In New York, US District Court Judge Patterson has found in favor of Harry Potter author J.K. Rowling and Warner Bros. in their copyright case against RDR Books, which planned to publish a reference book titled Harry Potter Lexicon. The judge completely blocked publication of the book, which Rowling explained, "took an enormous amount of my work and added virtually no original commentary of its own." On its website RDR Books stated that it is "obviously disappointed" and considering its options.
When I first wrote about the potential implications this decision could have for the enclosure of kid's culture, I unexpectedly stirred up quite a controversy. I'm still concerned about how the whole thing will be presented and interpreted among child audiences, and about the ripple effects that copyright cases like these have on culture, but it appears that the decision itself could actually turn out to benefit fair use and possibly protect fan fictions/companions pieces. As Anthony Falzone, executive director of the Center for Internet and Society at Stanford Law School (where Falzone is also a lecturer in law) and part of RDR Book's defense team, argues the decision was made in such a way that could actually protect reference guides and companion books...just not the Harry Potter Lexicon:
Reference guides and companion books about literary works have been a critically important part of literature since its inception, and the right to publish them stood largely unchallenged. We agreed to help defend the Harry Potter Lexicon because J.K. Rowling's claims threatened that right, and because we believe the fair use doctrine protects the Lexicon, and other publications like it. We tried the case in April in a Manhattan Court and waited through the summer for a decision.
Today we found out we lost. In a thoughtful and meticulous decision spanning 68 pages, the Court recognized that as a general matter authors do not have the right to stop publication of reference guides and companion books about literary works, and issued an important explanation of why reference guides are not derivative works. Needless to say, we're very happy the Court vindicated these important principles.
But the Lexicon did not fare so well. The Court held the Lexicon infringed Ms. Rowling's copyright, was not protected by fair use, and permanently enjoined the publication of it.
One of the biggest issues, in addition to the lack of original or critical content, appears to be the very strong similarities between the Lexicon and the Harry Potter books in terms of the writing and language used. As Judge Patterson describes in the full text of the Court's decision (which you can access here):
Although it is difficult to quantify how much of the language in the Lexicon is directly lifted from the Harry Potter novels and companion books, the Lexicon indeed contains at least a troubling amount of direct quotation or close paraphrasing of Rowling’s original language. The Lexicon occasionally uses quotation marks to indicate Rowling’s language, but more often the original language is copied without quotation marks, often making it difficult to know which words are Rowling’s and which are Vander Ark’s.
Check out pages 19 to 26 for a number of examples...in fact the entire document is a fascinating read.
In the meantime, I'm going to try to track down some online discussions and see what the fans think of all this.