J.K. Rowling Takes On Fan's Harry Potter Book In Court

NEW YORK — J.K. Rowling testified before a packed courtroom in a lawsuit to block publication of a Harry Potter lexicon, telling a judge that the book amounts to a "wholesale theft" of nearly 20 years of her hard work. "We all know I've made enough money. That's absolutely not why I'm here," Rowling told the judge in U.S. District Court.

The British author sued Michigan-based RDR Books last year to stop publication of Steven Vander Ark's "Harry Potter Lexicon," claiming copyright infringement. Vander Ark runs the popular Harry Potter Lexicon Web site, and RDR wants to publish a print version of the site and charge $24.95.

Rowling claims the book is nothing more than a rearrangement of her own material and told the judge it copied so much of her work that it amounted to plagiarism.

"I think it's atrocious. I think it's sloppy. I think there's very little research," she testified Monday. "This book constitutes wholesale theft of 17 years of my hard work."

She also said she has recently started work on her own encyclopedia and plans to donate the resulting profits to charity _ adding that she does not expect to complete it for two to three years because she wants to do it right. If Vander Ark's lexicon is published, "I'm not at all convinced that I would have the will or the heart to continue with my encyclopedia," she said.

RDR's lawyer, Anthony Falzone, in an opening statement defended the lexicon as a reference guide, calling it a legitimate effort "to organize and discuss the complicated and very elaborate world of Harry Potter." The small publisher is not contesting that the lexicon infringes upon Rowling's copyright but argues that it is a fair use allowable by law for reference books.

Rowling said she believed that a victory by Vander Ark could damage the Harry Potter name and embolden imitators.

"Should it be published, I firmly believe that carte blanche will be given to anyone who wants to make a quick bit of money, to divert some Harry Potter profits into their own pockets. ... I'm not delighted to have work I consider to be this shoddy associated with Harry Potter," she said.

The non-jury trial will be decided by U.S. District Judge Robert Patterson Jr., who must determine whether the use of the material is legal because Vander Ark added his own interpretation, creativity and analysis. The testimony and arguments could last most of the week. Rowling will spend her breaks in the seclusion of a jury room, away from fans of her wildly popular series.

The trial comes eight months after Rowling published her seventh and final book in the series. The books have been published in 64 languages, sold more than 400 million copies and produced a film franchise that has pulled in $4.5 billion at the worldwide box office.

In sometimes emotional testimony, Rowling recalled starting work on the first book in 1991 when she was 25 and so destitute that she sometimes had to choose between purchasing typewriter ribbon and food. She said the Harry Potter characters were a fantasy world to which she could escape from the hard work of raising a child on welfare as a single mother.

Rowling choked up when her lawyer, Dale Cendali, asked what Harry Potter meant to her.

"I really don't want to cry because I'm British you know," the mother of three said. Then she added, "These characters continue to mean so much to me over a long period of time. It's very difficult for someone who is not a writer to understand what it means to the creator. The closest you could come is to say, 'How do you feel about your children?' These books, they saved me."

Rowling, who lives in Edinburgh, Scotland, with her husband and children, also testified she had stopped work on a new novel because the lawsuit has "decimated my creative work over the last month."

She said Vander Ark sometimes simply translated a Latin word. "Any 7-year-old with a pocket Latin dictionary could do that."

"There are incorrect translations, there are incorrect etymologies and there are places where Mr. Vander Ark quite literally has not understood the books," she said.

Outside court, she read a statement saying she was fine with lots of books in many languages that comment on or criticize Harry Potter.

"But the book in this case is different. It provided no analysis and virtually no commentary. It takes far too much and it offers precious little in return," she said.

Vander Ark, 50, has said he joined an adult online discussion group devoted to the "Harry Potter" books in 1999 before launching his own Web site as a hobby a year later. The Web site attracts about 1.5 million page views per month and contributions from people all over the world.

He said he initially declined proposals to convert the Web site into an encyclopedia, in part because he believed until last August that in book form, it would represent a copyright violation.

After Rowling released the final chapter in the "Harry Potter" series last July, Vander Ark was contacted by an RDR Books employee, who told him that publication of the lexicon would not violate copyright law, he said. Still, to protect himself, Vander Ark said he insisted that RDR Books include a clause in his contract that the publisher would defend and pay any damages that might result from claims against him.

