing this for monetary gain. SVA cannot claim copyright on any timeline. The entire HP series is the intellectual property of JKR. It was was Melissa and the rest of the staff here, I would break off the partnership with the Lexicon. I understand they may have to wait until the final word…but after that I wouldn’t want to have my site’s name next to SVA’s.
This has nothing to do with JKR or WB being money hungry. JKR has said many times that the proceeds from her encyclopedia would go to charity. She doesn’t want sales of Steve’s encyclopedia to jeopardise the sales of her own book, and therefore, the amount of money she will raise for charity. Of course the hardcore fans will buy both, or just JKR’s book, but the casual fans probably won’t, JKR realises that, and that is why she is doing this.
The fact is, JKR owns the Potterverse and should have the right to give a green or red light to any work that uses it. Simple as that. I don’t believe there is anything wrong with selective enforcement of an authors copyright. When it was a free web-based resource, she was fine with it. Now that it’s set to become a publish book that will eat into the amount of money she can raise for charity, of course she wants to assert her copyright and block it from being published.
It will be a serious miscarriage of justice if Steve is successful in publishing his book.
I don’t know.
I would buy the HPL by SVA if it came out jsut because I am very hungry for any information about the series. That does not in any way mean that my buying SVA lexicon book would influence my decision on buying the Scottish Book. I don’t think charities would lose out much, at least not from the real fans.
I will buy anything JRK ever publishes that is Harry Potter related (and I hope for everyone’s sake she changes her mind and publishes more books on HP universe, even if they don’t have Harry Potter as the main character).
That said, I just hope that SVA doesn’t take Lexicon offline because I really like the site.
What I’ve been wondering is how the people who WORK for the lexicon, who contributed content, feel about SVA publishing their work for profit. Why haven’t we heard from them?
Melissa and staff of Leaky Cauldron,, when this is all done I’d love to hear your thoughts on this. Obviously you can’t right now because you’re a member of the Floo Network along with SVA. But with you guys basically giving promotion for his book for free (if I read your post correctly)....that would piss me off.
Thanks to everyone who took a stab at answering my question! I’m still not sure what Johnson meant, though. As we can see in the photocopied pages included with the complaint, the Lexicon provides etymologies for essentially all spell and potion names that have a likely origin in a language other than modern English. Seems pretty logical to me. SarahW’s point about the distinction between organizing alphabetically versus organizing in some truly novel or creative way does make a lot of sense. But if that’s what Johnson meant by “The Lexicon remains silent on its logic of definition or etymology,” then she certainly didn’t articulate the thought very clearly.
I’m sorry but I just DO NOT understand how he could claim copyright over the timeline used on the movies. The HP world is 100% created by JKR, so she could have made the exact same timeline if Steve was right about all his dates. And for that matter, any fan could make the same timeline if we had nothing better to do!!
I just think this whole thing is completely ridiculous, and I completely agree with the person who said something about Bill Gates. Selling a copy of Microsoft is illegal, and he’s one of the richest men in the world, so how is it any different because she’s JKR? The only difference I think is that she has spent a good portion of her life dedicated to nothing but Harry, and has said that the books are like children to her. I think one is even dedicated as her daughters ‘paper and ink twin’ or something.
This whole affair is just something she should not have to go through with, she should be celebrating the end of the series and writing the Scottish book, not getting betrayed by someone she thought was a fan and a friend.
Well done, Melissa! And thanks again for your work!!
First of all, some definitions:
Lexicon: synonyms: Dictionary or Enciclopedic Dictionary
Lexicon: A stock of terms used in a particular profession, subject or style; a vocabulary: Ex. A lexicon of Surealist Art ................ I only have a thing to say, or better, to ask: Have you ever find a Lexicon with “personal comments”, “oppinions” or “influence” about the things, words, events o persons ?
For my a Lexicon is basically a better and more complete dictionary, I would not like to know the personal opinion of the autor…
If Jo wins, do you imagine how big should be the royalties and other permissions fees that the British Enciclopaedia would have to pay from now on?
Maybe I am wrong about all of this, but surelly it is all about $$$
I don’t think JKR is doing this for money at all. If they don’t sue, others could take the goahead and make copies of her books for profit as well, and they couldn’t be stopped because if the Lexicon was allowed, then everyone else has to be. It is JKR’s work and needs to be protected. I feel bad for her because she has to sue and people are saying she is money hungry? That is just mean, after everything she has done for her fans and this is how she is treated. Steve should be ashamed of himself. From what I’ve gotten the impression of, JKR thought he was a friend to her and just a big fan of her work, and then he goes and does this to her. It’s just wrong. Poor Jo!! If she doesn’t win this lawsuit I don’t think there is any justice in the universe!
