RDR Books, based in Muskegon, Michigan, won’t be publishing Steven Vander Ark’s much-anticipated “Harry Potter Lexicon.” Not any time soon, and not any time. A US District Court judge in Manhattan has issued a permanent injunction against publication of the work, finding that it infringes copyrights in the popular Harry Potter series of children’s novels.

Harry Potter’s creator J. K. Rowling and her publisher Warner Brothers Entertainment sued RDR and Vander Ark last year to stop publication of the lexicon, claiming that it infringed copyrights in the overwhelmingly popular Harry Potter series of books. Warner Brothers Entertainment, Inc. and J.K. Rowling v. RDR Books et al, (USDC SDNY, Case No. 07-CV-9667). (A copy of the original complaint in the “Harry Potter Lexicon” case can be found here.) US District Court Judge Robert Patterson ruled earlier today that Rowling had proved her case: publication of the “Harry Potter Lexicon” would cause her irreparable harm as a writer.

A lexicon is a glossary or reference work organized like an encyclopedia or dictionary, usually in alphabetical order. In Vander Ark’s case, the “Harry Potter Lexicon” contained entries referencing and defining creatures, characters, place names and spells from the novels, and was a print-based version of his popular website HPL: The Harry Potter Lexicon.

Judge Patterson ruled that the “Harry Potter Lexicon” constituted copyright infringement of Rowling’s works. Even in cases of copyright infringement, a “fair use” defense frequently applies to allow portions of a copyrighted work to be used to facilitate specifically approved purposes — includes educational and teaching use, news reporting, formal literary criticism and inquiry, and parody. The Court found no “fair use” in this case. According to a Yahoo News article, Patterson’s ruled states:

because the Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same and thus deplete the incentive for original authors to create new works.

Stingy minimum damages award speaks volumes
I’m completely underwhelmed by the damages awarded in the case. $750 for each of the seven novels about the boy wizard and $750 each of the two companion books for a total of $6,750. And for good reason: the 1976 Copyright Act now allows for damages of up to $100,000 for each act of infringement. Judge Patterson is certainly sending a message here about the spirit of the law, even if it contradicts his ruling on the letter of the law.

Fair-use reference, or derivative work?
Concordances and lexicons of authors’ works have traditionally been allowed under the fair-use defense to copyright infringement — with some exceptions. But copyright infringement is a highly facts-and-circumstances-dependent legal analysis: discussing copyrighted work and making a “transformative use” of the material is allowed, but cutting and pasting sections of a copyrighted work to assemble them into a reference work arguably could create a “derivative work” under section 101 of the Copyright Act, which is an exclusive right reserved to the copyright owner. Rowling’s lawyers argued against a finding of fair use, stating that the “Harry Potter Lexicon” adds no commentary or criticism, and makes no other transformative use of Rowling’s creation: it “takes too much and does too little.”

Judge Patterson touched upon the distinction between a reference and a derivative work in his ruling.

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…. [The] Lexicon [however] appropriates too much of Rowling’s creative work for its purposes as a reference guide.

I’ll be analyzing the ruling in Warner Brothers Entertainment and J.K. Rowling v. RDR Books tonight to see what kind of precedent this decision contains about the boundary between reference and derivative work.

Warner Brothers Entertainment, Inc. and J.K. Rowling v. RDR Books et al, (USDC SDNY, Case No. 07-CV-9667).

See Ruling of September 8, 2008 – Warner Brothers Entertainment and J.K. Rowling v. RDR Books et al (the “Harry Potter Lexicon” case) for a copy of the decision in PDF.