He said it was decided that the lexicon would include sections from the Lexicon Web site that give descriptions and commentary on individual names, places, spells and creatures from Harry Potter stories.

Rowling acknowledged she once bestowed an award on Vander Ark's Web site because, she said, she wanted to encourage a very enthusiastic fan.

But she said she "almost choked on my coffee" one morning when she realized Vander Ark had warned others not to copy portions of his Web site. She said she now has second thoughts about all the encouragement she has given to online discussions and Web sites devoted to her books.

"I never censored it or wanted to censor it," she said, adding that if she loses the lawsuit, she will conclude she essentially gave away her copyrights by encouraging the Web sites.

"Other authors will say, 'I need to exercise more control. She was an idiot. She let it all go,'" Rowling said.

___

On the Net:

The Harry Potter Lexicon: http://www.hp-lexicon.org/

J.K.Rowling: http://www.jkrowling.com/

Comments

[BrighidG]

Vader Ark is a greedy, delusional idiot.

He tells other fans they shouldn't go about creating their own encyclopedia, shares his stalkerish fantasies where JKR is his best friend and would let him help write the official encyclopedia and then, when reality sets in and he realizes that won't be happening, he tries to publish the Lexicon. The Lexicon which has no new information in it and just regurgitates JKR's own words.

I hope he gets his ass handed to him.

[scottyboi84]

She should NOT leave this alone. Despite her wealth and success from Harry Potter, she is still an author and an artist of an original work, and she should have rights to all profits pertaining to the original art work. And as far as Vander Ark, i don't know why he would have included a legal expense clause in his contract if he didn't know that this exact thing could happen. When it is decided that the work belongs to Rowling, as it does, he should personally write the check to cover her legal expenses to cover the attempted theft of her already copywritten work.

[slobone]

I think this is a mistake on her part. She should just ignore the whole thing. The idea that this book will cut into her sales is ridiculous... Now she looks like a bully and will probably be, oh, 1% less beloved.

[totalliberal]

Intellectual property is something artists must guard diligently. Just ask any 50's black musician.

[RoseMerry]

Yes and I say, you go Gurl! This thief must be stopped and other thief must understand this is a crime that will not be tolerated!

[TonalCrow]

As currently formulated, copyright law creates rights for original authors that contravene the Constitutional purpose of copyright.

Congress's power to grant copyrights arises from Art.I s.8 cl.8, which says, "[Congress shall have power] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Modern copyright law defines "their...Writings" to include not only the original author's text as writ, but also most forms of so-called derivative works; that is, works that use elements of the original author's work but that also include significant (or even very large) amounts of independent work. By permitting authors to prohibit others from writing derivative works, modern copyright law discourages others' creativity and to that extent inhibits -- rather than promotes -- "the Progress of Science and useful Arts." It also permits original authors to raise prior restraints against works having significant independent expressive content -- something that the courts, in almost any other context, consider plainly to violate the 1st Amendment.

We need to change copyright law to permit most forms of derivative works (including, e.g., reference works like the one this blog discusses) while reserving to original authors only rights that plausibly constitute "their...Writings", such as the right to make a film that hews closely to a writing's storyline. Everything else should be open for interpretation and extension in the marketplace of ideas.

[JacobSinger]

What you describe will never happen and for damn good reason. Fair usage is one thing [and this case is more about that than anything else], but in media age we are all well aware that popular characters, distinct settings and complete worlds as defined by authors are as valuable to those authors as popular brand names are to marketing firms; what you promote is the same as granting the inherent right to use a brand name without permission, and that should NOT happen. Those rights should remain within the realm of copyright as exclusive property of the author.

Example: if you write a novel using the name of my copyrighted characters from my previous novel [and lets pretend it's a bestseller], and your novel is a big hit, it is reasonable to assume that you've just piggy-backed your success off of my property, and it also raises questions about artistic vision and character continuity--and that's clearly no acceptable, unless you have permission to use those elements.

Any writer worth a damn can emulate an existing character and setting and then alter the work enough to avoid copyright infringement. Your suggestions makes the entire situation a free-for-all, and is merely a publishing oriented version of free-market raiding and exploitation.

[TonalCrow]

You've missed the point. I do not believe that the Constitution gives Congress the power to grant the very broad copyright protections you advocate. Art.I s.8 cl.8 instead envisions something quite like the "free-for-all" that you deplore. Remember, cl.8 speaks in terms of "their..Writings", not in the much-broader terms of "artistic vision and character continuity". Also, because copyrights are founded in cl.8, they are not an unconditional form of property like real estate or cash, but a circumscribed form of property that is protected not for the benefits it grants its owner, but to serve a larger interest: "the Progress of Science and useful Arts."

