JKR/WB vs. RDR Books Trial: Findings of Fact & Conclusions of Law (pt 2)Companion Books
Please see the prior post for Editor’s Notes. In addition, please also note that the JKR/WB document is considerably longer that the RDR Books document. In an effort to bring the summary down to a manageable length, on several occasions the reader is directed to the original document for additional reading. Further, note that this summary was written directly after the RDR Books summary, and that we did not re-state in places where text appeared to repeat information discussed in the RDR summary (such as in the summary of the Copyright Act). Please consider the summaries companion text and read them together.
PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
In the first section, the parties are described. The document goes on to describe the how the series came to be, noting “the manner in which the Harry Potter series came into being and the circumstances under which Ms. Rowling created the series have been well publicized.”. The section acknowledges her copyright of the series, and quotes her testimony of what the series means, “…setting aside my children, everything.”
Companion Guides and Other Harry Potter-related Properties are also described, including Fantastic Beasts and Where to Find Them, Quidditch Through the Ages, and The Daily Prophet newsletters. JKR’s copyrights are acknowledge, and an attachment provides the copyright information for the newletters.
“In addition to these two Companion Books, Ms. Rowling has repeatedly stated, since at least 1998, that she plans to publish a Harry Potter encyclopedia once the series was finished and similarly donate the proceeds to charity.”
The document notes that while the market for the companion books is not “nearly as large” as for the novels, they have raised over $30 million for the children’s charity Comic Relief. That JKR also wrote Tales of Beetle the Bard for charity is noted.
Ms. Rowling’s Planned Encyclopedia.
“Ms. Rowling intends for her encyclopedia to contain alphabetical entries for the various people, places and things from the Harry Potter novels. While she intends to add new material, her encyclopedia will contain “all information in the published [Harry Potter] books.”
The section entitled The Harry Potter Films and Related Merchandising describes the films and film-related copyrights held by WB. The licensing of certain rights to Electronic Arts is also noted, adding that “many of the wizards mentioned in the Famous Wizard Cards are not actually referenced” in the novels.
Copyright information for the Wizard Cards is attached.
Plaintiffs’ Intellectual Property Protection Strategies
The section covers steps JKR has taken, along with WB, to protect “the integrity of her intellectual property rights and that of her Harry Potter novels”, including care in granting licenses to third parties, and issuing “style guides” to ensure that licensed products are “of the highest possible quality”. It is noted that while there are many requests to license Harry Potter, they in fact deny many of them. In the case of companion guides, the Plaintiffs review the books to ensure that it does not suggest JKR or WB endorses the book and to ensure the book doesn’t infringe upon JKR’s copyrights. “When a book does raise concerns, Plaintiffs attempt to work with the publisher and author to find a non-infringing solution”.
Interest in Harry Potter Spawns Numerous Books and Websites
The document notes that the series has resulted in more than 90 books published in the U.S. alone; this section mentions several of those by name, including companion books. “Unlike the Lexicon, these Harry Potter companion guides analyze and interpret the Harry Potter books and describe the real-world underpinnings for many of Ms. Rowling’s creations. Rather than regurgitating Ms. Rowling’s text in vast quantity, these books only use brief portions of text as jumping off points for commentary or analysis related thereto”. It’s noted that the Plaintiffs have not taken legal action against any of these books.
The document discusses the widespread interest on the Internet that the series has created, noting:
“Plaintiffs allow these fan sites wide latitude in operating provided that these sites are free-to-fans and do not attempt to merchandise Harry Potter or interfere with Plaintiffs’ licensing program”, and that “Ms. Rowling is “keen to maintain an almost entirely hands-off approach to the online fandom where Harry Potter [is] concerned” with the exception of “obvious boundaries of decency that occasionally one would not like to see overstepped”.
JKR testified “”I saw it as a great global book club with a lot of enthusiasm. I met people who had made real life friendships through posting on Harry Potter message boards, which I thought was a wonderful thing. The fan sites, the fan created fan message boards and the essays and so on, they were all fun. I have never read online fan fiction. It is uncomfortable to see your world restated in that way. But, I never censored it or wanted to censor it.”
