JKR/WB vs. RDR Books Trial: Findings of Fact & Conclusions of Law (pt 1)

We now have available at Leaky the Findings of Fact and Conclusions of Law documents from both Plaintiffs JKR/WB and Defendant RDR Books. These documents offer each side’s analysis of the trial and opinion on how it should conclude. The documents are in PDF format and total 10MB/200 pages.

RDR Books’ Findings of Fact and Conclusions of Law (> 1 MB/55 pages)

JKR/WB’s Findings of Fact and Conclusions of Law (9MB/169 pages)

EDITOR‘S NOTE: Below, we provide a summary for the RDR document; the summary for the JKR/WB document may be found here.
Please note that these summaries are simply an effort to break the documents down into a more digestible form for Leaky readers, and are not meant as a substitution for the original documents – in fact, in places where it would be unwieldy to summarize I will refer Leaky readers to the original documents.

Any mistakes made in the summaries are my own.

EDITOR‘S NOTE II: While updating the summaries, a technical glitch resulted in the deletion of the original of this post. My sincere apologies to those who made comments that were lost.

DEFENDANT RDR BOOKS‘ PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Section 1 PROPOSED FINDINGS OF FACT

Under Copyrighted Works at Issue, RDR lists the following:

A. The Harry Potter Novels, noting that author J.K. Rowling (JKR) owns the copyright to the seven books and that Warner Bros. Entertainment (WB) owns exclusive film rights and copyrights, and that the novels have sold more than 300 million copies worldwide
B. The companion books Quidditch Through the Ages and Fantastic Beasts and Where to Find them, noting JKR owns the copyrights and that the $30 million in royalties generated by the books have been donated to charity
C. The Daily Prophet, three newsletters written by JKR and provided to fans
D. Wizard Cards, text which JKR wrote for use in an Electronic Arts video game, the copyright for which is owned by the video game company

The document notes that copyright proof of ownership was not submitted to the court for the films, the newsletters, nor the Wizard Cards, although confirms that Electronic Arts is the copyright holder for the cards.

The Lexicon

Origins of the Lexicon Website

In this section, Steven Jan Vander Ark (SVA) is described as a former teacher and librarian from Michigan and the principal author of the Harry Potter Lexicon website (The Lexicon), stating that he became a fan after reading the first novel in 1999. Taking notes as he read, SVA “expanded these notes to include short descriptive lists of spells and character names, which he shared on internet discussion groups for fans”. He began working in 1999 on a website (the Lexicon) that was opened in August of 2000, testifying that his purpose was to create a comprehensive encyclopedia and reference tool collected in one central location.

For three years, SVA worked on the site alone, but after the publication of the fifth novel, the amount of work became too great and SVA “recruited” others to help him with the site. The document reads that the Lexicon now has a staff of seven or eight, noting that two others are also librarians “whose training and skills have helped them to develop the Lexicon website as a reference tool that collects information for quick and easy access”. Another editor teaches Latin and Greek.

The document notes that “material on Mr. Vander Ark’s website is drawn from the Harry Potter books, and contains background information drawn from many outside resources to help illuminate what Mr. Vander Ark calls, “the incredibly rich world and hidden meanings” of the Harry Potter texts”. Outside sources listed include Bullfinch’s
Mythology, Field Guide to Little People, and the online Encyclopedia Mythica and Haunted Britain. The Lexicon also contains material from the sources listed under the copyright section above, as well as from interviews of JKR.

The document states that the Lexicon “attracts hundreds of thousands of visitors every month from all over the world”, that access to the site is and always has been free, and there has never been a password required.

The document lists revenue generated by the Lexicon, noting that is has earned little money and has been a volunteer effort:

“For the seven year period between August 2000 and October 2007, the website generated approximately $6,500 to $7,000 in total revenue, an average of approximately $1,000 per year. The costs associated with running the website were nearly the same or slightly less than the revenue it generated.” Advertisements added since October 2007 have generated about $400 per month.

The document states that JKR has “praised” the Lexicon, giving it a fan award in 2004.