[Sumocat]

"Still, to protect himself, Vander Ark said he insisted that RDR Books include a clause in his contract that the publisher would defend and pay any damages that might result from claims against him." -- It's quite heartening to know the "author" knew the book would violate copyright law. Clearly the publisher is just trying to make a buck on someone else's work.

[jood42]

To get a sense of what's in this book, check out one of the official court documents:

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/83/

The charts on the last two pages are particularly telling. Over 91% of the book's content is quoted directly from Rowling's books. Honestly, how can anyone here defend that as fair use?

[ObamaEdwards]

This will be fascinating. If Rowling had a real iron-clad case, this would never have gone to court. A lot of people assumed this was open and shut, but it is a question of fair use and whether an online compendium is significantly different in purpose when printed and sold. Rowling has been playing the billionaire martyr of late--publicly whining about fan betrayal, then facetiously saying this is a copyright case for ALL authors, then pathetically alluding to her emotionally "difficult" past, back when she was a suicidal non-billionaire. All of this PR fluff will not affect the outcome of the case. But it does put Rowling in a new light. Her claim hinges, in part, on the effect the existing compendium MIGHT have on a FUTURE compendium that Rowling herself MIGHT put together. That's pretty slight. This book, which is not a rip-off of her stuff but an invaluable, much-used, once-Rowling-anointed encyclopedia meticulously compiled and maintained by a former librarian who adores Rowling's work, might take some sales away from a similar project the author has not even begun to write? Rowling seems to be on thin ice here. Whether she wins or loses, she has shown herself to be another selfish, rich celebrity--sad and disappointing for readers who believed that she was better than the greedy human characters she has created.

[jood42]

See above: The publisher has already acknowledged that the book violates her copyright.

Add to that the fact that the "author" is actually planning to publish work written by a community of fans without either crediting or paying them, and you get a fuller picture of who the "author" really is. He's stealing from both Rowling and the contributors to his website.

[Protonk]

It's not a violation o copyright if it is fair use. I'm not sure whey they used that terminology but their defense rides on it. And also the law isn't as clear cut as we would like it to be. the fan book author isn't a white knight. rowling isn't a martyr. The truth lies in the middle.

It is likely that the fan book falls into the category of many other fan books. how many star trek encyclopedias are taken almost completely from the sets of the series and films?

[jood42]

See above. Over 91% of the book was actually written by JKR, not the defendant. How could anyone possibly defend that as fair use?

[Burzootie]

It sounds pretty iron-clad to me, but I don't know all of the facts. If I had to guess, the only reason this has reached the trial stage is precisely because the defendant is conceding infringment and relying on fair use under Section 107 of the Copyright Act. The fair use statute is almost useless as a predictive tool and courts are, understandably, reluctant to grant plaintiff motions for summary judgment because of the fact specific nature of the defense.

Having said that, an earlier case involving an unlicensed Seinfeld trivia game was found to be not fair use. A lot of copyright scholars have critized that case for failing to account for the role of the "work" in analysing infringement and fair use; however, this seems to present less of a problem for Rowling because the Potter works are not as voluminous as the episodes of a television series.

[vandegrasse]

Stupid, greedy cow!

[Rockwell]

Fair use is one thing. Wholesale theft is another. This guy is a hack trying to make a buck off someone else's hard work. I don't care if she's rich. It's her property, not his.

[TrevorAlan]

Hey, its her property, and she actually encourages fans to add their own spin and share as much or more than any artist. But under the non-profit barier. If this guy wants to profit piggybacked on her work he needs to pay to licens it, just like I can't move into your house unles you agreed and I paid rent.

Its not like she's taking bread from orphans, no matter how rich she is. And its not like Disney clinging to ancient Mickey cartoons. She wrote this only a few years ago and she has the right to profit from it, or not profit by denying people to use it.

[heretical_eggs]

It's her property. It SHOULD be an open and shut case.

[Ori]

wtf, if i worked on something for 17 years and some duche comes out and trying to make a quick buck on my hard work i would be Fucking pissed. she has every right.

