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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You know, what I find interesting is that at some point, Steve had to say, “let me have my attorney look over this before we proceed.” So, from my perspective, Steve did NOT do this and trusted what RDR proposed. Or if he did have his attorney look over the legalities of publishing a book like this, they did not do a very throrough job of giving him advice. I just can’t imagaine that an attorney, whose job it is look out for the legal best interests of their clients, did not think there would be any potential problems publishing this book.
Apparently, both sides are interepreting intellectual property and copyright differently, which is why there is this lawsuit. Do we know how it is that Steve and RDR came together? Who sought whom out?
Steve just doesn’t look good here. He looks like he knowingly proceeded with something he had previously acknowledged was wrong. It’s a ‘do as I say, not as I do’ situation, Someone else posted (can’t recall who right now) that perhaps RDR had Steve under contract and he has to go along with what they say. If that’s the case, Steve has not gotten good legal advice. If it’s not, Steve has not made good decisions and has fallen into a deep hole. I know if it were me I would bow out of this ASAP.
I am not a lawyer, or a judge,...so I will have to wait and see what the outcome will be. Would I buy a copy of the Lexicon?, ...yes. Would I but J.K.R.’s encyclopedia?...yes. The Lexicon would have been out for sale by now….J.K.R. has said her’s would take about 10 years to do. I don’t see how one would interfere with sales of the other, as they would be sold with so much time passing between the two. I wonder, in 10+ years if we will be standing in line for J.K.R.’s encyclopedia..? I don’t have an answer to that. J.K.R. has hinted that “maybe” she isn’t done with the Wizarding World….maybe there will be other books. All of this is speculation… Some may ask why I would buy a copy of the Lexicon, when it’s online for free. Even though I hate to admit it,...all the Harry Potter online sites will be gone in time, and the chance to have the Lexicon, in print, to share with grandchildren would be priceless. It is sad that things have deterrated to the point where only a court can untangle the legal knots.
“He is SO busted!
I don’t understand why they don’t point out that any of us could re-create his work using the HP Books if we wanted to dedicate our time to it…thus, it can’t possibly belong to him. There is absolutely no original thought, just a re-ordering of information that is useful to us fans to help understand the books when needed.
What a shame. It makes me sad.
Posted by buggub on January 16, 2008 @ 08:28 PM “
Just to comment on this first post, you are correct that anybody could have recreated the work with considerable effort and dedication. But from a copyright perspective, it really DOES matter who publishes first.
There have been cases where 2 authors have counter-sued for copyright infringement. The final determination was that, because both sides reached the same conclusions essentially independantly and apparently simultaneously, they were granted joint copyright. However, I have heard of no such case outside of research papers (just because I haven’t heard doesn’t mean it hasn’t happened, of course!).
On the other hand, where there has been a clear time disparity, i.e. one publishes significantly ahead of the other, the first out of the gate gets copyright. This is because publication is taken as an indication of completion of the intellectual property. It is generally accepted that if you got it out first, it is because you formulated the concept/ideas/conclusions first, and created the report first.
Of course, in THIS case, JKR’s work was published first, and copyrighted first, so this isn’t really an issue.
By the way, as soon as anyone writes a piece of work, or creates a piece of art, copyright is automatic, as long as authorship is clear (at least in canada, and, I believe this is true for WTO signatories). Registration of copyright is not a requirement for claiming copyright. However, registration IS a means of asserting such claim on a wide basis, makes the copyright “official” and establishes time frames.
But the reality is that even when a document is considered at least partially in the public domain, such as a newspaper article (I mean it is published and anyone can purchase it), it is technically an infringement if it is used without permission. The summary “Part 2” noted that, but also pointed out that in such cases (and they gave the example of the teacher, which I mentioned in one of my posts yesterday on Part 1), it constitutes “fair use”. However if a teacher excerpted an entire newspaper for teaching purposes, the situation might be different. The pointis, regardless of the circumstance, requesting permission should be the first common sense thing one does. In EVERY instance that my company uses others’ copyrighted material, we ask permission, regardless of the “public” nature or not. In all but ONE case, the copyright holder grants us permission with no fee, or a reasonable licence fee, as long as we appropriately reference the source. The one case simply said no, which they do for ALL similar requests. Needless to say, we did not incorporate their material, but referenced them as the place to et that material. This benefitted both parties.
Sorry for another long drawn out post – just my style I guess.
