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Warner Brothers and J.K. Rowling vs. RDR Books re: Publication of the HP Lexicon

So in case you've missed it, Warner Brothers and J.K. Rowling sued RDR Books because RDR was planning to publish an encyclopedia based on the content of the online site run by Steve Vander Ark, the Harry Potter Lexicon. SVA isn't a named party, even though he is basically the impetus for this lawsuit - he's a BNF who created the site. JKR, at one point, awarded him a commendation for the website being so comprehensive (something she has given to other fan sites as well). SVA apparently took this to be a Mark of Approval for Anything He Wants to Do, which is what caused this lawsuit. The site essentially takes stuff from the HP books/movies/world and compiles it in various ways for easy reference (i.e. lists of spells, Quidditch rules, info on magical beasts, etc.). SVA now feels that he has the right to take this compliation of information, provided on a free fansite, and use it to make a profit by publishing a print version of the Lexicon. WB and JKR are trying to protect their copyrights and trademarks, and JKR also has some arguments re: right to privacy, etc. RDR is arguing fair use.

The filings for the case are public and have been posted at Justia.com. cleolinda has been following the case since its inception and has been keeping us all up to date with it via Fandom_Wank (oldest news is at the bottom, so scroll down to start from the beginning and move towards the latest news).

RDR just filed their Answer to WB/JKR's Amended Complaint, and cleolinda asked me to take a look at it to see if there was anything interesting going on there. For ease of reading, here's an organized account of my comments and her replies that were originally posted in the comments to one of her LJ entries (this is much easier to read):

In response to MelissaTLC's initial and correct observation that the Answer is very repetitive and replete with denials, a fun bit of legal trivia:

The Lawyer-y Reason why they are either denying or claiming not to have enough knowledge of every single allegation is that The Federal Rules of Civil Procedure, Rule 8 requires specific denials or allegations that one lacks the knowledge of something (see (b)(2) and (5)) or the allegation is considered to be admitted by the party ((b)(6)).

[Clarification: RDR denying something does not mean they are committing perjury. What it means is that those issues will have to be dealt with during the trial. I.e., if RDR admits something, it's not an issue. If RDR denies or says they lack the knowledge of something, then it will come up in the trial. During which depositions issued under oath and sworn witnesses will be used in order to try to prove various things. If something in the depositions turns out to be a lie, or the sworn witnesses lie, THAT is perjury.]

In response to the request to look over the Answer (WB/JKR are Plaintiffs; RDR Books amd unnamed "Does 1-10" are Defendants):

I tried to just kind of pull out the non-routine, interesting things that jumped out at me. As cut and pasted from the Word doc I was using to go through this:


OK, I finally sat down and read through the amended complaint and answer. First, I have to just note that I was ridiculously amused by the summary of the HP world in the complaint – trust lawyers to make it sound almost boring! (Amended Complaint para. 15-16.)

Also, paragraph 42 of the amended complaint! Hilarious! Anyway. By relevant paragraph, some comments:

(But first, DISCLAIMER because lawyers are full of disclaimers: the below commentary does not constitute legal advice to any parties or potential parties to any actions and should not be relied on in legal matters. And yes, it is a bit snarky. And no, this is not how I would write when doing Actual Legal Work. But it IS an accurate representation of my opinions on the amended complaint and the answer in this case after one read-through. Glad we've got that all settled.)

And now, by paragraph:

1. Basically Defendant denies that the book or cover is infringing, which is the theme repeated throughout the Answer, of course – I like how they note that the "revised" cover won’t infringe – I wonder when they "revised" it...

[cleolinda: "I can at least answer this. Kind of. Because I'm not going back through and searching all the Justia files at this time of night. But! At some point, in those files, RDR submitted a revised cover as part of their filings. So it was very much, you know, an "Only because you made us" kind of move." Here's the filing.]

2. I really enjoy how Defendant denies this paragraph categorically – they're saying they didn’t know she ever intended to publish an encyclopedia, and they didn't know about the charity books? When there's info from those books on the Lexicon site? Indeed.