As a result of JKR’s views, the Plaintiffs do not typically attempt to prevent fan fiction, fan art, or Harry Potter rock bands (noting the term “wizard rock”), adding “Ms. Rowling has even recognized the various fan sites by giving “Fan Site Awards”.
The Harry Potter Lexicon Website
This section describes the Lexicon, noting that it is free to fans, that SVA maintains the site with the help of volunteers, and that visitors often “send in corrections and updates as well”. The document notes that the site as little advertising.
In 2004, JKR awarded the Lexicon website her “Fan Site Award”. In addition to other remarks, JKR said the Lexicon is “A website for the dangerously obsessive; my natural home”. JKR testified that the award was meant “as a kind of A for effort” and that she “never intended for this award to be taken as an authorization for them to create and sell an infringing Harry Potter book for profit…”.
Mr. Vander Ark’s Awareness of Ms. Rowling’s Plans
In this section it’s noted that SVA testified as to being aware of JKR’s intention to publish an encyclopedia upon completion of the seventh book. SVA also testified that he believed creating an encyclopedia from JKR’s work constituted copyright infringement. In a 2005 email, he said:
“Basically, it’s illegal to sell a book like 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 to her world…”.
The section also notes that in 2000, SVA stated on a public Internet newsgroup:
“[W]ithout her permission, I won’t publish [the Lexicon] in any form except online”.
The document presents an email to Scholastic Editor Cheryl Klein as proof that SVA actually viewed the Lexicon website as a means of deterring third parties from publishing an encyclopedia that competed with JKR’s planned encyclopedia:
“It might interest you to know that George Beahm commented that he had originally intended to write an encyclopedia of Harry Potter (which Jo has specifically reserved for herself, I understand), but seeing the Lexicon convinced him not to bother. I want you to know that one of the express purposes of the Lexicon is to dissuade people from that sort of thing, so I was happy to hear him saw that. The fact that he copies a lot of the material from his books directly from the Lexicon, however, still rankles.”
According to the document, SVA tried to “back away” from these statements by saying his view of copyright was “just his layman’s impression”. In testimony, however, SVA noted library training and experience with copyright issues, and that he had read “ridiculously large numbers of related books, articles, etc., and even [went] to the occasional conference on the subject of copyright”.
Mr. Vander Ark Seeks a Meeting with Ms. Rowling’s Literary Agent
In mid-2007, SVA contacted JKR’s representatives at the Christopher Little Literary Agency to request a meeting. Due to the nearness of the seventh book’s release, CLLA responded they would be happy to answer any questions via email. SVA responded that he had planned to move to London and was looking for a job, stating “if she is thinking of working on an encyclopedia, I would be a good candidate for work as an editor, given my work on the Lexicon”. CLLA responded that JKR worked along.
Development of the Lexicon Book
This section covers RDR’s discovery of the Lexicon and his initial contact with SVA, stating that prior to meeting SVA, RDR was “already working to secure foreign publishers for the proposed Lexicon project”.
The document notes that SVA testified that he expressed concerns regarding the legality of such a book, and that no testimony nor evidence was given to support that RDR sought opinion or counsel regarding the legality. That RDR and SVA “clearly contemplated” that the Plaintiffs might sue for copyright infringement is argued by the contract between the two, in which SVA asked to be indemnified from any claims of infringement. JKR/WB claims this is “atypical in publishing contracts”.
Marketing the Lexicon Book RDR and SVA planned to put the book to market by late October 2007. The document claims that RDR and SVA expected the book to do well, as the contract includes a bonus for SVA for every week the book was on the New York Times Best Seller list. Although SVA testified that he “meant it as a joke”, JKR/WB argue that “evidence demonstrates otherwise”.
RDR marketed the book to foreign publishers and to U.S. bookstores and sellers as “the definitive Harry Potter encyclopedia”. To one British publisher, RDR stated in an email that “J.K. Rowling has said again and again that the people behind this book are her absolute favorites when it comes to a Harry Potter reference book”. It is noted that in testimony, RDR “concedes” that JKR never used “those exact words” and did not say anything about SVA being her “favorite” when it comes to a “reference book”.