In September 2006, WB flew SVA to the set of The Order of the Phoenix. Producer David Heyman is reported to have told SVA that WB used the Lexicon almost daily.

In July 2007, SVA visited the Electronic Arts studio, reporting that he saw walls of the studio covered with Lexicon printouts.

The document notes that Scholastic Senior Editor Cheryl Klein wrote to SVA to thank him for help the Lexicon provided during editing.

The document says that fans of the Lexicon “often suggested” that SVA create a print version, and that around 2003, SVA began to consider the idea, saying that he ruled out the idea at the time because A: the series was not finished and B: he didn’t think it would be allowed under copyright law (noting that SVA, who is not an attorney, is “unsure why he formed the belief that publishing the Lexicon as a book would be prohibited by copyright law; at the time he had never spoken to an attorney regarding what copyright law would allow”.

Decision to Publish

Roger Rapoport of RDR Books in Michigan (RDR) read about SVA and the Lexicon in August 2007, and contacted SVA about “publishing
a Harry Potter encyclopedia based on some of the materials from the Lexicon website”. Early on, SVA voiced concerns regarding the legality. RDR reportedly promised to look into the legal issue, and reported back “that he had determined that publication of content from the Lexicon website in book form would be legal”. In response, SVA asked if RDR would stand behind this opinion in the event of any lawsuits, and RDR agreed.

A contract was signed, and the two men agreed the book would be limited to descriptions and commentary from the site, organized as an A-to-Z encyclopedia. The document states:

“Because the Harry Potter books do not contain footnotes, an index, or glossary of any kind, Mr. Rapoport and Mr. Vander Ark believed an A to Z guide would fill the demand of fans wanting easy access to the facts of Harry Potter, all organized in one central location”.

The document notes that all material came from the website, and that about half of the website was not included in the book due to space limitations. The only material not previously on the Lexicon is information about the seventh novel, noting that SVA “wrote the material involving the Deathly Hallows book simultaneously for the
Lexicon book and the Lexicon website because it had just been released when Mr.
Vander Ark began composing the Lexicon book”.

Contents of the Lexicon Book

This section describes the above summary of the Lexicon book being an A-to-Z guide in more detail. According to SVA, he created the Lexicon to be “quick reference,
the kind of thing that somebody who’s reading would need to look up a fact or, for example, a fan who is writing a story and needs to know some fact about a character for their story. That’s the kind of reference this is. So we tried to make a concise, easy-to use reference, but also one that was as complete as possible”.

The document notes that SVA did not intend the Lexicon book to be “a substitute or replacement for the Harry Potter books, but rather he wrote the Lexicon for fans and
readers who are familiar with the names, characters, spells, events, places and storylines in the Harry Potter works”.

During the trial, RDR called Dr. Janet Sorenson, associate professor of English from UC Berkley. According to the document, her “expert testimony established the long history of lexicons, encyclopedias and other reference guides in English literature, as well as the Lexicon’s placement in that context and its value as a reference guide and aid to readers of the Harry Potter works”. Dr. Sorenson defined a reference guide to literature as “something that would help readers understand, access, in some cases illuminate layers of meaning in a particular text.” Dr. Sorenson noted that in particular, fantasy literature generates large numbers of reference guides, which are useful to readers in reminding them “of the many characters and their relationships, as well as offer insights into the
significance of invented items”.

Dr. Sorenson noted finding 19 or 20 guides to Tolkien’s novels and “about15” to Lewis’s:

“Like Lewis and Tolkien’s works, the Harry Potter novels may
lead a reader to want to use a reference guide because the novels contain an elaborate
world, described in thousands of pages of texts, and involving characters, creatures, spells
that appear in one book and maybe again hundreds of pages later, or in another book.
Having a reference guide that acts as a memory guide to these novels can often be helpful”.

According to the document, Sorenson also testified that:

“authors often write their own reference guides to their own literature, at times in response to guides written by third parties with which they disagree. One value of having other third-party guides in addition to the author’s guide, is that the author may not be the best judge of what in her text needs illumination.”

