Law and Magic Blog

Harry Potter and Copyright Law

Jay Dougherty, one of the contributors to the Law and Magic volume, is quoted in this thr.com article about the "Harry Potter Lexicon" lawsuit. He points out that a crucial question is the transformative nature of the use of the original materials.

In determining whether use of copyrighted materials is "fair use" a court looks at four factors:

1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

Has Mr. van der Ark "transformed" or created something new out of the materials Ms. Rowling created? Or has he just copied hers?

But another question is the effect that the Lexicon will have on Ms. Rowling's sale of her proposed Lexicon or Encyclopedia. Will avid Potterites fail to buy her title because they've bought Mr. van der Ark's?

I don't know much about the first question; I haven't examined the Lexicon website that closely. But I can venture an answer to the second, having been around some Potterites. No. I cannot believe that those folks wouldn't buy ANYTHING Ms. Rowling writes. And after this lawsuit, they'll be even more curious to see what her book contains, and perhaps much less interested in the RDR title. So there.

FindLaw's Julie Hilden on the J. K. Rowling/RDR "Harry Potter" Lawsuit

FindLaw's Julie Hilden discusses the Rowling/RDR lawsuit here, evaluates the claims, and finds that Ms. Rowling has a good chance of winning her case.

More Harry Potter Testimony

Steven VanderArk testified April 16th in the Harry Potter lawsuit, and was apparently quite emotional on the stand, according to New York Times reporter Anemona Hartocollis.  Meanwhile, the blogosphere abounds with Potterisms, or at least titles: Harry Potter and the Supernatural Courtroom (from Gawker); Harry Potter and the Presentation of Power (from Mediabistro); J. K. Rowling and the Courtroom of Muggles (from the New York Times's Jennifer 8 Lee); Harry Potter and the Testimony of Fire (from MediaBistro); Fairuse Obliteratus (from Ars Technica); Harry Potter Goes to Court (P2P.net).

According to this AP account, the judge in the Harry Potter "Lexicon" case has told the parties they should try to settle their differences out of court. Judge Robert Patterson told Ms. Rowling and RDR Books that he believed that the case could "with imagination" be settled out of court. Both sides rested their case Wednesday. Read more here.

Here's an account of what happened on Wednesday. Ms. Rowling tried to be conciliatory--well, sort of--but it apparently fell flat.

Ms. Rowling told the judge in Federal District Court in Manhattan that she had been misunderstood. Mr. Vander Ark watched from the back of the room as the trial drew to a close.

“I never ever once wanted to stop Mr. Vander Ark from doing his own guide — never ever,” she said as she took the stand for the second time in the three-day trial, as the last rebuttal witness. “Do your book, but please, change it so it does not take as much of my work.”

The judge assured the courtroom that he really loved literature. But the lawyers soldiered on.

Ms. Rowling’s lawyer, Dale M. Cendali, concentrated on marketing, saying the guide could hurt Ms. Rowling’s ability to sell books and Warner Brothers’ interest in marketing movies and merchandise related to Harry Potter.

If the guide were published, Ms. Cendali said, she envisioned readers saying: “‘You know what? I guess I don’t really need the rest of the Harry Potter books because I just read the big giveaways.”

...

In his closing arguments, Anthony Falzone, another lawyer for the publisher, said that under the law, what mattered was not the quality of the book but whether it transformed Ms. Rowling’s material in some way....Mr. Falzone said that if spoiling plot points was a reason to suppress the book, as Ms. Cendali argued, then: “It’s spoiled all over the place. It’s everywhere. You’d have to suppress it all.”

In April 15th's New York Times, Motoko Rich further explores the Rowling lawsuit against RDR Books, which seeks to publish that Harry Potter encyclopedia by Steven VanderArk. Here's background: The J. K. Rowling lawsuit over Steven VanderArk's encyclopedia of everything Harry Potter, based on his website, began April 15. Ms. Rowling, the author of the fabulously famous and bestselling Harry Potter books, claims that Mr. VanArk's printed work infringes her copyright. Mr. VanArk (who's not being sued) and his publisher, the small RDR Books, which is, say it is a "reference guide" to her works, and as such is protected by the First Amendment. The RDR website provides links to its brief and other material filed in the case. Read more in a New York Times article here.

The Times offers a Harry Potter lawyercon (a guide not only to all things Potterish, but to J. K. Rowling's courtroom bouts, won and lost) here.