M.
This whole thing is a tragedy that didn’t need to happen. But it did.Yes, Chelle. Bitterness and pettiness. I have never read the Lexicon. I have never been to any of the Floo Network sites, except for Mugglenet. (I’m not sure if that is part of the Floo Network.) I do know that this is a “wakeup call” for everyone. A sad commentary. But needed. You cannot profit, from someone elses hard work, and expect it to go unnoticed. You cannot expect that there will be no repercussions or consequences, from your actions. SVA: You have caused an irreparable damage to yourself as well as potential damage to other FanSites. RDR: you should be ashamed of yourself. Bad advice and ill-gotten gains…or potentially ill-gotten gains. We learned, in High School, about Plaigerism. It is illegal. Yes, it is. Unfortunately, for SVA, that will cost him. The REALLY sad thing is that he, himself, mentioned Plaigerism. For his own work. Now, many people will “not bother with it (the Lexicon) again.” You, my friend, have lost. Your self respect and the respect of others. Again, I echo the sentiments of many others: Shame on you!
Also, I anctiously await your answer to this…..
SVA is begining to sound more and more like a loon.
what exactly can they write about in 1,100 pages? that’s nearly the length of lord of the rings!
“….J.K.R. has said her’s would take about 10 years to do. “
If you go and read the transcript for the Jo interview where they are talking about “The Scottish Book”, Jo didn’t actually say it was going to take ten years, John did. Jo then went on to say what her ideal layout for the book would be and then John repeated about people being willing to wait ten years for that. At no time did Jo suggest it would take that long, all she said following John’s comments was that she wanted to be able to take the time to do the Scottish Book properly, and not be rushed into print because her hand has been forced.
I think all Jo is looking for right now is a bit of a break and then the time to do her book properly – I would be VERY surprised if it took anything more than five years at the absolute outside limit.
Gillyweed, check out Pottercast #130, Dec.17th, 2007…....in being questioned, and hopeing that the encyclopedia would be written as soon as JKR would be comfortable writing it….JKR responds with ” Yeah. But would it be okay if that’s 10 years?”....she is in no hurry to get it done.
well I hope JK does do it well within 10 years, though I’d obviously also be happy with a gradual release of a 10 volume encyclopedia, each taking a year!
“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.”
Wow, SVA’s sounding more and more like another Cassie Edwards.
Gilyweed you’re right: for me it will take even less than 3 years. (I hope it will come out with the last film :) ). Anyway, that’s not the point, for me, omikse! Let’s pretend for a moment that the Lexicon book comes out: not everyone who buys it will buy also The Scottish Book, even if it comes out 5, 10, 20 yrs later. If you are an hardcore fan you will probably buy both, or just JK’s, but the majority of the Harry Potter readers are not hardcore fans, and they will probably buy the first that is published and not the second, because: who would buy twice the same book (or two books which are slightly different)?
The serious thing here is that, as Morton and others said before, if SVA wins, JK will probably have to pay him the publishing rights when she publishes the Scottish Book, and that’s absolutely nonsense and disgusting, and if I were him I would be very ashamed of myself…
Well done, Melissa!
Re. – “This timeline, like all the material on the 1,000-plus-page Harry Potter Lexicon, is the original work of Mr. Vander Ark”—Correct me if I’m wrong, but is Ark claiming copyright to his Lexicon book, and all the HP material in it, before the book has been published, while the legitimacy of his book, not to mention who the HP material belongs to, is being decided in a lawsuit? Rather presumptuous of Ark, is it not?”
Just a point of clarification, which I think I mentioned yesterday in my first post opposite Part 1 of the summary. You can claim copyright on your accumulation and ordering of someone else’s material in the sense that the others’ material in YOUR format is what you own. The original material is ALWAYS the creator’s property unless they have legally signed ownership over to another party. And by the way, you STILL have to get the original owners’ permission BEFORE you use their material.
Also, WB does have standing in this case, because they DO own parts of the HP world. For example, JKR never developed the trademarks or other indicia that WB uses (although you’d better believe that WB and JKR negotiated the rights because the intellectual property, on which the trademarks and indicia were based, was JKR’s!).
In all of these situations, it really is the case that if you negotiate first, reach agreement next, and THEN proceed, things go smoothly (usually). But if you proceed first and THEN try and either cover up or backtrack a negotiation, well … you see the result.
