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Lexicon Update; Schedule Moved, RDR Request for JK Rowling's Notes Denied (Updated)
Companion BooksAn update containing JKR/WB’s response to RDR’s requests for information is at the second half of this post.
A few things of note today in the case by JKR/WB against RDR Books and those who wish to publish a print version of the Harry Potter Lexicon:
Firstly, the schedule has been moved again. RDR requested and received an extension to file their reply to the complaint. It was scheduled to be due on Feb. 5; it is now due Feb. 8. JKR/WB will reply by Feb. 27. There will be a hearing on the matter in New York on March 13.
Secondly, a judge has denied RDR’s request for copies of the notes that would comprise J.K. Rowling’s encyclopedia, but granted that JKR/WB submit statements J.K. Rowling has made in “publications” regarding her plans for her encyclopedia.
The letter, which you can download here in parts one, two, three and four (or view online here), is from David Hammer, lawyer for RDR, and says that the notes are requested in order to “test the merits” of J.K. Rowling’s claims that she is going to write an encyclopedia and that part of the reason for suppressing the HPL would be to suppress potential competition. RDR asked for “copies of any prepatory materials that Ms. Rowling has drafted or authorized to be drafted, including notes, outlines, drafts, marketing proposals, etc.”
JKR/WB indicated to RDR that they would resist the request, and so RDR asked the judge to convene a discovery conference, which occurred on Nov. 30. At the conference RDR argued, according to this letter, that the notes would determine “how far Ms. Rowling had progressed in this project…how similar, and thus how competitive, Ms. Rowling’s guide, and the Lexicon, were likely to be.” At the time, the letter says, the judge “expressly stated that defendant was entitled to anything that Ms. Rowling had so far composed or authorized.”
When RDR made the request for the papers, a lawyer for Ms. Rowling responded that:
“Ms. Rowling has made notes relating to each of the seven Harry Potter books which she will use in writing her long-planned Harry Potter companion guide. In addition, Scholastic’s Harry Potter continuity editor, Cheryl Klein, among others, has indexed the characters, places, creatures, spells and other things from the Harry Potter world which Ms. Rowling created. Ms. Rowling’s U.K. publisher, Bloomsbury, has similarly copiled four huge volumes of material constituting a comprehensive ‘bible’ of the Harry Potter world. Ms. Rowling believes the information from Scholastic and Bloomsbury to be more detailed and accurate than any other outside source (other than herself) regarding the Harry Potter series, including the Lexicon Website. Ms. Rowling would be free to draw on the materials from either of her two publishers should she choose to do so. The process of turning her existing notes into the definitive encyclolpedic Harry Potter companion guide is ongoing and is being continually augmented with the addition of further material from her creativemind on a regular basis.”
The letter states that RDR submitted a request for the materials in that response, and that JKR/WB provided nothing. (However, large portions of the Harry Potter ‘bible’ mentioned are freely available in the public court documents filed on January 16.)
The letter also states that JKR/WB responded that RDR’s request was “irrelevant and not calculated to lead to the discovery of admissible evidence as the status of Ms. Rowling’s planned companion guide is irrelevant to the determination of whether Defendant has infringed Plaintiff’s copyrights in the existing Harry Potter works at issue.”
RDR says, “If plaintiffs no longer assert that the Lexicon must be suppressed to protect Ms. Rowling’s right to publish a future companion guide, they should make a clear and explicit statement to that effect. Absent such a statement, Ms. Rowling’s notes are highly relevant to this case.”
The letter asks for: 1. The notes that JKR has made on the seven novels 2. Cheryl Klein’s full index 3. Bloomsbury’s ‘comprehensive bible’ 4. The ‘further material from Ms. Rowling’s creative mind.’
The letter also notes that JKR/WB cited confidentiality concerns and stated they are willing to abide by any ‘lawyers only’ restriction to the review of materials, except for one expert witness.
The note from the judge at the bottom of the letter requires JKR/WB to provide RDR with statements contained in publications listed by JKR/WB in a response to one of RDR’s claims, but denies the rest, saying that RDR has “not shown the Court that any further discovery about Ms. Rowling’s notes would be helpful to Defendant’s position.”
You can read the full breakdown of the complaint filed by JKR/WB here and here. We will provide more information as it becomes available.
UPDATE
We’ve now reviewed the JKR/WB response to RDR’s requests (which also includes the text of those requests), which was sent as a letter to Judge Patterson, the NY judge overseeing the case. This is a 21 page document that says:
1. JKR/WB object to what it sees as RDR’s “pattern of writing the Court whenever it wishes without first making any effort to meet and confer, lte alone giving sufficient advance notice of its intended communication with the Court.”
