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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i just can’t understand why a great fan like sva would do this. it all started with jo. it’s her world that we all love. he should show some respect. come on it’s jo!
Morally, it does not matter if you are stealing from a rich person or a poor person. To say that it is ok for the Lexicon to steal from, or infringe upon the copyright or ownership of the WB and J.K. Rowling because they are wealthy already is misguided at best.
Jo is working to protect Harry, HER work, HER creation. Ultimately, it WILL take away from any encyclopedia, etc. she may chose to create… either in terms of money, or creativity. Why should the Lexicon benefit from basically selecting a decent font and printing what amounts to Jo’s work? Why should he profit from “the sweat of her brow?”
Jo has been AMAZINGLY generous in what she has allowed fans to produce online for free… really ahead of many authors in recognizing the fans on the internet. Why on earth should she be punished for that?
Let me tell you… if the Lexicon wins, in the future NO author will be willing to allow the fans such free rein as Jo has in the past. In the future, if you wish to enjoy similar sights as The Leaky Cauldron, you’ll be rooting for WB and Jo.
I’m sure others with closer connections to this saga would describe it more colourfully, but how intriguing is this case! The to-ing and fro-ing of opinion on behalf of SVA and whether the information on the site is copyrighted to him or Jo, and then the seemingly underhand and unprofessional behaviour of his publishers. It’s like a bad episode of Inspector Rex or something, did they honestly think no-one would notice or care?
And I think the statement from Jo about the quality of Steve’s book (which, if the posted exhibits are what were to be published, indicate a very tedious read – there’s even a section on earmuffs for goodness sake) should be a clear indication of how unhappy she is about this.
All of my arguments have been stated previously and with more conviction and weight but I want to add my voice to those who have praised Melissa for her cool head and professional journalism. I have a fiery temper and would probably not be able to type with such objectivity considering what is being disclosed, so well done and keep up the excellent work!
Oh, gawd! Guys how can you take SVA’s defence???? He is motivated only by money and nothing else.. And I don’t get those who say that “there are a lot of lexicons around about thousands of subjects and nobody pays attention to them just because they’re companion books or they are just reference books” WHAT THE HECK! We are talking about Harry Potter, for goodness’ sake… Hundreds of thousands of people will be interested in a book like that, and publishing it without the author’s permission is just simply UNFAIR. And it’s just low and mean to think of publishing it if you know that JK herself is going to do it, and FOR CHARITY! Have you ever heard about The Silmarillion? It’s half tale half Lexicon, and I know a lot of LOTR fans who bought it just for the compendium… So… Anyway, as usual I completely agree with MattyJM and with a lot of other people like Minnie and others who explained their (and JO’s) reasons in a brilliant way…Thank you, and thanks a lot Melissa!
Dudley, you mention something that struck me too. All legal questions aside, the PDFs of definitions Melissa linked us to are BORING. Things that are charming and humerous in context in the books are definitely a “tedious read” as dictionary entries. It’s like someone having to explain a joke – never works. It’s too bad, too,because Steve came across as very humerous and creative in the podcasts. Too bad that doesn’t come across in his work.
Dudley, you mention something that struck me too. All legal questions aside, the PDFs of definitions Melissa linked us to are BORING. Things that are charming and humerous in context in the books are definitely a “tedious read” as dictionary entries. It’s like someone having to explain a joke – never works. It’s too bad, too,because Steve came across as very humorous and creative in the podcasts. Too bad that doesn’t come across in his work.
By the way… if he wins (and I hope he won’t) I won’t buy his book: why should I give my money to HIM when I can give it TO CHARITY (and with Jo’s approval)?
And Linden swallow I think you’re right: The Scottish Book will probably be better and funnier… but the point is that it should be the only compendium book existing…
And for those who said that WB is not concerned in this matter: WB is the real owner of the HP brand, while JK is the author and has the intellectual and publishing rights on the HP material… so I think that WB is definitely concerned in this matter…
Uff!, it gets nastier by the hour, doesn’t it?
Reading all the points of the document (Melissa: your pacience and courage to tackle the whole thing’s reading puts Hermione to shame) it’s becopming clearer and clearer that JKR is right. As for SVA’s good or bad intentions, I cannot tell, however, it seems to me RDR has indeed given a damn about copyright, JKR or SVA. And nevertheless it will be SVA, and not RDR, who’ll come the worst out of it.
Rose I completely agree with you. There is no way I’d purchase this book, or anything else Lexicon Steve puts out.
As someone who did spend a great deal of time reading over the site, I’m just disgusted that someone would go to these lengths to take things from Jo, and then to take money from his friends who pay for his site. How many free hand outs does this guy feel he’s entitled too.
I know that RDR books seems sleazy too, but Steve had to agree to let them do what they’ve done.
I’ve read this on other sites and it’s been mentioned here, but I’ll never click on The Lexicon (website) again.
As for SVA’s intentions, his reply to the fans suggesting to publish the website proves that he KNEW doing so would be wrong. Nevertheless, he agreed to publish it later. This negates any possible claim that it’s all RDR’s fault and SVA is just an innocent victim. He’s not.