SVA testified that there are three other authors of the Lexicon manuscript.
The document states that RDR expected the Lexicon book to be placed next to the novels in bookstores, and that he intended the book to sell for $24.95 in the U.S. RDR used JKR’s statements about the website with regard to her fan site award in marketing the book. As a result of marketing efforts, RDR secured oral contracts for rights to the Lexicon book with publishers in several countries and with Borders Bookstore in the U.S.. According to this document, RDR initially testified that there was never a firm order with Borders, later testifying that the order from Borders was cancelled due to the lawsuit.
Plaintiffs Learn of Defendant’s Plans
JKR’s literary agent Neil Blair first learned of the Lexicon book when he saw it advertised on PublishersMarketplace.com, which “made it clear that the book was intended to be the “definitive” Harry Potter encyclopedia”. The ad stated rights had been sold in England, Canada and Australia and that RDR was offering the worldwide rights with the exception of those countries.
Mr. Blair emailed RDR and SVA; the only response was from SVA, stating “he had been advised to leave these matters to others”.
In Sept 2007, counsel for JKR and WB emailed SVA with a CC to RDR, advising them the book appeared to infringe JKR’s copyrights and requesting that publication cease.
The document claims that RDR promised to “study the issues” and “get back to them”, while continuing attempts to sell the book, effectively, according to JKR/WB, “stalling”. This email and letter exchange took place until the end of October, noting that RDR refused to provide a copy of the manuscript to JKR and WB. A record of this correspondence appears on pages 22 – 24 of this document.
The document notes:
“On October 11,2007, during the same period that Mr. Rapoport said he could not respond to Plaintiffs’ letters because of a family emergency, Mr. Rapoport sent the chairman of Warner Bros. a cease and desist letter in which he claimed that Warner Bros. had violated Mr. Vander Ark’s rights in a timeline appearing on the Lexicon Website.” JKR/WB notes that the timeline was based entirely on JKR’s works. In the letter, RDR stated:
“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.”
RDR stated it was seeking “tangible rewards” for SVA for the use of the timeline.
On the Lexicon, SVA states:
“work you find in the Lexicon for your own site. However, I don’t give permission for people to just copy my work for their own use. Not only is that illegal, since everything in the Lexicon is copyrighted, it’s also just plain wrong.”
The document states that “If a user even attempts to highlight and copy any of the materials included on the Lexicon Website utilizing the “right click” function on their mouse, a copyright notice pops up.”
Plaintiffs File Suit and Seek to Obtain a Copy of the Manuscript
JKR/WB filed suit on October 31, 2007.
In the next several sections, JKR/WB assert that the Lexicon:
-copies JKR’s work extensively -illegally uses electronic copies of JKR’s work -draws virtually exclusively from JKR’s work
JKR testified that SVA took “all the highlights of [her] work, in other words characters’ secret history, the jokes certainly, certain exciting narrative twists, all the things that are the highlights of [her] stories” and put them into the Lexicon for their entertainment value.”
The document argues that the material in the manuscript represents JKR’s work. “The Lexicon manuscript contains none of the fan artwork, essays or analysis that appears on the Lexicon website; it consists simply of an alphabetical list of fictional facts concerning people, places and things taken from the Harry Potter books without the addition of any criticism or commentary.”
The document asserts that SVA used illegal electronic copies of the books in the production of the manuscript.
“Mr. Vander Ark was aware that making electronic copies of a book would be illegal, as he explained to an online discussion group. When another poster argued that “[b]ooks that are copyrighted, that if we have a hard printed copy of our own, we are allowed to make copies for our own personal use,” Mr. Vander Ark responded that “Actually, no, you can’t legally make copies of copyrighted books just because you have the paper version.. . . So any copies of Tolkien books or Harry Potter books in NewtonBook [electronic] format are illegal.”
The document states that the Lexicon book makes it “very clear” where the material comes from. On the first page, it states:
“All the information in the Harry Potter Lexicon comes from J.K. Rowling, either in the novels, the ‘schoolbooks,’ from her interviews, or from material which she developed or wrote herself.”