2. The lawyers on the JKR/WB side called the attempt to access the “top secret, personal, proprietary notes” as “extremely burdensome and unnecessary for the resolution of any issue in this case, particularly in light of Ms. Rowling’s interrogatory responses and the documents that Plaintiffs produced in support of theirm otion for preliminary injunctin.”
3. At the Nov. 30 hearing RDR said it required “expedited discovery” to determine the ‘palpability’ of JKR’s planned encyclopedia, and that the court said RDR could serve interrogatories (which are requests for information) as well as seek discovery on any manuscript. That manuscript would be subject of review inside the judge’s chambers (not handed over). (The Court, according to this letter, did not originally grant full right to JKR’s notes at the Nov. 30 meeting, just gave RDR the right to request it – and presumably prove why they are necessary.)
4. JKR/WB responded to those requests for info by saying there was no manuscript of outline but that JKR had notes, and her publishers had indexes. After this response RDR requested “All COMMUNICATIONS and DOCUMENTS REFERRING OR RELATING TO” [caps in document] JKR’s notes as well as any further material. JKR/WB’s side say they far exceed the scope of discovery that RDR indicated it would require on Nov. 30, and says that they thought the documents from Scholastic and Bloomsbury filed with the motion for injunction would suffice to fulfill RDR’s request.
5. The note calls JKR’s notes and publishers’ materials “completely irrelevant” to the question of whether the Lexicon book infringes copyright. “Obviously, needing to concede copying, RDR’s defense to such copying is based on fair use. It is in connection with RDR’s fair use defense that Plaintiffs have addressed the issue of potential market harm. ... Whether or not the books would be similar or identical and therefore directly competing is not the correct inquiry; it is rather whether or not Ms. Rowling would generally enter the market for companion books, which she already has done with her first two companion guides and has repeatedly stated she will continue to do with her planned encyclopedia to the world of Harry Potter.”
6. Even were the notes relevant, the letter says, JKR/WB is not saying that JKR’s notes are similar to the Lexicon book but that Scholastic and Bloomsbury’s guides that JKR may draw on are similar to the Lexicon book.
7. JKR’s “overwhelmingly sensitive” notes would serve “no legitimate purpose othre htan to harass Ms. Rowling. Rather, the burden of producing these notes far outweighs any benefit to RDR in obtaining them.”
The exhibit attached is an objection to RDR’s requests for then notes, saying that the requests:
-Seek information that is protected by attorney-client privilege, work-prouct doctrine, right to privacy and “any other applicable legal, statutory or constitutional privilege.” -Seek the disclosure of confidential, proprietary or trade secret informatoin -Seek information that RDR may otherwise obtain from public sources (ie, whehter JKR plans to write a companion book or not, not the content of her notes)
It also notes the objections don’t constitute acknowledgment of the relevance, importance or admissibility of any issue discussed.
The first request from RDR (No. 1) was for: outlines, proposals, manuscripts, marketing plans, lettres of intent or contracts that JKR has drafted, authorized to be draftd, or received from any of hre employees or agents concerning the encyclopedia. RDR asked that JKR/WB describe each document’s contents in detail, identify when it was composed and where it is presently located, and who holds it. JKR/WB responded that the request was vague and ambiguous, overbroad and unduly burdensome, because it does not seek a response toa question and is supopsed to be part of an expedited discovery process, which “generally only allows for very limited discovery demands.” It is apparently also very different than what was asked for on Nov. 30.
The second request from RDR (No. 2) was for JKR/WB to identify and describe all communications about the encyclopedia involving JKR or “any person that [she] has authorized to act on her behalf, and ay other person,” and to describe the content, idenfity when the communication took place, and identify the parties involved for each communication. JKR/WB’s response was the same as for No. 1, generally – claiming it is burdensome and overbroad, and not relevant, and such information subject to many restrictions, including lawyer-client privilege. It also notes that JKR has told reps from hre literary agency from as early as 2000, of her plans to write such an encyclopedia, and her agency has acted on her behalf to many other parties since 2001 – including pubilshers – though no contracts have been drawn. It also says she has made many public statements to that effect.
