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 really dont believe that WB and Jo are fighting this for the money, law is about precedent. By allowing HPL to be published they would set a precedent that would strongly restrict the ability to protect much of the copyright in future maybe more hostile situations.
Uggh…I thought it was more the publisher but now it seems to be just as much from SVA…I really hope this turns out well….
I’m baffled that some people can believe that Steve Vander Ark deserves to make a profit because he ‘worked really hard’ on the Lexicon.
It takes a lot of time, planning, and effort to successfully stage a bank heist, as well. That doesn’t mean that anyone who manages to accomplish such a feat deserves the money he gets from it. The comparison may seem extreme or unfair, but I don’t think it is. Any money that Steve Vander Ark would make from the sale of the Lexicon book is not his to legitimately have, regardless of how hard he worked to get it. It isn’t a question of who has what money. A penny, a pound, a million dollars, it does not matter: he would have no legitimate claim on it.
No one creates fan sites, or fan art, or fan fiction, because they expect to make a profit. No one made Steve Vander Ark work on the Lexicon. He chose to, of his own volition. I’m sure it took a great deal of time, effort, and dedication, but he provided it knowing that he would be doing so for free. This was his choice. He doesn’t deserve money for doing something no one required him to do. I, personally, spend an inordinate amount of time surfing the internet, which eats into the time I could be using to do something else. This is my choice. I don’t expect anyone to compensate me for it, when I could just as easily be doing something else. Steve Vander Ark could just as easily have chosen to do something with his time that could have lead to a profit. He didn’t.
If you work very hard for the company that employs you, that is commendable, but it does not mean that you own the company. If you work very hard for the Harry Potter community, that is commendable, but it does not mean that you own Harry Potter.
Just to throw in again that we really should not be talking about either SVA or JKR, but rather about their attornies…I think that is the point that James K was trying to make as well. What we will hear next will be from RDR’s legal representatives…
When is the deadline for RDR’s defence submission? And will Melissa regain her breath after today’s marathon to start her press-ups for the next round? We shall see
To the posters claiming they would love to have a copy of the Lexicon Book – you do realise it doesn’t contain any information from Deathly Hallows and Jo’s recent interviews? Judging from the website, it’s not even HBP-compliant.
Is it me or is SVR site gone?
Posted by Magic What? on January 17, 2008 @ 02:45 PM
I just checked and it’s still there.
Does anyone else actually think that the Lexicon is really that great cause I don’t. The effort put into this site is far superior.
Professor Potter: The current schedule is that RDR have to respond by 5th February, WB/JKR can respond to the response by 15th Feb, and the matter goes to court on 28th Feb.
Rach said “Does anyone else actually think that the Lexicon is really that great cause I don’t.”
I wouldn’t say it’s the greatest, but I will admit I’ve found it handy. I use it most often when I’m at work (and therefore, naturally, do not have my books with me) and me and coworkers are having one of our (many) Harry Potter discussions. So as you can imagine a ‘print edition’ (not that I would ever buy it since I feel what SVA is doing is wrong) would be of no use to me.
As for the situation, I’m one of those that’s been on WB’s/JK’s side from the beginning, especially with those ‘smoking gun’ emails of SVA’s being reported. I know it’s been said we should keep SVA and JK out of this since it’s more their lawyers and RDR books that are really in it, but clearly SVA knew and acknowledged that publishing a print version of the Lexicon was wrong and illegal. Something clearly changed between that email and now, from what’s visible, I agree with those that say it seems like SVA got rejected in terms of the job offer and almost said ‘screw you’. Now am I claiming that’s what happened for sure? Of course not, as has been pointed out we don’t have all pieces of the story. But the evidence that has been presented (and with some of that evidence coming straight from SVA) seems pretty damning to RDR books’.
I too am also confused by those still supporting the Lexicon in the sense that it should be published and still insist that if WB/JK win that it’ll be the end of the fandom, while I think it’s been pretty clear that RDR winning is what’s going to hurt the fandom (and not just of Harry Potter, I think) in general. Like many have said, RDR winning will result on a much harsher crackdown on fanwebsites (and that’s if fansites are allowed at all).
To those saying that the Lexicon will in no way compete with “The Scottish Book”, if the publication of the Lexicon results in just one person buying it and not buying the Scottish Book, that can be counted as a loss of profits for JK. True, hardcore Harry Potter fans are going to know the difference, but again (as has been stated, and I apologize for repeating), people who may not be the biggest fan of Harry Potter and are looking for a gift for their obsessed friend/daughter/son/sister/brother/niece/nephew/grandaughter/grandson/etc. may not recognize or be aware of the difference. And given the lack of disclaimer and the misleading quote from JK on the back would make it even more confusing.
I hope this made sense, and I apologize for rambling a bit, it’s been one of those days at work where my brain never actually turned on this morning. After just reading what Leaky has posted, I’m fairly confident that RDR is going to be royally hosed by the end of this.
Even on the Lexicon SVA has ALWAYS said
“Please take note of the following. None of us is JK Rowling or has any connection with her in any way, shape, or form. We don’t know how to contact her, so don’t bother asking. We do know that Jo visits the Lexicon on occasion to look up a fact, which delights us more than we can even express. However, we can’t get messages to her or pass along your emails. We are not associated with Warner Bros. or Scholastic or Bloomsbury or any of the other official Potter entities. We’re just fans; that’s all.”