SVA did not dispute in testimony the statement that other than four dictionary citations, no other third-party citations appeared in the manuscript.
From the document:
“As Professor Johnson, Senior Tutor and fellow in English at Exeter College of the University of Oxford, stated in her declaration, of the Lexicon’s 2,437 entries, 2,034 simply lift information straight from the Harry Potter works. Professor Johnson also testified that most of the remaining 403 entries are also drawn from Ms. Rowling’s works with perhaps “four or five words” or a line or two of additional material that was not simply directly taken from Ms. Rowling”.
The Plaintiffs claim that the Lexicon:
-copies verbatim songs and poems -quotes and paraphrases JKR’s prose without quotation marks or attribution -extensively copies JKR’s “fictional facts” -contains long, detailed plot summaries that recount or retell the plots of the books
EDITOR’S NOTE: JKR/WB submitted a substantial amount of evidence to support the above claims, many of which are produced in charts which would be difficult to reproduce in this summary. While we will provide examples, the reader is directed to see the original document for complete evidence.
“The Lexicon contains verbatim copies of the creative songs and poems Ms. Rowling wrote for the Harry Potter Works including, the “Hogwarts’ School Song,” the Sorting Hat Song, and the poem, “His Eyes are as Green as a Fresh Pickled Toad.””
The document notes that at the trial SVA offered to remove these entries, but that neither RDR nor counsel had confirmed or commented on the proposal.
Some examples offered in the document in support of the above claims of direct copying with no quotations or attribution:
From book seven: “”Muggle-borns,” he said. “Goblin made armour does not require cleaning, simple girl. Goblins’ silver repels mundane dirt, imbibing only that which strengthens it.”
From the Lexicon book: “…goblin-made armor does not require cleaning, because goblins’ silver repels mundane dirt, imbibing only that which strengthens it…”
From book six: “What looked like ribbons of moving images flew from it, unraveling like rolls of film.”
From the Lexicon book: “When Summoned, the brains fly out of the tank, unspooling ribbons of thought like strips of film, which wrap themselves around the Summoner”.
In the description of Madam Pince:
From the second book: “the librarian was a thin, irritable woman who looked like an underfed vulture.” and “….shriveled face…”
From the Lexicon book: “Librarian at Hogwarts who looks like an underfed vulture (CS10) with a shriveled face (OP29), and is very strict and suspicious.”
The document states: “RDR claims that having a chapter citation referencing Ms. Rowling’s books forgives the lack of quotation marks. However, not only does RDR not offer any support for this claim, it is contrary to accepted practices in literature”. which discusses Jane Austen to show words written by Miss Austen with “that’s a work of scholarship. Of course I do.”
The documents state that RDRs expert witness responded to the question of whether she uses quotation marks in her own book
The document notes that no spoiler alerts appear in the text to “warn the reader who has not yet read all of the Harry Potter books that they are about to learn the ultimate outcome of the series or the fates of characters”.
The document claims that in places where information could have been summarized, the book instead makes use of JKR’s text.
From book four: “They looked like deformed, shell-less lobsters, horribly pale and slimy looking, with legs sticking out in very odd places and no visible heads. . . . each about six inches long, crawling over each other, bumping blindly into the sides of the boxes. They were giving off a very powerful smell of rotting fish. Every now and then sparks would fly out of the end of the Skrewt and, with a small phut, it would be propelled forwards several inches. . . .now over three feet long, and extremely powerful. No longer shellless and colourless, they had developed a kind of thick, grayish shiny armor. They looked like a cross between giant scorpions and elongated crabs – but still without recognizable heads or eyes. . . . Every now and then, with an alarming bang, one of the Skrewt’s ends would explode, causing it to shoot forward several yards.”
From the Lexicon book: “pale, slimy, deformed, shell-less lobsters. They had no heads but had legs sticking out at odd angles. The creatures were about six inches long and smelled strongly of rotten fish. Sparks flew out from their ends every so often which propelled them forward a few inches. After two months, the skrewts were about three feet long and extremely i11- tempered. When kept together, they attacked and killed each other. They developed gray, shiny armor and began to look like a cross between giant scorpions and elongated crabs. They still expelled fire from one end, although since they had no heads it was difficult to determine which end that was. This blast of flame shot the Skrewt in the opposite direction several yards.”
