The briefs are filed and here’s what’s going on in them
A few notes on the trial, commentary
More notes on the trial, commentary
Orson Scott Card vs. JK Rowling: He is WRONG (a discussion of Fair Use and the Ideas/Expression Dichotomy)
Link to the decision
Decision Breakdown: Part I, Findings of Fact
Decision Breakdown: Part II, Copyright Infringement
RANT re: Knowing the Facts Before You Take Sides, and other things
Decision Breakdown: Part III, Derivative Work
Decision Breakdown: Part IV, Fair Use, and Part V, Damages and Conclusion
PLEASE NOTE: This is not my "analysis" of the case; this is a summary of the decision as rendered by the court, with a few footnotes of commentary. Analysis to come. :)
Findings of Fact
In which I condense 28 pages of opinion into two pages in Microsoft Word. Conclusions of Law, etc. to follow. Longer quotes from the opinion are in italics.
J.K. Rowling and Warner Brothers (I'll use "Rowling" in the summary, or JKR.)
RDR Books (where Rapoport is referenced I’m just going to say RDR. He's the only one named, anyway.)FN.1
- Copyright infringement and statutory damages (Basis: 17 USC sec. 101 et seq.)
- Fair use (Basis: 17 USC sec. 107)
- Copyright misuseFN.2
- Unclean handsFN.3
Rowling published seven books that sold a gazillion and three copies, WB made the movies, there are two companion books, Rowling announced plans to publish an A-Z encyclopedia for charity and had begun compiling material for it, between them they own all the rights to all these things, yadda yadda.
RDR Books is a U.S. publishing company, Steve Vander Ark is the “attributed author” of the Lexicon, creator of the website, obsessive BNF.FN.4
Lexicon Content and History
Website (which appears to be "undergoing technical difficulty" at the moment)FN.5 consists of cross-listed descriptive lists of spells, characters, creatures, and magical items from the books. There are indices and supplemental things like fan art, commentary, essays, timelines, forums, etc. The website uses “minimal advertising” to offset costs of operation.
Content of the site is drawn primarily from the official HP stuff, and published interviews with Rowling. Vander Ark said some of the other content is drawn from other reference books, but this is “frequently” not cited on the site.
Rowling praised the Lexicon site, the movie folks told him they used it all the time, Vander Ark got BNF treatment, got to visit the movie set, etc.
The Legal Drama Begins
Vander Ark knew Rowling was planning an encyclopedia and asked if he could work on it with her as an editor. She said no. RDR contacted Vander Ark about the Lexicon and possible publication; RDR claims it didn’t know Rowling was planning to write an encyclopedia.
Vander Ark expressed concerns about copyright problems at a meeting with RDR. Prior to August 2007, Vander Ark had developed and circulated the opinion that publishing “any book that is a guide to [the Harry Potter] world would be a violation of Rowling’s intellectual property rights.”FN.6 However, reportedly RDR assured Vander Ark the use would be legal, and agreed to indemnify him in the event of lawsuits (which is why SVA is NOT a party to this lawsuit. He will NOT have to pay any money for losing).
RDR and Vander Ark planned to publish only the encyclopedia, not any of the auxiliary material.FN.7 They planned for a first run of 10,000 copies, to come out at a time that would capitalize on HP publicity. RDR marketed and secured contracts for the books with foreign publishers and, in some statements, implied that Rowling approved of the book.
In Sept. 2007 the Plaintiffs learned about the book and sent a cease and desistFN.8 to RDR. RDR ignored it and continued to market the book. Plaintiffs sent another letter. RDR ignored it and lied to foreign publishers about the possibility of a lawsuit.FN.9 In October, RDR sent WB a cease and desist regarding the Timeline used on the DVDs, saying they’d violated Vander Ark’s rights.FN.10 Plaintiffs kept trying to get RDR to stop publication, and, on Oct. 31, gave up and filed suit.FN.11
Since filing the suit, RDR “revised” the cover of the proposed book, removing a statement that made it look like J.K.R. endorsed the book. They also changed the title and put in some disclaimers re: copyright ownership of Harry Potter, etc.FN.12
The Lexicon makes clear that the only source of its content is the work of J.K. Rowling. The Lexicon has an entry for pretty much everything in the HP world, mostly comprised of cobbled-together primary source material. Citations are spotty in several places (E.g. Dumbledore: no citations in five page entry). Any citations are not page-specific.
The Lexicon contains some commentary and background information, such as etymology of words and Rowling’s allusions to other works. Also comments on the few “flints” (continuity errors) found.
The judge puts this in the category of “non-fiction reference guides to fictional works.” There are a lot of these floating around out there for fantasy works. They vary in quality.
What They Said About It
Rowling testified that the Lexicon took “all the highlights of her work,” and pointed out all the verbatim copying in the Lexicon. Although difficult to quantify, the court said, the Lexicon indeed contains a troubling amount of direct quotation or close paraphrasing of Rowling’s original language, often included without quotation marks, making it difficult to know which words are Rowling’s and which are Vander Ark’s.FN.13 Rowling stated that if there were quotes around the things that should have them, most of the book would be in quotes. Many examples are given.
(Opinion Fn. 8 – the court found Plaintiffs’ charts not to be consistent in portraying amounts of language copied, so is relying on the underlying texts for this analysis.)FN.14
Regarding summaries of certain scenes or key events, which Rowling said were “plot summaries” and RDR said were character studies or analysis, the court likens them to synopses or outlines of the narrative revolving around certain characters or events.FN.15 They often contain a skeleton of the plot as well.
Finally, Rowling established extensive copying from the two companion books. Regarding the “Chudley Cannons” entry, Vander Ark admitted, “In that particular case, we pretty much caught it all.”FN.16
FN. 1: Steve Vander Ark is NOT a party. See: RDR’s indemnification agreement with him.
FN. 2: HEEHEEHEE. (*groan*) I laugh because otherwise I'd stab something. The audacity!
FN. 3: See FN. 2.
FN. 4: Big Name Fan.
FN. 5: I.e. "Being sued and losing said lawsuit, crap."
FN. 6: OH, THE IRONY.
FN. 7: I.e. any of the stuff that might actually have made this a critique or commentary, rather than blatant copying of the source material with a few random non-copied things thrown in.
FN. 8: Lawyer letter that translates to, “STOP IT NOW, OR WE WILL PUT ON OUR SERIOUS FACES AND FILE LONG PAPER THINGS WITH THE COURT.” It frequently functions effectively by scaring the bejesus out of any ordinary Joe.
FN. 9: He totally did! It says so right in the Finding of Facts! He’s a bold one, that Rapoport.
FN. 10: See: Iron Man's Brass Balls for the phrase that comes to mind when I read about Rapoport's blatant lies to foreign publishers and attempts to chide WB for infringing on Vander Ark's rights.
FN. 11: No treat for RDR this year! Here, have some razorblade apples instead.
FN. 12: WAY too little, too late. Just makes them look worse, really.
FN. 13: Legal ZING! That’s never a good thing. What DID they teach in school when SVA was attending, anyway? Seriously, why do people never get that ATTRIBUTION = IMPORTANT.
FN. 14: Aw, but I loved the charts. They gave us so much fodder for commentary and amusement over at Fandom Wank!
FN. 15: So, like, those book reports we used to do in elementary school where we just regurgitated the book, essentially?
FN. 16: BAM!
Stay tuned for legal discussion...Part II: Conclusions of Law, Copyright Infringement