BigRonFan- I think you ARE all wrong, not to be mean. But Jo has plenty of money, and does so much for charity. Her own encyclopedia’s profits are going to go completely to charity, how can you say that it’s all for the money? Steve is obviously only doing it for the money, from what I got out of this article he is getting half of the profits of the book? The entire lexicon is online for free! There is no need for a book, it is just so Steve can take the HP fans’ money. I also want to say that I think that just having the Lexicon already took away a lot of the profits that could have come from the other two books Jo did for charity. I was going to buy the Magical Beasts book online until I found out I could just read about every one of the creatures on the lexicon site… so…
BigRonFan – The substantial difference between the HP Lexicon and an encyclopedia of the real world (World Book, Encarta, Encyclopedia Brittanica) is that the latter provide facts about actual, existing things. The world itself is not the intellectual property of anyone. The HP Lexicon does the same for an INVENTED world that is the intellectual property of JK Rowling.
I think JKR is entirely in the right here, legally. Steve and RDR not only tried to publish a book containing no original thought and substantial quoted portions of JKR’s own material, they tried to make it look like it was endorsed by her. They need to be slapped down by the courts, hard.
I do not think this is primarily about money (or competition of the Lexicon with the Scottish book; that is just a legal justification), but about JKR not wanting someone else to publish her own material for profit, particularly as it would encourage others to do the same. Which is perfectly reasonable.
I don’t think WB should have any claim here and don’t like them being involved. Just because they make the movies doesn’t mean they should own Harry Potter.
BigRonFan:
Dictionaries & Encyclopedias = Archiving real facts from real world, no one owns this information.
HP Lexicon = Archiving fictional facts invented by JK Rowling, information that Jo owns.
Surely you see the difference???
There are plenty of entries in Encyclopedias about fiction and some entirely about fiction actually
Just luv how some ppl r steamrolling Sva- W B doesnt need help
No matter from what perspective you look at it, what Steve VA and RDR Books tried and are trying to do is wrong, illegal, and unethical. They are only after the money. JKR owns the copyrights and so does WB because they paid to have the rights. Neither Steve VA nor RDR Books own any part of HP, and for that reason they can not intend to sell the original content, only re-arranged, for personal profit and call it lawful business. Other books in the market are not infringing the law because they offer either their take or an analysis of the books, that being their creation, and therefore lawfully permitted for sale with proper credit given to JKR & WB for the use of their info for the creation of THEIR work. Also, in response to people’s comments about this not taking away from JKR’s profit, it is definitely hindering JKR and WB’s profits (whether or not they will want the profits from their encyclopedia, it is theirs), and it is especially sad and cruel because the profits from the Scottish Book (HP Encyclopedia by JKR) will be destined for charity. So, unfortunately, Steve VA and RDR Books are directly affecting the profits of the JKR-made Encyclopedia, and consequently affecting the money that the charity/ charities would receive. It’s a shame that RDR Books and Steve VA would not call it quits and accept that they have not produced anything from their own creation that is lawful to sell. They could have just avoided this lawsuit and all the drama by just changing the book from a copyright-infringing encyclopedia to a book on Steve VA’s take on the HP World which would have been a huge success. I really do regret it has come to this because Steve (and the HP Lexicon team) have worked very hard on the Lexicon, and he doesn’t deserve the drama. But, oh well… Even if the intentions were good, the deed was illegal, and here come the consequences.
Finalizing… Good Luck Jo! Steve, if you read this, I hope you can get something good from the experience! RDR Books, rest assured that I will boycott all your products for your stealthy, greedy and deceitful intentions and actions!
To clarify something from my post… I meant to say: “Other books in the market are not infringing the law because they offer either their take or an analysis of the books, that [analysis] being their creation, and therefore lawfully permitted for sale with proper credit given to JKR & WB for the use of their info for the creation of THEIR [analytic] work.”
I know you guys have for sure contacted Steve by now and asked about it, but are most likely restraining saying anything about it without actual quotage from Steve (whether written or on PotterCast), especially while legal negotiations are still going on.
I just find it very weird with all the things that we have gotten from Steve that this book was made. I mean all past quotage shows that he’d never do something like this, but he did. Hopefully by the end of this we find out what went down. Until then we wait.
All I can say is that this has to be the biggest legal things fans have payed attention to since it went into question if fansites were legal some years back, all because we love both sides of the argument. We all love Jo of course, and Steve was always a great guy, not to mention that the Lexicon is amazing. But I’m siding with Jo on this, as I always have, especially with the way RDR has been handling this case.
Sorry, comments are closed for this article.
Leaky Poll
Moving the HBP film to July 2009 is:
- Completely unforgivable82 (40%)
- Annoying, but I'll get over it78 (38%)
- Not something I care about.9 (4%)
- Cool; who wants to go to the movies in the winter anyway?4 (1%)
- Awesome! I get to save $10 until next year.13 (6%)
- Awesome! I get to save $10 because now I'm skipping this movie!9 (4%)
- 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?10 (4%)
From Melissa .
“This was not mentioned to at least one Floo webmaster (me). Nothing would go to the Floo sites, only Steve and RDR.””
Wow – and if I understand things correctly, you guys have given them their website for free. (I read that somewhere) If that is the case, then I’m speechless.