The document notes that instead the book could have simply said something to the effect that Skrewts are a type of dangerous hybrid creature invited and raised by Hagrid, the gamekeeper at Hogwarts, and discussed in the fourth book.
The document states that “the restatement of Ms. Rowling’s fictional facts is particularly egregious with regard to her Companion Books, which are short, non-narrative books that essentially already are a collection of fictional facts. In many instances, these invented items appear nowhere in the seven Harry Potter books.”
“For example, the Lexicon contains over 250 entries taken from Ms. Rowling’s Companion Book Quidditch Through the Ages, a book that is only 56 pages long.”
The document notes that similar entires to Fantastic Beasts and Where to Find Them occur.
Examples are provided in the document, such as:
From FBaWtFT: “The only Oriental dragon. Scarlet and smooth-scaled, it has a fringe of golden spikes around its snub-snouted face and extremely protuberant eyes. The Fireball gained its name for the mushroom-shaped flame that bursts from its nostrils when it is angered.. .. Eggs are a vivid crimson speckled with gold. . . .”
From the Lexicon book: “A species of dragon native to China. The Fireball is a scarlet dragon with golden spikes around its face and protruding eyes. The blast of flame from a fireball forms a distinctive mushroom shape. Eggs of a Fireball are vivid crimson, flecked with gold…”
Similar examples are given in the document for the Wizard Cards and the newsletters.
In testimony, SVA stated that he had an oral license to post the wizard cards to the Lexicon website, although he did not recall from whom. He admitted he had no documents to support this statement, and that he did not seek permission to use the cards in the book.
The Plaintiffs claim that the book uses substantial plot summaries in its entries, particularly in descriptions of characters. Dumbledore’s entry, fro example, is noted to be five pages in length, and includes details from “the story of his childhood, his interactions with Tom Riddle, his relationship with Harry Potter, Severus Snape and Gellert Grindlewald, and even reveals his death at the hands of Snape”.
The document states: “Most striking, however, is the Lexicon entry for “Harry Potter”. That entry is 11 pages long and provides the key plot points from all seven Harry Potter books.”
SVA stated in the trial that the Lexicon book would be read only by people who had completed the series. The document notes that the Plaintiffs’ disagree, and that RDR’s expert witness, Professor Sorensen, “testified that she believed the Lexicon could be read in conjunction with a “first reading” of one of the Harry Potter books.”
This section ends with “In sum, the Lexicon book contains synopses and abridgements of the plots and story lines of the Harry Potter books, retelling the entirety of the Harry Potter story from beginning to end and revealing the ultimate outcome of the series.”
The document states further about the book that:
-it fails to serve any of the purposes identified by RDR
-it is not a work of scholarship and contains virtually no criticism, commentary, or analysis, and “merely rehashes the people, places, and things from Ms. Rowling’s universe, placing them in alphabetical order – rearranging her “intellectual furniture” in a wholly unoriginal manner”.
-it misses opportunities to provide additional etymological explanations (noting, for example, that it does not mention in the “Lupin, Remus” entry that “Lupin” comes from “lupine” and that “Remus”comes from the legend of twin brothers Remus and Romulus, who were raised by wolves). It is also noted in the document that some etymologies provided by the Lexicon book are incorrect.
The document notes that expert witness Professor Johnson testified that of the Lexicon book’s 2,437 entries, 2,034 entries “simply lift” information from the series with “no commentary or analysis added”. Of the remaining entries, she testified that “many include nothing more than a single line or phrase of material that does not originate with Ms. Rowling, with the rest of the entry extensively paraphrasing or quoting Ms. Rowling’s fictitious facts, plots, and storylines”.
In response to Defense witness Professor Sorrenson’s suggestion that the Lexicon book adds value to the reader by pointing out errors or “flints”, SVA testified that there are “remarkably few” flints in the Lexicon book.