[scottyboi84]

I hope she wins. This is clearly trying to profit from someone else's hard work and creativity. The publishing company had ought to be ashamed of themselves, and should drop the case and go on to fry other fish. This woman is admirable for the creativity she showcases in her most famous Harry Potter series of books. She also, is a business woman, who did the right thing by getting her work copy written, which she probably thought at the time would protect her endeavors. This average Joe must have known that this was possible or it wouldn't have been put into his contract clause "just in case" the author decided a legal course of action, which now she has to spend her own money, hard earned, to defend something that is already written- the copy rights. I think the 'joe' should just take the free publicity to his website and walk away. Or, at least if the publication is to continue, Rowling ought to be the judge of how much royalties she receives. It is only right, without her creation of Harry Potter, they would not have the chance to be mooching off of her success.

[JacobSinger]

Copyright laws assert that once the material has been published and attributed to the author, the copyright is automatically implied; while you can certainly apply for official copyright documentation, it really isn't a necessity.

That said, I found her position to be rather elitist; she is by her own admission a fan of the website [using it to check her own work by the producer's undoubtedly accurate work], and the book would be an example of a colaborative that would be a technical reference to a set of creative works. It would be hard to imagine that a reasonable agreement on compensation isn't possible through negotiation, so I must draw the conclusion that Rowling has denied access of this sort completely based on copyright.

The most similar author in sales and stature that comes to mind is Stephen King; one only needs to browse the shelves of chain bookstores to see that such reference books exist for King's work, the references availble for his Dark Tower series being a prime example.

For an author who has literally made billions from her fiction to deny a fan the right to create an accurate reference and homage to her work for what is surely an inconsequential sum of profit, to me, is incredibly selfish, not least to her most enthusiastic fans.

[TRYKER]

Rowling had a problem with the quality of the work. She is working on her own compendium that will reflect her style and completeness and be as professional as her books. His work would degrade hers, she wants it done right. Its her baby, she has every right to deny its use by anyone.
This isn't about the money, its about the principle.

[MTGradwell]

"For an author who has literally made billions from her fiction to deny a fan the right to create an accurate reference and homage .. is incredibly selfish"

But she hasn't denied any such thing. The homage exists, in the form of a website. She has praised that site, admitted that she uses it, even describing it as her "natural home". She has not hindered its development. In fact, that's the entire point of her action. She wants free and fair commentary to continue to happen, which won't be the case if by default a precedent is set which allows commentary websites to be spun off (minus the commentary) into derivative books which are little more than a reordering of the original work. If that happens, EVERY author, whether billionaire or not, will HAVE to crack down on "homage". No ifs. No buts. It will HAVE to happen.

Imagine what will happen if the lexicon is allowed. What's to stop someone producing yet another derivative work, based on the lexicon bur reordered somewhat, and divided into seven volumes? With each volume being given a title along the lines of "Harry Potter and the something something?"

[southsideirish]

The fact is, these fan-based lexicons exist for other books as well: Lord of the Rings, The Dark Tower, etc etc. The fact is, it could be her legal right to something about it or not. But is it ethical? These were her fans. These were people who supported her and continuously gave her free publicity, and background commentary to sell her book. I'm an artist myself and working on several creative projects. I just hope that if one day I have the good fortune to acheive even a fraction of the level of success Ms. Rowling's been able to attain, I'll be a little more gracious to those who assisted in my success, instead of turning on them.

[JacobSinger]

But the website is not the contested issue; a book that emulates the website is the issue.

You miss my point and misunderstand the copyright situation. My point is that as the copyright holder, and as the creator who can appreciate the very tedious work required to compile such a reference, she could have given him the right to produce the book at a profit to herself and the reference author. This solution would not give any additional access to others wanting to produce derivative works.

And on more point; given that Rowling is impressed with the depth and accuracy of the online reference, it is a disservice to the website/reference author to characterize his work as being little more than a derivative reordering of Rowling's HP work. Creating a comprehensive reference to any written work is a labor of love at best, or an extremely tedious task at worst.

The question is more about the issue of reference to copyrighted material than it is about copyright infringement; copyrighted works are referred to constantly in print by third parties in a multitiude of ways. Addtionally, a reference to a copyrighted work is not the same as producing imitative work derived from copyrighted work, so I suspect this lawsuit is more about the author's need to control her creation beyond what is normally assumed to be protected by copyright law, and to assert that such a comprehensive reference goes beyond normative practices for referential purposes.