RDR, this exhibit reveals, also attached to its requests for information a press report from MTV News that says JK Rowling has not yet started her encyclopedia,and will take a break from writing before she does. RDR requested that JKR/WB state whether that is true, and describe any further public statements – as well as identify by name, address, phone number and affiliation the reporters who were present at that press conference, as well as a transcript of the press conference. JKR/WB responded with similar complaints to No. 1 and No. 2, and says that the quote is not inaccurate in that JKR had not yet, at the time of that conference, started to turn her notes into a manuscript, but she is “augmenting her existing notes.” She took a break after her tour, but “nevertheless penned some additional materials that are intended for inclusion in her Harry Potter companion guide.” The document then lists instances of 88 press reports of her statements on the encyclopedia ranging back to 2001, and mentions television interviews as well as Leaky’s PotterCast interview and several other web site postings that dealt with the possibility of her publishing an encyclopedia. This is the portion of RDR’s requests for info that the judge granted – that JKR/WB describe these statements, most or all of which are public record.
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Thanks Karen_W.
I wanted to buy a t-shirt that said “Make love not horcruxes” on this persons shop, so would that be legal to buy?
Just checking back in with an answer to my own question about fair use and permission.
Fair use, which is uniquely US usage of the doctrine/ term in law, allows for the use of copyrighted material WITHOUT permission, but only for certain usage. In Canada, there are similar concepts, as in other countries.
According to the US Copyright Office, there is following:
” One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. "Basically, this all means that JKR’s material an be used, without permission, for certain purposes, and that it is extremely complex as to what may or may not be considered fair use, and that it usually DOES rest in a Judge’s hands as to what any outcome might be.
M.
Oh, and BTW, the Copyright Cffice information goes on to say the following:
” The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney. “
There ya go!
Karen_W, you did yourself a favor avoiding law school! LOL. I kind of regret going myself. Though IP always fascinated me.
:) Madeleine
Thanks Melissa. The fact that you know your responsibility is what matters. I can understand that you don’t want to comment on this. May be even I wouldn’t if I was in your place.
And yes you are providing great content, I really appreciate it. So, way to go!
P.S: I know it’s too late, but sad that it didn’t workout for you and Emerson ;-)
I just re-read my long post, and realize I need to make on clarification.
When I said the Judge allowed the material being sought because it was already public, I was referring to the part of the request for whatever satements had been publicly made by JKR regarding her intent to produce the Scottish Book. No other material, as far as I can tell, was ordered to be provided.
And again, the reason that part f the request was granted was BECAUSE the material was already in the public domain and could be gathered by anybody.
M.
My concern is that this whole thing will drag out and leave such a bad taste in Jo’s mouth over the whole thing that she might never complete the encyclopedia. If, every time she starts working on the Scottish Book, she rehashes this whole episode in her mind, I could see her not really WANTING to work on it. This really needs to be settled, quickly and in Jo’s favor.
If Steve Van Ark has decided that he doesn’t want to compile Harry Potter info just for the love of the literature, then he should simply shut down the Lexicon rather than try to make a profit off of Jo’s work.
The rage this ignites in me is like little i have ever endured. I hope these people pay for the awful things they have done, they truly are the dregs of humanity
Excerpt from SVA’s letter:
“However, if Rowling manages to extend her reach that far into our subculture, she will choke us off very quickly.”
All those awards she gave to the fansites must have actually been part of her diabolical plan to have them shut down. Genius!
Melissa, it’s working now! I just skimmed rather quickly.
I agree with all of you. As this goes on, I begin to feel less and less sympathetic towards RDR and more for JKR. How much nerve can they have- she has three children, a highly demanding job, and deserves time for herself and her family. Of COURSE it is a burden to make up all of those notes! She will pretty much be writing the encyclopedia. The proposal made by RDR are just ridiculous and rather heartbreaking for me. Steve has pretty much slapped Jo in the face with all of this. I really don’t know what to say but…..I am so sorry that this is all happening. Jo does not deserve this.
And they are workers on Lexicon who had nothing to do with this, but have to deal with the brunt of all the backlash from us fans! It’s as though we’re grouping them all together. Steve and maybe a select few are responsible for all of this, so maybe we can give Lexicon the benefit of the doubt? There are probably some fans who work on Lexicon who want nothing to do with this, you know?
I just feel so bad. There is nothing else really to say. I just hope that Jo wins and gets a HUGE apology from Steve. I wonder who is getting next year’s fansite award, lol? I’m just hoping that this all goes awaty quickly and doesn’t leave any more damage that it already has.
Again, thank you leaky for being the best fansite everrrrr fangirl squee. I am so proud that Leaky has always had the grace and dignity to never….well….mess with Jo. I think that Melissa, John, Sue, and staff are handling this situation in their news very diplomatically and gracefully, given the cirumstances.
