By: Risa Drexler

In 2004, J.K. Rowling gave the Harry Potter Lexicon (“Lexicon”), a web site devoted to analyzing and cataloging all things Harry Potter, her annual FanSite award. “This is such a great site,” she wrote, “that I have been known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing).”ⁱ When Lexicon creator Steve Vander Ark announced plans to turn the site into a book, however, Rowling was decidedly less enthusiastic. On October 31, 2007, Rowling filed suit against RDR Books (“RDR”), the publisher of the Harry Potter Lexicon, in the Southern District of New York, claiming copyright infringement and stating that “[i]t is not reasonable, or legal, for anybody, fan or otherwise, to take an author’s hard work, re-organize their characters and plots, and sell them for their own commercial gain.”ⁱⁱ In the complaint, Rowling, who plans to create her own “definitive” Harry Potter encyclopedia, asserts that she has the “sole right” to control the distribution of the “descriptions, character details and plot points” found in her beloved books.ⁱⁱⁱ In its reply, RDR maintains that the Lexicon does not infringe upon Rowling’s copyrights and is protected by the doctrine of fair use.^iv

Copyright law grants copyright holders the exclusive right to copy and adapt their works,^v but this power is not absolute. The fair use doctrine recognizes that in order for copyright law to fulfill its constitutional mandate —“to promote the Progress of Science and useful Arts”^vi —unauthorized copying of copyrighted works is often necessary. Without fair use, for example, critics would not be able to quote dialogue from films or books without authorization. The doctrine is codified in Section 107 of the Copyright Act, which provides that the fair use of copyrighted works is not copyright infringement and gives a non-exclusive list of fair uses of copyrighted material including criticism, comment, scholarship, and research.^vii It also delineates four factors for courts to consider when confronted with potential fair use: “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) 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.”^viii These factors are to be “weighed together, in light of the purposes of copyright.”^ix

While all four fair use factors will be considered, it is likely that the Lexicon decision will turn upon the court’s interpretation of the first factor, “the purpose and character of the use.” Here, the relevant inquiry is whether the work-at-issue is “transformative” or whether it merely serves as a substitution for the original work. In other words, does the work-at-issue add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message?”^x This factor is particularly important because it colors the court’s findings as to the remainder of the test: “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”^xi Likewise, if the court finds that the Lexicon is not transformative, it will be extremely difficult for RDR to establish fair use.

The complaint states that the Harry Potter Lexicon book, which is apparently the web site in book form, does not build upon Rowling’s original work—that it merely “rearranges the furniture that Ms. Rowling created.”^xii Rowling also claims that the Lexicon contributes nothing to the understanding of the series and lacks “originality and invention.”^xiii RDR, on the other hand, argues that the Lexicon is clearly transformative: by cataloging and indexing information spread over seven novels, five films and other media, the Lexicon serves as a valuable reference tool. Moreover, RDR claims that the Lexicon contains a large amount of original commentary and analysis, including a discussion of various historical and geographical references which draws upon material from various outside sources. RDR also points to a section of the book which reveals errors and inconsistencies in the Harry Potter series as evidence that the Lexicon creators are not merely free-riding on Rowling’s coat-tails.^xiv

Second Circuit precedent falls squarely in Rowling’s favor. In 1998, Castle Rock Entertainment brought suit against creators of The Seinfeld Aptitude Test (“The SAT”) for copyright infringement.^xv The creators of The SAT cataloged jokes and facts from the Seinfeld series and turned them into a popular trivia book, consisting of multiple choice trivia questions. The court held that “[a]ny transformative purpose possessed by The SAT is slight to non-existent.”^xvi The court rejected The SAT’s arguments that the book educated Seinfeld viewers or helped illuminate their understanding of the show. In its brief, RDR attempts to distinguish the Lexicon from The SAT on the grounds that the Lexicon contains significant research and commentary and draws upon outside sources in an effort to augment the reader’s understanding of the Harry Potter series.^xvii Regardless, the Castle Rock holding is controversial and was criticized by the Seventh Circuit in Ty, Inc. v. Publications International Ltd., a decision addressing similar facts to those of the Lexicon case.^xviii In Ty, the Beanie Babies’ manufacturer sued the publisher of a series of beanie babies collectors’ guides that contained photos of beanie babies, claiming copyright infringement. The court found that collectors’ guides are protected by fair use and that the publication of pictures of beanie babies in their entirety is necessary for the creation of a comprehensive reference tool.^xix

A cursory examination of the Lexicon reveals that although it copies some of Rowling’s passages verbatim, the site is more than simply an alphabetized catalogue of characters, places, and spells. An entry on Draco Malfoy, for example, not only discusses his personality and relationship to other characters, but includes a timeline of his life, examines his motivations, contains an etymology of his name, and notes that Rowling had chosen a different name for him in earlier drafts. While this is but one of many Lexicon entries, it indicates that the site does not serve as a substitute for the Harry Potter series, but rather as a supplement and reference.

Copyright law is meant to be “an engine of free expression.”^xx In exchange for the exclusive right to copy and adapt original works, copyright holders relinquish the right to control public criticism and analysis of their creations. With countless unauthorized fan web sites, user-generated encyclopedias, and reference books already in existence—many of which generate profits for their creators—the outcome of the Lexicon case could reach far beyond Hogwarts and Hogsmeade. If the Lexicon is published, fans will still no doubt purchase J.K. Rowling’s authorized Potter companion and delight in its addition to the Harry Potter oeuvre. If Rowling obtains an injunction, however, fan generated web sites and companion books run the risk of being exiled to Azkaban—a dark fate for their creators and fans worldwide.

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ⁱ Fan Sites: The Harry Potter Lexicon, J.K. Rowling Official Site, http://www.jkrowling.com/textonly/en/fansite_view.cfm?id=14 (last visited March 7, 2008).
ⁱⁱ News: Companion Books, J.K. Rowling Official Site, http://www.jkrowling.com/textonly/en/news_view.cfm?id=102 (last visited March 7, 2008).
ⁱⁱⁱ Complaint at 18, Warner Bros. v. RDR Books, No. 07-CV-9667 (S.D.N.Y. Oct. 31, 2007).
^iv Memorandum of Law in Opposition to Plaintiffs’ Motion for Preliminary Injunction, Warner Bros. v. RDR Books, No. 07-CV-9667 (S.D.N.Y. Feb. 8, 2008).
^v 17 U.S.C. § 106(1), (2) (2006)
^vi U.S. CONST. art. 1, § 8, cl. 8.
^vii 17 U.S.C. § 107 (2006).
^viii Id.
^ix Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).
^x Id. at 579.
^xi Id.
^xii Memorandum of Law in Support of Preliminary Injunction at 6, Warner Bros. v. RDR Books, No. 07-CV-9667 (S.D.N.Y. Jan. 16, 2008).
^xiii Id.
^xiv Id.
^xv Castle Rock Entm’t Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132 (2d Cir. 1998).
^xvi Id. at 142.
^xvii Memorandum of Law in Opposition to Plaintiffs’ Motion for Preliminary Injunction at 11, Warner Bros. v. RDR Books, No. 07-CV-9667 (S.D.N.Y. Feb. 8, 2008).
^xviii Ty, Inc. v. Publ’ns Int’l Ltd., 292 F.3d 512 (7th Cir. 2002).
^xix Id. at 521.
^xx Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).