According to a document sub-heading, the “Lexicon Synthesizes And Distills Facts Of The Harry Potter Universe”. The document states that the books were released over such a long period of time, total several thousand pages in length, “refer to hundreds of characters, creatures (both real and fanciful), places (both real and fanciful), spells, objects and devices (some of them magical).” In addition, “additional information about the characters, creatures, places, spells, objects and devices that appear
in the Harry Potter novels is scattered across scores of other sources, including dozens of
interviews Ms. Rowling has given over the years, and her short companion books.”

The document states that Dr. Sorenson and SVA established “the utility of
the Lexicon as a reference guide to the elaborate world of the Harry Potter works”, and that “The facts gathered in the Lexicon are accompanied by thousands of
citations that indicate where they were found within the corpus of the Harry Potter works. These citations are found in parentheses, with a chapter number where applicable”. With regard to page numbers, SVA says they are omitted because the numbers vary over the various editions of the books.

Additional evidence as to the value of the Lexicon is offered, including:

-The method by which it “collects and synthesizes information from the
various Harry Potter novels and other sources, and cites to the sources for the facts
collected”
-It’s value as a memory aid to the reader (SVA notes that its value goes beyond that of a memory aid, in that “he created the Lexicon so that readers and fans can easily find information for a number of purposes, such as to research a paper on women in literature, write fan fiction, create art work, write wizard rock songs, or the like based on the Harry Potter work”)

SVA recognized that there is “substantial linguistic overlap between many Lexicon entries and the sources from which information is drawn, including the Harry Potter works”, noting such overlaps were required to “accurately report the facts of the novels”, and that changing the language used “would have interfered with the purpose
and goal of the Lexicon to accurately organize and report information found in the Harry
Potter works in an easily accessible format”.

The length of the entries is addressed. “While it would be possible to shorten certain Lexicon entries and use fewer of the words from the original text, doing so would detract from the value of the Lexicon as a comprehensive guide of factual information. Dr.
Sorensen testified that other Lexicons and reference guides frequently quote and paraphrase liberally from the underlying works” and that “another reference guide with a different focus might find it appropriate to describe things differently in entries of different length”.

SVA notes that entries in the current version of the book that exactly quote songs or poems will be deleted from the manuscript before publication, and that after the lawsuit was filed, he revised the book to remove overlapping Fantastic Beast materials.

The document notes that exhibits offered by the Plaintiffs to compare JKRs works with the Lexicon reported the text of the Lexicon “incorrectly”. For example, “a comparison of the Lexicon’s text in Exhibit 1 to
Plaintiffs’ Exhibit 48 reveals that Plaintiffs’ exhibit misquotes the Lexicon’s entries for
Aguamenti; apparition; astrology; Binns, Professor Cuthbert; and Decoy Detonators”. Another example reportedly quotes a phrase “that is nowhere to be found in the Lexicon entry”. Further, the document notes that the Plaintiffs’ charts fail to provide the full text of the Lexicon entries, suggesting the Lexicon entry is copied fully from the Harry Potter works.

The Plaintiffs argue that the Lexicon is not a valuable reference guide because of few citations, with the document says is “contradicted by the text of the Lexicon itself, which contains citations to the title and chapter of the relevant Potter
books for each entry in the Lexicon”. In response to the charge that quotation remarks are not always used, SVA “explained that Lexicon entries nevertheless indicate where they are quoting statements of characters; moreover, these indirect quotes are followed by a citation to the source material”.

The Plaintiffs contend that the Lexicon reveals a “tremendous amount” of the plot lines of the novels and may discourage children from actually reading the book ’ an argument that RDR counters in part with JKR‘s words that the Lexicon would not be read for entertainment value, and that anyone wanting a shortcut to the novels could watch the films.

In the subheading The Lexicon Draws On Outside Resources And Adds Insights
To The Harry Potter Works, the document states that the Lexicon provides “a significant amount of original insight into the Harry Potter texts” by offering etymologies for approximately 200 words, which offer readres clues into the “histories, sources and allusions that underlie invented terms in the texts”. It’s noted that JKR and witness for the Plaintiffs Jeri Johnson criticize the Lexicon’s etymological explanations as “wrong, misinformed and sloppy”, but adds that etymologies are “often subject to debate”. Dr. Sorenson positions that “different authors often find varied
significance and offer diverse meanings of the original works they analyze, and that this
is one of the values of having multiple guidebooks published by a variety of authors”.

