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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Don’t know why part of my post got crossed out above. Sorry ‘bout that.
@ Claire
This isn’t even going to just be remebered by the HP fandom. This is going to set a precident for anything like this in the future in any fandom. Which is why I pray that SVA loses. I love Fandom I don’t want it to be frowned upon or feared by writers or movie makers,(I know there are several People that look down on it) that if they create something that becomes successful that people are going to try and profit off their ideas.
I personally don’t see where he has any room to say that he is in the complete right to make a book version of his site. The only reason that fandom is even tolorated by people like JKR and George Lucas and others that have a large fan base is because we give credit to them and that we don’t profit off what we’re making. Fandom is suppose to be all in good fun. Him thinking that he could make a book from this website is like me thinking I could have my fanfiction published. (and atleast fanfiction is more creative then gathering information from the books and putting them in ABC order)
Wow, SVA wrote the Star Trek Lexicon? I think I have a copy of that somewhere. Did it have hard plastic covers and foldout pages with floorplans of the Enterprise? If it’s the one I remember there was TONS of original material in it. It wasn’t just summaries of all the episodes. I mean there was stuff about Star Fleet Academy, etc. that made the world seem very “real,” at least to this dumb kid. I would think that was more than enough to count as fair use. Now I need to see if I can find it…
Averyfan, here’s a link from the GVSU forum he spoke at in early December that shows what his Star Trek Lexicon looks like: http://www.youtube.com/watch?v=ha_X9v1BEWo
Averyfan – that’s interesting, but it’s the HP lexicon on trial here, not the Star Trek one.
Um, why is everyone saying that Steve must’ve misunderstood the contract and not examined it properly, and that this is somehow not his fault but the publisher’s fault and Steve just made an innocent mistake?
It says, perfectly clearly, in this news post, that the contract says that RDR takes full responsibility for copyright infringement claims. Why would RDR shoot themselves in the foot? If Steve wasn’t even going to read the contract, they would make HIM the scapegoat, not take responsibility themselves.
The contract shields Steve from repercussions, so he would have no reason NOT to agree to it, I'm 99.9% certain that this clause was his idea.
I am sitting in a room with every book ever published about Star Trek, its shows, spinoffs, characters, by the actors, about the actors, etc. I went through all the encyclopedias, compendiums, concordiums and guides, about 60 books and found nothing by SVA. (my husband has been obsessive about it since child hood and we have started a second room for them)
Then Ally posted the youtube link-thank you. He made all of 40 copies of that Star Trek book, mainly for himself & the fanbase in his local area. If he had just went and printed up 40 copies of his HP dictionary (sounds more like that than an encyclopedia), he would not be in this controversy. Instead he and the publisher wanted to go national and international.
It sounds like it stems from bitterness (not getting hired to help JKR) and greed (why keep the Floo network from getting any profit from promoting the book).
I don’t believe he went into getting this published blindly, not knowing about copyrights and fair use. He is a librarian and has surely learned of such things. The librarians in our local library will not hit the copy button on the copiers if you are having trouble because of those pesky copyright laws. Seems if you are copying a page or two for personal use it is OK.
So Steve has published previous lexicons. Interesting. Ally, thanks for that link. Thats a good capture of his personality and way of thinking. He certainly does love his work and is fairly good at presentations talks. I dont see a naive person but a calculated and driven one, a determined character who may want to reap reward for his hard work. Looking at his personality in that video, I find it a little hard to believe he is an innocent victim of RDR. Of course judging one’s personality is soo open to favaourable or unfavourable perceptions! But that is my perception. I await RDR’s presentation to see the other side of the coin.
Steve talks about his Star Trek: TNG encyclopedia on the Lexicon website. I doesn’t sound like he printed only 40 copies. He talks of having a publisher, a cover artist and of taking it to a Trek convention to sell. Is there more to the story than that? Maybe Steve is having deja vu all over again.
I think SVA has a serious case of illiusion of grandeur. Yes he has compiled a lot of information from the homepage. Yes he has typed them up and made them into a book. Wow.. great work for a homepage. But what I dont understand is that JKR has for so long expressed her intention to write an encyclopedia and SVA thinks that I would even be remotely tempted to buy a book that I can read online and that will so miss all the extra detail and attention that JKR obviously can put in to her version.
No SVA even if you dont loose (oh and I think you will) in court then you have lost in my book.. where you before all this was a person that held a deal of my respect for your knowledge now I just think you are sad and pathetic.
Britannia, I think he’s just phrasing things in a way to make himself look better. I suspect that the “publisher” and “cover artist” are his friends who printed the books and designed a cover… and selling stuff at conventions is not particularly professional (and I seriously doubt he could sell hundreds of such books at a con, given the sheer number of authorized and unauthorized Star Trek lexicons and reference books that fans probably already have).
Menara, The problem is that while most hardcore fans would probably buy JKR’s lexicon, even if they buy SVA’s first, not all people who would buy this book are hardcore fans. Many casual fans or readers would be satisfied with any lexicon and wouldn’t buy another one. Hell, there are even more people who don’t know the fandom, and don’t see any difference between one HP encyclopaedia and another. Imagine a kid with no income on her own asking for JKR’s lexicon, only to have her mother tell her that she won’t buy it because the kid already has one. There are a great many people like that.
Reading the news and the comments … all I can say is that Rita Skeeter would have a ball with all of this!