3. Amazing how none of those cease and desist letters got through, according to Defendant's denial here...

5. It’s interesting how Defendants never denied that their book is going to be a "400 page dictionary taken from the world of Harry Potter." Certainly that allegation does not fall into the category of "over-heated legal argument" as they contend the rest of the paragraph that they didn't address does.

9. RDR Books denies its own website? With a Lexicon case update on the front page?? Hee!

14. The selective denials here are interesting. Surely Defendant knew the story of JKR and her writing-while-poor! Everyone knows that story. Why deny it?

27-28. I love how, because it's RDR books and not SVA himself being sued, they can deny they know much of anything about him. I mean, yes, they should try to deny it for their own sake in this losing legal battle, but it's really funny, because you KNOW they know some of this stuff. Unless they're trying to pretend SVA never had any interactions whatsoever with anyone at RDR regarding the book that is linked on their website, which he worked on compiling.

29. I hope JKR's lawyers have a copy of the Publishing Marketplace ad noting where the Lexicon rights had been sold so they can go, "Hah! See? AUSTRALIA, bitches."

30. P.S. "And ENGLAND, bitches."

[cleolinda: "If they don't, I do."]

36. As noted in TLC’s summary, this is a more substantive point than most of the stuff going on here – Defendant is denying it sent a cease and desist letter to WB re: the HP timeline on the DVDs, which Defendant had originally contended was taken from the Lexicon and used by Warner Brothers.

38. The Lexicon is an "original literary reference guide"? HEE.

40. This raises an interesting point. Technically, Defendant may be correct in stating that it did not create a "derivative work." IF, as they state, they are basically trying to provide a complete and detailed collection of all the facts, data, etc. in the HP world, and they are NOT including any of the fanfiction (which would be a whole legal morass in itself), original work, etc., then there is no original material in the book, which is part of the requirement for a derivative work. What they might actually be creating in that case would be a collection of information. However, only the original parts of this sort of collection (e.g. editorial selection/creative choice of what to include and exclude) are copyrightable. The fun point here is, if indeed RDR's book is supposed to be complete in every aspect of the HP world, as it was billed at one point, then it is merely an organization of all HP data, with no element of editorial selection, and it is most likely not, in itself, copyrightable. So, in other words, if that’s the character of the book, the minute it’s published we could all copy it for free and they wouldn’t have a decent claim. (Though most likely they’d try to make one...) If it actually does contain original information of any sort, making it a derivative work, only the original part of it would be copyrightable. This is assuming they are allowed to publish in the first place.

Helpful Links re: derivative works and collective works:

Copyright Office on Derivative Works

The Feist case and Wikipedia summary.

[cleolinda comments: "... My head hurts." Hee.]

[My attempt to make it clearer:

I know the whole what-is-copyrightable thing is complex - the basic idea is, say Person A has a book that has, oh, I don't know, a male-centric viewpoint, and Person B then takes that book and does a critical analysis of that book from the perspective of a woman, commenting and annotating and doing all of those good critical analysis things. Is it a derivative work? Yes, because it contains original material that is based on the original work and could not exist (and make sense) without it. Is it copyrightable (assuming it's considered fair use or there is a license/permission to use Person A's work)? In part. Person A still owns the copyright on the original material. However, Person B now owns the copyright on the annotations, commentary, and other added material. (This is a very cut-and-dried no-grey-areas attempt to show how this would play out, btw. No case would be completely cut-and-dried in real life).

In another example, regarding collective works, let's say Persons A prints the phone book alphabetically. Person B comes along and takes all the information and prints it by region instead. Person B has done nothing more than reorganize data, and Person B's work does not contain new information. On the other hand, if Person B is a restaurant critic who goes through the phone book, picks out information on the best, in his opinion, restaurants listed in the book, and then publishes that information, he may have a copyrightable collective work - because he has made editorial choices as to what information to include, and has thus altered the content and nature of the work in an original way.

Regarding RDR/SVA, if they do not make editorial selections, but instead just pull every fact they can out of HP and reorganize it, they're not really creating anything new. At the same time, this is a bit more grey than what I've just outlined, merely because the format is so different (fictional work versus organized encyclopedia of fictional "facts.") Still, even with a different format it wouldn't really contain that much originality. Think of it as, "If we take out what JKR did, what would be left? Not much, in this case.