RDR claims that another way the Lexicon adds value is by including referential materials that “offers insight into the Ms. Rowling’s allusions to literature, mythology, and other cultural sources”, such as by ’

-including descriptions/discussions of real world geographic places mentioned in the novels
– the translation of British vernacular/slang for American readers
-noted mistakes and inconsistencies (termed “flints”)

The document says “Professor Sorensen confirmed that in her expert opinion, the additional referential information provided by the Lexicon will give readers a deeper knowledge and appreciation of what is going in the original novels and contribute to a deeper appreciation of Ms. Rowling’s achievement”, to which it notes that the “Court agrees”.

In subheading, RDR positions that The Lexicon Offers Critical Interpretation, following with “the Lexicon offers a limited amount of critical
interpretation of the Harry Potter works” in character description (often in lengthy entries that RDR argues do not “serve as plot summaries, or abridgements of Ms. Rowling’s work”).

The document states that “the evidence demonstrates that the Lexicon book is intended to encourage fan interest in, and to serve as a reference to, the Harry Potter works. It thus offers no substitute for those works. The Lexicon also adds significant information not found in Ms. Rowling’s work, including etymologies, referential material and commentary. It
synthesizes and distills the myriad facts found in the Harry Potter world and allows the
user to quickly find information he or she needs, for many purposes such as a memory
aid or to help fans develop their own commentary, write research papers, or fan fiction”.

Under Plaintiffs’ Criticisms Of RDR‘s Attempts To Publish The Lexicon Without Permission, the defendants address multiple points.

A. Under Allegations of Bad Faith, RDR claims that “evidence does not support
Plaintiffs’ contentions that RDR was rushing the book to the market before Ms. Rowling
could finish her encyclopedia”, noting that both RDR and SVA wanted the book on the market for Christmas and before other third-party guides where published.

B. Under Plaintiffs’ Objections To The Lexicon’s Quality, the document counters that the Lexicon is not intended to be a scholarly work, and that the intended audience is “often children”. The offer that JKR‘s argument that readers should be protected from “substandard” works is inconsistent with her claim that the quality of “third-party guidebooks does not matter to the question of whether such books should be
allowed”.

C. Under Ms. Rowling’s Intentions To Create Her Own Encyclopedia, it is noted that JKR‘s planned book “will contain large quantities of material available exclusively to her” and will be drawn from her personal notes.

D. Under Evidence Regarding The Effect Of The Lexicon On The Market For
Ms. Rowling’s Work, the RDR counters that at least four A-to-Z guides to the Potter series are already available. Former publisher and expert witness Bruce Harris testified that it’s “extremely unlikely” the Lexicon would hurt sales of any guide JKR might publish, noting that stores often decide how many copies of a book to order based on the author’s past publishing history.

Section Two covers CONCLUSIONS OF LAW.

Under Infringement, the defendants references the Copyright Act of 1976. The acknowledge JKR‘s copyright to the books, noting that she has not sufficiently established copyright ownership to the newsletters. It is also noted that WB did not provide sufficient ownership evidence as to the film rights nor to the the Wizard Cards registered to Electronic Arts.

Under Improper or Unlawful Appropriation, the document notes that “upon showing actual copying, a plaintiff still must show that this copying amounts to “an improper or unlawful appropriation” of her work”, that “copyright protects only an author’s original expression”, and that “the point of substantial similarity analysis is to determine whether the defendant’s work copied an actionable amount of protectable expression, or unprotectable elements such as facts.” Examples of such challenges to the Copyright Act in the form of litgation are offered in the document on page 35.