J. K. Rowling's Testimony, Day One

Lawyer/magicians should probably have been on call yesterday during J. K. Rowling's testimony concerning that Harry Potter Lexicon, according to an article in today's New York Times by Anemona Hartocollis (and yes, that really is the reporter's name). The publisher's lawyer "suggested in his opening statement that Ms. Rowling was trying to exert a bit of the dark arts herself, by testing whether she `has the power to make the Lexicon disappear from our world.'" Ms. Rowling herself tried to differentiate between the organization of the lexicon (and its content) which she has approved in the past and her reaction to it now, which is quite negative.

It was the ultimate irony, Mr. Rapoport’s lawyer said, that the same Web site that Ms. Rowling was now denigrating was one that she had admitted using herself a time or two to check facts.

Ms. Rowling conceded that she had given a “fan-site award” to Mr. Vander Ark’s Web site in 2004, but she said she had given the award only “as a kind of A for effort.”

Harry Potter, Esq.

It's J. K. Rowling v. RDR Books, which proposes to publish The Harry Potter Lexicon, by Steven VanderArk, based on Mr. VanderArk's popular website of the same name. Ms. Rowling says that doing so would infringe her intellectual property rights, and she wants an injunction. RDR Books says allowing her to prevent the book's publication would infringe its (and Mr. VanderArk's) right of free speech. Showing this matter isn't just a quibble over Quidditch, it's on with the battle in a Manhattan courtroom today. Read more here in a New York Times article by Motoko Rich.

Harry Potter, College Student

Patrick Lee, a freshman at Yale, writes for CNNU about Potter-themed courses at universities and colleges around the United States here.

Droit Moral, IP, and Harry Potter's World

Gary Pulsinelli, University of Tennessee College of Law, has published "Harry Potter and the (Re)Order of the Artists: Are We Muggles Or Goblins?" Here is the abstract.

In Harry Potter and the Deathly Hallows, author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the “muggle” world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property and moral rights. Because of the way these parallels have been developing and growing, we seem to be becoming more goblinish in our willingness to recognize ongoing rights in artistic objects, including allowing the artist to collect a commission on subsequent resale of the work. Practical and social considerations suggest that we are unlikely to go as far as recognizing a permanent personal right in the creator that lets him or her reclaim such an object after a sale or other transfer is made. However, we are moving closer to recognizing some forms of the collective right that the goblins actually seem to demand, a cultural moral right in important cultural objects that enables the descendants of that culture as a group to demand the return of the object. Thus, we muggles may not be as far from the goblins as we may have at first believed.

Download the entire paper from SSRN here.

Indian Court Dismisses J. K. Rowling Lawsuit

An Indian court has dismissed the copyright infringement lawsuit that J. K. Rowling and her publisher brought against organizers of a religious festival. The organizers had created a replica of the Hogwarts School, Harry Potter's alma mater, for use during the festivities of Durga Puja, which ended October 26. Judge Sanjay Kishan Kaul did tell the organizers, however, that permission to display the structure ends with the festival, and that they could not use any of Ms. Rowling's characters from the books without her permission. Read more here.

A Muggle Lawyer Chimes In on Harry Potter

Andrew Fois, a lawyer in private practice in Washington DC, opines on law and magic in the wizarding world of Harry Potter in Legal Times in an article called "Due Process for All Wizards" here. Here's an excerpt discussing the film "Harry Potter and the Order of the Phoenix."

One example of the legal system occurs early in “Phoenix,” when Harry stands trial for violation of the ban against underage use of magic. His use of the Patronus Charm was in response to an unprovoked attack upon him and his cousin by two Dementors, the dangerously aggressive guardians of Azkaban prison who inhale the souls of their victims. The trial is scheduled only after strings are pulled with the Ministry of Magic, which had already summarily found Harry guilty and imposed a sentence of expulsion from school. No defense counsel would have been appointed had Hogwarts’ headmaster, Albus Dumbledore, not intervened.

He further criticizes the workings of the justice system.

For all their magic, the citizens have a markedly unreliable criminal justice system. For example, we learn in Harry Potter and the Prisoner of Azkaban that the government has wrongly imprisoned Harry’s godfather Sirius Black for life on charges of mass murder. Other miscarriages of justice take place in the sixth and seventh books, in which the Ministry arrests innocent wizards and witches in its propaganda-based crackdown on potential supporters of the Dark Lord. The low esteem in which the law is held is evidenced by Harry’s friend Hermoine Granger when she rejects the suggestion of a legal career, explaining that she wants “to do some good in the world.”

Interesting reading, although he might want to check out prior writing on the subject. See for example the recent symposium at Texas Wesleyan.

No Charges for French Teenager Who Posted Unauthorized Translation of Latest Harry Potter Novel

That French teenager who posted his own translation of the latest Harry Potter novel will not face charges, French officials announced. A deal has been worked out with J. K. Rowling. Quelle chance for the young man, but no word in this BBC story on whether he had to take his version off the net. One would think so.