Why did he have to muck it up?He is already making $ from the fruit of his labours! I know for a fact he has traveled quite a bit and has been very well compensated for his lectures, more than any other Potterite I know .I was a huge fan of his until I saw him at Sectus in London last summer- I figured there was something up then, he ,well, lets just say reverting back to my high school days- acted like a “Sosh” you know the type, with the “I’m better than all of you ” attitude. Maybe it was a change in his personal life or because he was prepping the book. I will continue to attend all the HP Fan events but I will not go to see him- Besides he has said the same thing at the last 4 events.
This just makes Steve sound even more greedy. I feel strange, because he has always been such a big part of the fandom, but he and RDR are being idiots. I side completley with Jo.
Thank you thank you thank you a million times, Melissa! bows to the awesomness that is TLC webmistress
Looks like we won’t hear Steve’s voice on Pottercast all too soon again.
I must say I still am not sure what to think – but I confess I haven’t read much of the info by now.
MD on page 6 found a link to a far superior lexicon like site which is very Wikipedia in layout. It had a link for random fact and my first click was “the battle of hogwarths” which is an awesome entry. what’s good about this is that every key charcter or item is hyper linked. There is also JK Rowling excerpt links back to TLC!
There is so much conclusion-jumping here, it makes me feel ill. I strongly recommend that the people who have been automatically assuming the worst of SVA read some of his posts over at the Lexicon’s “What’s New” section, particularly the November 10, 2007 and the December 20, 2007 entries, and the comments to the 12/20 post.
Once lawyers are involved, part of their job is to make the other side look as bad as possible; to that effect, WB’s lawyers are doing their job. You don’t have to lie like Rita Skeeter to warp someone’s words against them.
We don’t know what Steve’s intentions were with Floo-related sales. Maybe he asked for a higher cut on those sales so he could share it around as advertising compensation, but never got to that stage of talking to the other webmasters about it – it’s been a busy year, in too many ways.
I commend Melissa on taking a neutral, wait-and-see approach.
My guess (and it is just a guess) is that Steve didn’t get word on the denial of permission from JKR until his book was in RGR’s hands, by which time his hands were contractually bound. A lot of people seem to be criticizing him for not defending himself, but I am sure that his silence is at the request of his lawyers. For now, I’m still willing to give him the benefit of the doubt, and I hope that it gets hammered out soon.
And, if it really counts, I don’t care one way or the other if Steve’s book gets published or not. I just wish people would stop the personal attacks, especially since none of us knows enough of the story to truly judge anyone involved. Let the courts work out what’s legal, and stop assuming that has anything to do with right & wrong, or that each side must be one or the other.
Thanks for the info, Roonwit. I guess RDR will use up all the time available to compile their defense and submit very close to the deadline.
Yes, I can’t see RDR submitting early, and it will probably be a day or two before we find out what is in the submission.
mbats,
The problem is that some of the information we have here, does not match what we have gotten from SVA in the posts you want us to read. And what we have here is written under penalty of perjury, so I trust it more that a post in the Whats New section of a web site. In the comments section in one of the posts he says “I contacted everyone I could think of in the spring and summer of 2007 and they wouldn’t make time to talk to me. ” But now we find out that Steve was in contact at this time with the The Christopher Little Agency requesting employment on the official encyclopedia. That was a back and forth E-mail conversation where someone did take the time to talk to him, so how hard would it be to for him ask the person about the lexicon book in addition to the job.
That does not even include the e-mail where SVA said 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 encyclopedia to her world.” And face it, the Lexicon is an encyclopedia. So what changed between then and last summer?
I want to see what the response from RDR books is going to be, but I am wondering what they could possible say in response to some of these points. But if they have good responses to these points, it will make it much more interesting.
Just my thoughts
soo sad this had to go so far. I love both Jay-Kay and Steve, but why did this have to happen? I mean, she gave him a blasted FSA!!! Now he just blatantly violates hers, and WB’s, copyrights of HP? What happened? I’m not trying to be mean to Steve, but really, he could have thought about the CONSEQUENCES before he tried to publish the ENTIRE lexicon! I just hope the injunction is allowed. I hope it teaches him a lesson! DON’T MESS WITH JAY-KAY!!!!!
I’ve been hoping to hear an answer to fab4mom’s interesting question. She states that SVA has also sold Star Trek and Hogan’s Heroes compendia without problem. I haven’t researched OR VERIFIED this, but one big difference in the Star Trek universe is that works of fiction not authored by Roddenberry have been out in paperback form forever, so apparently Roddenberry sold or permitted some rights that Jo has not. As for Hogan’s Heroes, that’s pretty special interest, and was probably under the radar.
I’ve tried to stay sympathetic to SVA and how he slid down this slippery slope, from working his * off on a nifty web site to trying to publish a clearly illegal book. Many people see him as the victim of RDR. But let’s face it; SVA is a big boy. He’s older than Jo. If he’s really this naive, he needs to get out more.
Sorry, comments are closed for this article.
Leaky Poll
When do you think the trailer will be released?
- In front of "Get Smart"2174 (11%)
- In front of "Batman"6100 (31%)
- In front of "Hancock"1054 (5%)
- In front of "Who cares, I'm just going to watch it online anyway"9555 (48%)
- I'll explain in the comments.659 (3%)
Hey Morten K. I was fairly sarcastic with my first post but now I owe you an apology. I see now how easy it is to get carried away ;)