There’s another video from the forum captured by my oldest sister found in the Lexicon Steve thread. sdcurtis reposted it in the new incarnation of the lawsuit thread. The whole forum was kind of amusing when we weren’t being told how much of a hardcore fan SVA is. He also had two versions of the presentation as well, and the one in my video is the muggle version. I’m guessing the fan version had things like expeliepilogus.
To Diana Patterson (Jan. 17, 9:31), re: concern that considering concordances not to be “scholarly” will negatively effect anyone going to graduate school: as a graduate of graduate school, making a list is not in and of itself scholarly. Scholarly work involves synthesis of ideas. No respectable school will give you a diploma for making a list. Making a list and analyzing it, discussing it, drawing conclusions from it will get you a degree. It is amply clear from the documents filed in court that the Lexicon book is just a list. It frustrates me to hear scholarship held to such a low standard (a list!) in the cause of defending SVA, who’s clearly not been on the up-and-up since the Lexicon book enterprise began.
To another point…it seems clear that in the case of copyright that the choice of when to defend against infringement and when to let questionable material slip by is entirely up to the rights owners. Whether every instance of infringement or possible infringement is pursued or not doesn’t affect the owner’s rights when the owner does decide to sue. So to questions like the one fab4mom posed (Jan 17 12:47), sometimes people like Roddenberry don’t squash fan works by choice. They’re small, they’re marginally commercial or non-commercial in nature, they are not harmful or minimally harmful, so it’s best/easiest to leave them alone. Vander Ark’s Star Trek encyclopedia was an early effort (it was only of the first season), no one knew it would become a mega-hit and spawn official encyclopedias. So it’s different from the Lexicon book in that sense. As another person said “under the radar” makes a big difference.
Book sales: I can imagine non-HP fan people, especially parents and other relatives, buying the Lexicon book for the HP fan in their lives. And I can imagine this conversation: “I want the Scottish Book, Mom!” “I already bought you that other book about Harry Potter.” “But this is a different book!” “No, I’ll get you something different. Save your money.” I’m sure that’s not Rowling’s biggest concern, but it the argument that the Lexico might cut into sales of Rowling’s isn’t bogus.
@Valerie - I hope SVA/RDR loses, too, for the reasons you mention. I know that Lois McMaster Bujold (one of my favorite authors - pick her up if you’ve never read her) has stated publicly that she won’t read any fan fiction based on her universe or go to certain websites based on her universe because she doesn’t want to be accused of plagerism (spelling?) if she were to produce a story that was similar to a piece of fan fiction. She says she’s getting older and can’t afford lawsuits, and needs every penny from her writing.
Bujold loves her fans, and is accessible to them in various ways, but you can see a little bit of holding back so as to protect her copywrite. Just think how much more careful JKR has to be of her brand, as her brand is worth more in terms of money and reputation (although they’re both wonderful writers who have created fascinating universes - hint, hint - read Bujold if you’ve never done so!).
As another poster pointed out, SVA wasn’t forced to create the Lexicon. Just because he put many many hours of work into it doesn’t mean he gets to profit off of JKR’s universe. Intellectual property rights have to be protected, or what’s the incentive for authors to try to publish their work?
On a lighter note- when all this is over, JKR/WB could always publish the injunction.
No, really! They could call it ‘Harry Potter and the Order of the Court’.
Badabum!
Thanks, Melissa, and Leaky for this great summary! I can’t even imagine reading through all this legal mumbo jumbo. Thanks for keeping us all in the know—I appreciate it!
For those who are saying JKR is being greedy and is already rich, please stop. It doesn’t matter how much money she has or how much she stands to gain on any further publications. In fact, take that bit of faulty premise out of the equation entirely. Just because one is rich does not mean everyone has the right to rob her.
Anise Thank you! your right, just because JKR made something of her self does not mean any one has a right to piggy back off her and her work. She built HP from a whim on up, she deserves respect.
Sorry, comments are closed for this article.
Leaky Poll
Moving the HBP film to July 2009 is:
- Completely unforgivable83 (39%)
- Annoying, but I'll get over it81 (38%)
- Not something I care about.9 (4%)
- Cool; who wants to go to the movies in the winter anyway?5 (2%)
- Awesome! I get to save $10 until next year.14 (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%)
Part of my understands what might have been SVA’s motivation—he has spent years of his life on the Lexicon with no compensation except for personal satisfaction, and I suspect RDR mislead him about the legality of it all. SVA is at a certain age when you start thinking about socking something away for your old age (I’m about the same age).
But SVA didn’t create it ALL himself
- other people have contributed to the Lexicon. Years ago I submitted one tiny factoid under the furnunculus curse (to produce boils) about my speculation that the name of the curse was related to the word “furuncle” which means a skin boil. I submitted it because I thought other fans might find it interesting. If I thought someone would take that, and all the other contributions, and try to sell them in violation of JKR’s copywrite, well, I never would have sent in the entry. And I certainly haven’t heard from RDR about throwing me -or any other contributor—a few coins for our trouble. (I wouldn’t take it if they did, but you get the idea.)This whole thing is so sad. I admired the Lexicon and its creators, and looked forward to “Canon Conundrums” on the Pottercasts. When the truth is all out, SVA is going to look bad, whether venal bad or deluded bad, who can say?
All those years of building up goodwill and admiration from his fellow potterheads, and now it’s all gone. I’ve been involved with other fandoms besides Potter (Star Trek, B5, etc.). Fans NEVER forget a slight against the creators of their favorite universes. I feel very bad about all this.