Misdirection, underhanded legal tactics, and ploys to draw the whole messy business out as long as possible… WHY weren’t RDR’s motions thrown out the instant they were brought up? I’m losing faith in our legal system the longer this is allowed to continue. SVA & RDR will be paying JKR a LOT of money for their harrassment of her… And I’m sure she’ll turn around and donate it all to a worthy charity : ) My thoughts and prayers are with her now, and I’m quite irritated that she’s forced to contend with this when she could be working on the Scottish Book.
p.s. Good, informative post but knida hrad to raed wtih so mnay tpyos…
Seeing as it is now the 8th, any idea on when we will hear the reply to the complaint that is suposed to be filed by RDR Books? would we have to wait till monday for it to appear on justia so it can properly be revied and formated or is it typically same day?
Honestly, RDR Books is making themselves look like a bumbling bunch of idiots running around with no real direction. honestly, what kind of publisher does not have a on call copyright lawyer or a basic understanding of copyright, intellectual property, and fair use laws?
given that a great deal of the books published by RDR books are written by the guy who started the publishing house, clearly, it was started because no other publishers would touch his works, which if you ever try reading, are really poorly written and edited.
I support Jo and her crew all the way. She’s the one who created this great world that we could all explore in, and she’s the only one who has the right to publish anything with the name “Harry Potter” on it. Thanks Jo, and keep on fighting.
and come on… think about it… if this book is ever published, not that it will, no true fan of Jo’s is going to buy it
NotTheHBP: there is an endorsed letter on the justia.com site http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/45/ allowing RDR to file in hard copy, which probably means a delay before they are available electronically (if at all). On the other hand Melissa seems to be able to beat justia.com so we might hear sooner rather than later depending on Melissa’s sources.
Fish you are so intelligent. one question: how can JKR have an inflated sense of ownership? It’s HER BOOK!
I’m sure it is an enormous burden for JKR – but really, she and WB brought it on themselves. Lexicon book could have been published to lackluster sales last November and end of story.
yes dear. its her book. her characters. her world (excepting the fact that england is…well…england.)
but let me ask all you rabid little potterites this….are the thoughts in YOUR head on HER books hers? of course not. unless you wanted to make a spot of cash from those thoughts. then she gets a say….right?
WRONG.
“she made up the characters, she made up the world, she blah blah blah whine whine whine…”
i have read quite literally MILLIONS of books. i dont count, but i average at least one a day, going all the way up to three if im having a nervous breakdown and cant sleep. ive been reading like that since i was in 2nd grade. and while JKR is decent, she is hardly the first to come up with any of it. NONE. its all derivative. everything is, actually, which is why we have GENRES. individual groupings of stratas based on their tone and what they derive from. kind of like food groups. JKR is a nice solid PB&J….and i’ll be the first to admit that sometimes a good PB&J is EXACTLY what one wants and needs. not to heavy, yet filling…sweet, but healthy enough to lack any major guilt. wizard schools, guilds, spells, teachers,methods….give me any random bit and ill give you a corresponding random bit that precedes it. now….nothing wrong with that in the slightest.
plenty of food to go round, you know?
BUT….just because she wrote a decent PB&J does not give her rights over all other combinations of peanut butter, bread, and jelly, descriptions of such (including her own) lists of such, opinions of such, etc. even if she IS planning on writing her own encyclopedia….its just that….hers. if RDR stole her notes on such, and tried to publish….if they had access to non published material JKR has in her head, that would be a different story. RDR’s/SVA’s book is just that….THEIRS. the fact that its all about JKR’S books is legal. if he was to write a NEW book with her characters, THAT would NOT.
the song about the song, as the say, is not the song itself.
now, stop puckering up and making kissy noises at the thought of JKR’s o so rosy you-know-what, and get a grip.
If RDR wins I think someone should start a boycott, I know I will be boycotting it and waiting for jks.
Sorry, comments are closed for this article.
Leaky Poll
When do you think the trailer will be released?
- In front of "Get Smart"2104 (11%)
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This really is great, though. Melissa is an objective journalist to the core. We have budding lawyers and satirists jumping in. I really should have gone to law school, and this all just fascinates me. I guess it’s never too late, eh?
That is one thing I have always loved about the Harry Potter fandom. We question news stories and the validity of opinions. We question right and wrong, moral and immoral. I’m on Jo’s side, but the debate is great and gets all of us researching and thinking.
Karen_W