Now, my attempt at making sense of the “definition and etymology” statement:
The definitions of the words that have been posted are correct, but in my opinion, the point of the statement was that since the HPL book does not provide a statement of what structure they used, or what method of determining definitions or word origins and so on they were following, and BECAUSE the way it appears in the book is in fact not some new formula of advanced methodology, there is no advancement of the field of knowledge and no original contribution, even including HOW the information was compiled. In other words, there is absolutely nothing original in the book, not even the compilaton methods used.
And please note, it is ONLY the book that is at issue. The website, aside from being freely available and therefore not affecting revenue streams, DOES contain some original thinking and commentary. Nobody is claiming otherwise. It is only the book.
You know, I have to say that I feel sorry for both SVA AND JKR, because this whole situation is probably one that neither party WANTS to be embroiled in. But I feel sorrier for we who are witnessing it and having our world a little more tarnished, when the Books and others’ efforts were so directed at showing that the world CAN be a better place if only there were more understanding and love in it.
M.
“Yeah. But would it be okay if that’s 10 years?”….she is in no hurry to get it done.”
Ok, I missed that line when I was rereading the transcript, but I remember listening to that particular Pottercast and the whole mention of “ten years” by everybody was said in jest. Sure she isn’t in any hurry, but the ten years thing came across to me as a joke. I could be wrong, but that is the way it sounded to me.
How depressing. What a shame, that it has to come to this. I feel bad for both Mr. Vander Ark as well as Ms. Rowling.
It makes me so sad to see all this going on. The Lexicon is a totally excellent resource, and I know I use it a few times a week when I need to remember something quick.
To think that the Lexicon book would hurt the profits of Jo’s encyclopedia is ridiculous, because what Harry Potter fan would pick the Lexicon book over the Scottish book? But then on the other hand, a Lexicon book is TOTALLY USELESS anyway because you can pretty much have the book for free on the website.
I think both arguments are rather silly. But, I guess I side with Jo on this one. As much as I love the Lexicon, just give it up Steve. The world just doesn’t need a lexicon book.
Isn’t it interesting that SVA tries to claim copyright infringement for the HP Timeline and then apparently infringes on JKR’s copyrights with the contract to publish the Lexicon.
OK I don’t mean to play devil’s advocate here, I’m honestly curious and I hope someone can help me out. This has been a fabulous discussion of comments so far, and I haven’t read every single one, so I apologize if this has been (specifically) addressed previously. Steve has mentioned that he has done extensive lexicons and encyclopedias on other subjects before, such as Star Trek and Hogan’s Heroes. He published a Star Trek lexicon and has sold all the copies made. What’s to keep the estate of Gene Roddenberry (sp) or the producers of Hogan’s Heroes from taking legal action in those cases? Or is there a difference between television and the written word? Thanks, sorry for the dumb question!
Morton K., thanks for weighing in with your thoughts on Johnson’s cryptic “logic of definition or etymology” comment!
Of course I realize that the suit is targeting the book and not the website. And I think they have very good justification for doing so. I just disagree with the complaint’s tacit implication that the NON-creative NON-original parts of the website (i.e., the parts of the website were dumped into the book) have no value to Potter fans other than “entertainment.” Frankly, I have little use for the Lexicon’s original, creative content - the essays and fan art and whatnot. The parts of the Lexicon I find most valuable are exactly the parts that got dumped into the book; and I use them as a reference tool, not as a derivative source of entertainment. As others have mentioned, reading through the Lexicon from start to finish is pretty dull-almost like reading a dictionary.
Sorry, comments are closed for this article.
Leaky Poll
Moving the HBP film to July 2009 is:
- Completely unforgivable34 (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%)
My real worry in this case is that it will come up with a legal definition of scholarly work
—something that might effect any of you who decide to go to [post]graduate school. For at least a century, creating concordances has been considered scholarly. A concordance is simple a list of all the words in a book or series, such as Shakespeare or the bible, in alphabetical order -- no definitions, plot summaries, just a list. Before computers this was hard, hard work. It was a tool for other scholars, and it was highly valued. Whether SVA/RDR should win this case in terms of their underhandedness is not my point: if Jo Rowling, who is not a scholar, and her lawyers who are also not scholars, and this chap from Exeter College who is clearly not much of an historian of scholarship, are allowed to determine what is valuable in terms of scholarly work, the world has gone to hell in a jell-propelled handcart.