The Lexicon Does Not Serve the Purpose of a Reference Guide to the Harry Potter Works
The document offers several arguments in support of the above statement:
-The Lexicon Takes Too Much to Serve as a Legitimate Memory Aid, countering Professor Sorensen’s assertion by noting that instead of a “thumbnail sketch”, the Lexicon book “retells all of the plots and storylines surrounding a particular character, revealing the ultimate outcome of the series”.
The Lexicon Lacks Any of the Features of a Proper Reference Guide, stating that a “true encyclopedia does not simply reorder another individual’s work without adding additional research or scholarly analysis”. Nor does it, the Plaintiffs claim, provide a “ready-reference”, as the entries are too long. Nor could it be used as an index, as exact citations are not provided.
It is further noted in the document that other companion books differ from the Lexicon book. Several are references, including “The Sorcerer’s Companion: A Guide to the Magical World of Harry Potter. The document states that this alphabetized guide copies far less than the Lexicon and adds substantial original content.
The Lexicon’s Potential Effects on the Plaintiffs
The document states several:
-The Lexicon would likely be successful, citing previous-noted evidence that RDR and SVA anticipated as much. The document notes that RDR in particular promoted the book based upon SVA’s “celebrity within the Harry Potter community, as well as his ability to advertise the Lexicon on the Lexicon Website, would be helpful in marketing the Book, as demonstrated by Mr. Rapoport’s statements in an email to the purported British publisher of the Lexicon:
“Steve Vander Ark, who created the lexicon is a rock star at academic Harry Potter conferences, not to mention fan events. Rowling herself is a fan. In the Potter name his an Elvis like figure [sic]. I am sure he will continue to attract huge audiences everywhere he goes. This will be great for the book.”
The document notes that SVA testified the Lexicon website gets between 1.5-2 million visits monthly.
-The Lexicon would directly compete with Ms. Rowling’s encyclopedia, citing evidence that RDR marketed the book to children’s bookstores, and that it would be stocked next to the books themselves. In addition, the book would be released before JKR’s encyclopedia.
-The Lexicon book would harm JKR’s existing companion books, as consumers would have no incentive to purchase either of the books JKR wrote for charity.
-The Lexicon book would affect JKR’s series, as a reader of the book might find no reason to read the series after discovering the fates of characters, which would “effectively discourage reading and literacy, undermining Ms. Rowling’s intent in that regard”.
-The Lexicon would harm plaintiff’s licensing efforts
The document states that the defendant’s witnesses lack credibility, citing, among other reasons, RDR’s “pattern of false statements and evasions, both prior to the filing of this suite and during his testimony at trial”. The document also states that SVA’s testimony and declaration were not credible, in part due to the following:
“At trial, Mr. Vander Ark initially denied that he has refused to allow RDR to publish additional books he is planning to write because he believes that RDR lied to him and misled him. When confronted with an e-mail containing a statement to that effect, Mr. Vander Ark then acknowledged that he wrote and believed those words, contradicting his earlier trial testimony.”
The document also states: “By her own admission, Prof. Sorensen’s Declaration relied on books she never read, in at least one instance relying on the title alone in deciding whether to include a book on a list of supposedly “helpful” companion guides”.
CONCLUSIONS OF LAW
As noted above, substantial examples are offered, and the reader is advised to review the original document that we have attempted to summarize here.
As with the RDR document, the JKR/WB document review the basics of the Copyright Act. They assert: “RDR has failed to present any testimony or documentary evidence to rebut Plaintiffs’ evidence of copyright infringement”. The document asserts that the Plaintiff’s have shown evidence of copyright ownership, and that there is direct evidence of copying of JKR’s works.
The document notes that the Lexicon is an unauthorized derivative work, and that as copyright owner, JKR has the right to control derivative works.
The document notes that the copyright infringement is not fair use, providing multiple examples as to the reasons why.
The document also notes that the Plaintiff’s seek statutory damages based upon the infringement of JKR’s works.
“This Court has the discretion to award statutory damages as it wishes in order deter this type of infringing conduct, in the amount of $750 to $30,000 per work if non-willful or up to $150,000 per work if the infringement is found to be willful.”
The document notes that RDR’s willful infringement is a “key factor” in the case.