The document states that the facts represented in the Lexicon “and many more are arranged in an A to Z listing consisting of roughly 2,400 entries. The order in which fictional facts are presented in the Lexicon bears
almost no resemblance to the order in which the fictional facts are arranged to create the
story of Harry Potter and the universe he inhabits. In other words, the fictional facts used
by the Lexicon are arranged to report information and where to find it, rather than to tell
the same story told by the Harry Potter works in similar fashion. It is presumably for this reason that Ms. Rowling herself acknowledged that no one would read the Lexicon for entertainment.” Further, RDR argues that “while a large amount of information from the Harry Potter Works is included in
the Lexicon, much is also left out, as evidenced by the length of the Lexicon (450 pages)
compared to the combined length of the Harry Potter novels (thousands of pages). By necessity, the Lexicon not only organizes fictional facts, it distills a large volume of
information into a much shorter summary form”, noting that “It is unclear from the record how much of the Lexicon is made up of direct quotes from the Harry Potter works”, but that “even assuming a significant amount of quotation, the accurate reporting of
attributes, characteristics and events will often require linguistic overlap”. This section is summarized with the following:

“the Lexicon is not substantially similar to Ms. Rowling’s works and therefore does not infringe her copyrights in them”.

In the section on Fair Use, the document notes that “even if Ms. Rowling were to show infringement of her copyrights, the Lexicon may nonetheless be protected by the fair use doctrine”, adding that fair use is a “”First Amendment Safeguard” designed to prevent copyright law from unduly burdening free speech”. The guiding factors in assessing fair use:

RDR argues that the Lexicon meets The Purpose And Character Of The Use, standard by being transformative, in that as a reference it helps readers to better understand the original work and that it provides “a significant amount
of new information in the form of observations, commentary and analysis”. RDR further argues that while “the Lexicon is a commercial product, that fact is significantly outweighed by its transformative purpose.”.

In reference to the second guiding factor of Fair Use, the Nature of the Copyrighted Work, RDR argues that the fact the Potter books are published works is relevant, as the Lexicon creates a reference “tool” for readers.

Under Amount and Substantiality of the Portion Used, the third guiding factor, the question of whether “the extent of copying is reasonable in light of its purpose” ins addressed by asserting that depending upon the purpose, “using a substantial portion of a work ’ or even the whole thing ’ may be permissible”, adding “this is
particularly true where the accused work is a reference tool that presents factual
information about copyrighted works”. They add:

“Here, it is clear that the Lexicon draws a large amount of information from the
Harry Potter works. Whether the extent of that copying however, is unreasonable or
excessive, can only be determined in light of its purpose. Here, the purpose of that
copying is to create a reference guide by collecting, organizing and presenting factual
information. Creating a useful and comprehensive reference guide requires borrowing a
significant amount of information from the Harry Potter works”.

The fourth guiding factor is the Market Effect, “the effect of the use upon the potential market for or value of the copyrighted work”. RDR points to prior argument that “the transformative elements of the Lexicon create substantial
public value because it helps readers to better access, understand and enjoy the Harry
Potter works”, adding that “there is no proof, or even a plausible suggestion, that a consumer would purchase the Lexicon instead of purchasing any one of the Harry Potter novels” and that “the Lexicon does not present any potential harm to the markets for the
original Harry Potter works”. In addressing the Plaintiffs’ claim that “the Lexicon seeks
to occupy a market for derivative works that is Ms. Rowling’s alone to license and
exploit”, RDR responds that “While the question of whether a reference guide is a “derivative work” under the Copyright Act is an interesting one, the Court need not answer it here. Even if the Lexicon is a derivative work, it still would not present any cognizable harm to the market for Ms. Rowling’s work. The more transformative the derivative work, the less likely it is to present cognizable market harm” and that “the Lexicon is highly transformative”. Even if the Plantiffs’ claims of market harm were accurate, the document claims, they’ve failed to present study-backed proof of a first-to-market advantage the Lexicon might have, and evidence indicates the book would not be published in substantial numbers. They further reference Rowling’s plans for her own encyclopedia, noting it will contain material only JKR could provide.

“In sum, the Lexicon is highly transformative based on its utility as a
comprehensive reference work and its addition of original material; uses a proportion and
amount of the Harry Potter works that is reasonable in light of that purpose; and presents
little, if any, effect on the market for Ms. Rowling’s copyrighted works, or any
companion guide she may one day publish. No bad faith has been shown.”