BTW, the point about whether RDR's encyclopedia would be copyrightable isn't really central to the arguments they're making in the cases; it's just an interesting point regarding the potential copyright of RDR's Lexicon if published. What *is* important to the case is determining what kind of work this is and how much of it is original, etc.]

42. I hope like hell that someone has a screencap of that statement from the Lexicon site, because it is hilarious in the context of this case. At any rate, right now the site at least says, "NO PART OF THIS PAGE MAY BE REPRODUCED IN ANY MANNER WITHOUT PERMISSION" and that is just made of fail considering this lawsuit.

[cleolinda's Google-fu saves the day: The amusing statement is still there.]

47. Ah, so now we discover when they changed the cover design – after the lawsuit. Shock!

66. Just for fun, here is the statute WB is citing in this allegation about infringing JKR’s right to privacy: http://www.supnik.com/ny51.htm

WB/Rowling would rely on this: "A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person...is guilty of a misdemeanor."

RDR would likely base its argument on this provision: "nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using...the name, portrait or picture of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait or picture used in connection therewith."

In the end, it depends on how they are using her name.

67-69...appear to be missing.

Affirmative defenses (burden of proof on the Defendant):

81. Some quick and dirty definitions:

Equity – legal principles of fairness – relief in equity is generally in the form of injunctions or decrees to act or cease an action (as opposed to civil remedies like money damages).

Laches – an equitable defense that is based on a delay in the other party asserting its rights. In time-sensitive matters, which could include book publication, the Defendant might argue that an injunction at this point could cause great harm to Defendant that the Plaintiff could have avoided if asserting rights earlier.

Waiver – voluntary surrender of right or privilege. They can be express or implied. Defendant would argue an implied waiver based on facts alleged about JKR's commending the site, etc.

Estoppel – sometimes explained with the short statement of "reasonable reliance." If Defendant had an expectation based on Plaintiff's statements or actions, and reasonably relied on that expectation, and acted on that reliance, and would suffer a detriment if the expectation were false, Plaintiff could be estopped from enforcing legal rights. Here I assume RDR is referring to the things SVA said about how JKR endorsed his site, gave him an award, etc.

82. Doctrine of Unclean Hands – (I love the name of this one) – basically, that Plaintiff is acting unethically or in bad faith, and so should not be able to obtain an equitable remedy. Honestly, I think RDR has some nerve asserting this against JKR. Oh, irony.

[cleolinda: "Yeah, auralan and I were discussing this on the FW entry--I don't know if this is just that WB are Big Meenies, or if they're referring to the timeline even after they withdrew that complaint, or... what."]

[My thoughts: Re: the Doctrine of Unclean Hands, RDR may use a number of arguments to assert this - one possibility is that they'd argue that JKR misrepresented how she would feel about the Lexicon being published by commending the website. [This is akin to the reliance argument.] Another would be the argument that WB misrepresented what actions it was going to take re: the publication until right before the publication was going to happen, (i.e. the whole waiting-to-file-suit thing) and thus purposely caused RDR to sustain harm. Another would be, as mentioned, that WB used part of something Lexicon created (if it did), and now it is suing because Lexicon is trying to use part of something WB created. The thing about this argument is that Defendants will have to prove it, because they have the burden of proof.]

84-85. Fair use/First amendment – I am sure this has already been discussed, and I am le tired, but I’d be glad to discuss it in future sometime (I already posted about it on SF once I think, but goodness knows where that post is now – somewhere pages and pages back in the thread).

86. Complete bull. Plaintiff didn’t give RDR permission to publish a book when she commended SVA on his free website. Whatever, RDR.

87. Copyright misuse – only found in case law, not in the Copyright Act. It’s related to the doctrine of unclean hands. It can occur when a party uses restrictive licensing practices, contrary to public policy.

8...OMG I’m too tired to do any more right now. Anyway, the rest is all legal arguments, not new facts or anything.

So there it is, the quick-and-dirty info on the complaint and answer in the HP Lexicon case. Hope I haven't confused people too much! (Other lawyers, feel free to weigh in. rivian, I may be looking at you, here. ;) )
Tags: cleolinda, copyright, fandom wank, harry potter, law, the internet iz serius biznes

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