(In fact, it seems to me that he had counted on getting a job working on JKR’s lexicon, and when he realized it wouldn’t happen, he agreed to publish his own lexicon. This seems to me a pretty desperate and spiteful decision on SVA’s part.)
In my opinion, J.K Rowling is becoming too greedy. Profits from her books will enrich her even further until she dies, she’s also getting money form the movies, and they’re planning to build a theme park, which will also generate her more money. Let some poor guy publish his book; he is obviously a very dedicate person. And J.K Rowling, stop asking for more money, you’re bathing in it right now.
Apparently some people still read with their eyes closed.
JKR wants to publish her own lexicon (most probably with additional information and suchlike) FOR CHARITY. SVA and RDR want to publish the book for BIG PROFIT (as it would certainly be very popular). SVA and RDR are the greedy ones here, not JKR. She just wants SVA and RDR to stop trying to profit from her intellectual property.
I have been, on this article alone, 2 hours now. Reading both the first part, and the second, and as many comments as I could stand. After having read, only the Request For injunction, (parts one and two) how anyone could read anything other than RDR’s and SVA’s unfortunate choices were wrong, on so many levels.. Unfortunate choices. To Carlos: Ms Rowling does not want the money. It has, really, nothing to do with that. Yes, she will gain profit from the items you mentioned: Movies, theme park…but, she does put most, if not all, of her profits and effort into CHARITY. RDR and SVA are ONLY interested in profits. Yes, JKR will “make money”...but it’s HER WORK! As stated, in the Request, (paraphrased) there is no added comment to the work. It is not SVA’s work. It is Ms Rowling’s work, “repackaged” for sale. The “Scottish Book” is for CHARITY. I agree, whole heartedly, with barano (and many others here) The “key words” here, are “FOR BIG PROFIT”! I also agree that, if someone were to buy a gift, for a “Harry Potter Fan”, they might buy this volume, and give it. Thinking that it really IS what it claims to be. Thus, giving more profits, to RDR and SVA. Not to Charity, as is Ms Rowling’s intention. I’m sorry, folks. I am tired and very angry about this. It is a shame and a pitty. Pure rubbish, from start to finish. Thank you, as many have stated, previously, Melissa and TLC, for providing us with “up to date” information. Keeping the fandom informed, with FACTS, is very important. You are wonderful to do this. Please keep us up to date on this. Thanks, so much, for your time and effort!
As a writer, I know how it would break my heart to have someone “steal” my work for their own benefit. It would not be about the money at all, but that’s the way lawyers & the law must operate. Financial harm can be empirically proved, but mental/emotional distress is much harder, which is why so much of the focus is on the money.
Just consider if HP had come from your heart and mind – how would you feel if someone was abusing it in this way? Really, it’s like having some bully beating up your child! Making profit from your hard work and commitment? Never mind talent! SVA should have put all of his time and energy into his own work of fiction if he wanted to have full rights to its use.
I had no idea about the Floo Network situation. That threw me quite a bit. I’ve stayed on the fence thus far, but…really? Profiting from books sold through the Floo Network, and no one on the Floo Network knew?
Yikes. : (
I can’t really say anything that hasn’t already been said, but I just also wanted to thank Melissa for pouring over all of this and breaking it down for us. Don’t know what we’d do without ya! :)
Even if Jo wouldn’t give the money from the Scottish Book to charity, I dont understand why people suddenly think, she’s greedy. Fans want to read her book, so she writes it. fans buy it. Her work – her money. It’s her creation, why should Steve or RDR have any right to repack and sell it?
And I really dont know what to say to this: “It means that whenever a link from Leaky or any other Floo site results in a sale of a Lexicon book, Steve would get 50% royalties. [...] This was not mentioned to at least one Floo webmaster (me). Nothing would go to the Floo sites, only Steve and RDR.”
I can’t believe it… I really don’t understand how Steve thought/thinks that everything would just work out perfectly well. First he tries to publish this book against Jo’s explicit wishes and then he’s …(trying to think of a nice word) deceiving the people in the fandom that are his friends and most likely to catch him after this whole disaster. That’s so stupid. How could he think people wouldn’t find out?
Melissa, thanks again for keeping us updated and all the work involved.
Shame on SVA! He’s just bitter because he couldn’t get a job with JKR on her future works. A grown man should know better. I used to enjoy the HP-Lexicon very much. Between books I would look up topics from time to time to keep myself entertained until the next release. I haven’t been to his site since this whole thing came out in the news. His pettiness ruined the experience of his site for me and I will not bother with it again.
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Since DH was published, your interest in Potter fandom has:
- Increased! I'm more involved now than I ever was!938 (22%)
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Bloody Hell (imagine Rupert’s voice). That what’s going through my head over and over when I read this. I can’t believe there’s a Part 2 after all the other points in the other post.
I agree the whole thing is sad but the guy is in the wrong and is coming across very badly which is making people feeling sorry for him. SVA name is going to be dragged through the mud and he has no one else to blame but himself.
I have this feeling that RDR might pull out. Why would they want to go through all this in court. If I was a writer and they represented me I would be really worried. They could screw me over one day.
And I wish people would stop saying that Jo is money hungry. It’s not the point and we all know that she isn’t like that so please just stop.