Once upon a time, longtime Harry Potter fan Steven Jan Vander Ark ran a web site which contained an encyclopedic repository of facts about the Harry Potter universe.  The website was extremely popular, and received visits many people, including the creator of Harry Potter herself, JK Rowling.  After being featured in a newspaper for his work on the website, a publisher contacted Vander Ark about a book deal.  He agreed, and The Harry Potter Lexicon was born.  The web site was then reformatted into a book by RDR Books.  JK Rowling, the author of the Harry Potter books, sued RDR Books for copyright infringement. Rowling claimed that the encyclopedia illegally copied copyrighted aspects of her books, including facts and events that occurred within the story as well as numerous quotes taken from the book.  Controversy erupted almost immediately, and advocates of expanded notions of fair use, along with people who dislike copyright law generally, came out to complain about this case.

Well, a decision has come down in the case of Warner Bros. & Rowling v. RDR Books et al. As I would have predicted, the case came down in favor of Rowling.  The law always favored Rowling, and the popular argument for the Fair Use defense was largely wishful thinking.  There are a number of points that seem lost on people when talking about cases like this.  In order to fully grasp why the case came down as it did, I will try to go through the points one by one as the court tried to.

1.  Copying text isn’t the only way to infringe a copyright.

The judge in this case examined a lot of details into the way facts were compiled, to what extent direct language was taken from the Harry Potter books, and other issues relevant to how the Harry Potter books were copied into the Lexicon.  He concluded that in many cases, the text of the Lexicon was pretty much copied straight from the Harry Potter books.

For example, in the entry for “armor, goblin made,” the Lexicon uses Rowling’s poetic language nearly verbatim without quotation marks. The original language from Harry Potter and the Deathly Hallows reads:

“Muggle-borns,” he said. “Goblin-made armour does not require cleaning, simple girl. Goblins’ silver repels mundane dirt, imbibing only that which strengthens it.”

The Lexicon entry for “armor, goblin made” reads in its entirety:

Some armor in the wizarding world is made by goblins, and it is quite valuable. (e.g.,HBP20) According to Phineas Nigellus, goblin-made armor does not require cleaning, because goblins’ silver repels mundane dirt, imbibing only that which strengthens it, such as basilisk venom. In this context, “armor” also includes blades such as swords.

(internal citations omitted)

There was only one argument that the Lexicon could make that there was no copyright infringement, and that’s the argument that the parts of the story that were copyright copied were not copyrightable. Why? Because what was copied were “fictional facts”. 

However, this is not a strong argument. It’s true that facts are not copyrightable.  Simply because Ken Burns holds the copyright in a documentary about the American Civil War does not mean that no one else can write or talk about the American Civil War.  But the “fictional facts” of Harry Potter universe are not facts.  They are plot points.  And plot points can be copyrightable aspect of a story.  This might upset writers of fan fiction and other writers who heavily borrow on elements of existing works of fiction without license, but it is hardly a controversial point of law.  The Second Circuit Court of Appeals held the exact same way when they ruled against a trivia book about Seinfeld.  In that case, the trivia questions were about plot, not facts, and the publishers lost the case.  Similar cases have also been brought against publishers of books about the Star Trek universe, and been resolved the same way.

2.  Not every retelling of a story is fair use

Satisfied that the Plaintiff had made a case for copyright infringement, the judge then turned his attention to the defense raised by RDR Books: that the Lexicon’s use of Rowling’s works constitutes Fair Use.

Fair Use is a defense to copyright infringement, and is determined by balancing several factorsi, which are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the 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.

Many people read the first factor and conclude that not-for-profit use of a copyrighted work is OK.  This is a gross misreading of the law.  In practice, this element really asks the question: “Does the new work transform the old work into something different?” 

The question the court then considered was: Does the Lexicon transform the Rowling’s work?  Well, it tells the same facts and same story as the books, but in an encyclopedia-style of writing instead of a narrative.  This makes looking up facts easier when you need to know something specific about an element of a given scene, and therefore has a research function rather than an entertainment function.  However, this does not mean that it’s completely transformative.  The Lexicon’s liberal use of the original text diminishes this argument, as does the fact that the subject the Lexicon references is a purely fictional work.  Unlike a factual work, fiction works contain significantly more copyrightable subject matter because they’re wholly the creation of someone’s imagination.

Additionally, the market for licensed reference books that use the language Rowling used in her books is substantially diminished by letting the Lexicon go to press.  Copyright law gives these rights to the creators of new works as a reward for creating them.  Personally I’ve always been a little wary of the idea of looking at the market for derivative works.  The ever-expanding line-up of officially licensed products that have little to nothing to do with the underlying IP tends to restrict what uses are fair over time in a manner I’m not convinced is fair. The Court appeared to give this some consideration but noted in it’s opinion that:

While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled.

In other words, one of the Lexicon’s biggest problems is that it simply copied too much.

That said, I’m not convinced by the Court’s reasoning that rewriting the Harry Potter series as an encyclopedia rather than a narrative series is actually transformative.  Fiction writing can take on many more forms than just the novel and the short story.  Ficticious news reports, press releases, chat room logs, even legal pleadings can be structures for original works of fiction.  The Lexicon amounts to an incredibly detailed encyclopedic retelling of the story of Harry Potter.  That’s not a transformative work–it’s a creative paraphrasing.

Despite my misgivings about the reasoning, the result of this case conforms to both the law of copyright as it currently stands and should stand, at least with respects to works of fiction.  The law creates an exclusive right in the creators of new works to exploit the labor of their own minds for profit.  It does this to encourage people to invest time and effort into the creative process, and generally it works.  It’s not a perfect system, but none of the major flaws in the system are really present in this case.