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HARRY POTTER LEXICON, Part II: Conclusions of Law, Copyright Infringement

For ease of reading, a collection of Lexicon Links from Foresthouse Central:

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. :)


In which I condense ten pages of the opinion into 2.5 pages in Word!
Conclusions of Law
Part I: Copyright Infringement
 Can Plaintiffs prove a prima facie case of copyright infringement?
Two elements are needed to prove this:
Element 1: ownership of a valid copyright
  •  There is no dispute regarding the rights held re: the seven novels and the two companion books. They are registered, there is paperwork, etc. (Even though that is not required for a valid copyright, it certainly makes things quicker in court.)
  • HOWEVER, Defendant disputes Rowling’s ownership of copyrights in “The Daily Prophet” newsletters, and WB’s ownership of the video game rights.
    • Plaintiffs submitted the documents showing they owned the rights with their post-trial briefs.
    • HOWEVER, they can’t establish infringement for those works because they weren’t entered into evidence at trial; so the opinion deals only with infringement of the seven books and two companion books. FN.1
ELEMENT 1 ESTABLISHED (for the 7 books, 2 companion books).
Element 2: copying of constituent elements of the work that are original. For this, they must establish two parts.
Part A: Plaintiff must establish actual copying by either direct or indirect evidence.
  • There is no dispute that Vander Ark actually copied from JKR’s copyrighted work
Part B: Plaintiff must establish that the copying amounts to an improper or unlawful appropriation.
How to prove Part B:
Plaintiff demonstrates that copying is actionable by showing that the second work bears a ‘substantial similarity’ to protected expression in the earlier work.FN.2
  • Defendant argues that the Lexicon is not ‘substantially similar’ to the Harry Potter books.
LEGAL TEST used by this court for ‘substantial similarity':
“whether the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred.”FN.3
  •  quantitative  = amount of the work that is copied
    •   the court considers the amount of copying not only of direct quotations but also of all other protectable expression in the original work.
    •  Court says where (as here) a work is “wholly original” (not mixed with unprotected elements) a lower quantity of copying is sufficient.
      • Fact: 450 pages of the Lexicon’s manuscript stem from the 4,100 page series. Most of the entries contain copied material. The Lexicon copied most of the two companion books, but intentionally left some things out to avoid copying the whole thing, since they were “essentially encyclopedias already.”
        • The court uses an aggregate analysis of the whole story arc (rather than going book-by-book) and finds substantial similarity. This quantum of copying is sufficient to support a finding of substantial similarity where the copied expression is entirely the product of the original author’s imagination and creation.
  • It is quantitatively sufficient.

  • qualitative = copying of protected expression as opposed to unprotected ideas or facts. (See my Orson Scott Card vs. J.K. Rowling entry for a discussion of the ideas/expression dichotomy and fair use.)
    •  Fact: The Lexicon gets its content from the creative, original expression of the Harry Potter books.
      •  Fact: All of the Lexicon entries contain fictional facts created by Rowling.
        • Court says that such invented facts constitute creative expression protected by copyright because they come from the imagination of the original author.
        • Court holds that this expression is presumptively entitled to protection. 
          • Defendant argues that the “fictional facts” are used in their “factual capacity” to report where to find information, to try to differentiate this from another case (Castle Rock, the Seinfeld trivia book case) which was using the fictional facts of Seinfeld to entertain. This argument belongs in the section on whether the work is transformative, not whether it is substantially similar to the original work.
        • Defendant also argues that the order of facts is different; court holds this does not preclude a finding of substantial similarity.
          • The standard is not whether the original work could be recreated from the second work, but whether the two are substantially similar.
          •  Also, the similarity test considers “localized similarity in language” (i.e. quotes or paraphrases) even if these similarities are out of order.
          • The court notes that several entries re-tell stories from the book, further supporting the finding of substantial similarity.
  •  It is qualitatively sufficient.



Plaintiffs have established a prima facie case of infringement.




FN. 1: Plaintiffs’ Lawyers: “D’oh!”


FN. 2: Substantially similar is a legal term of art with a specialized definition and legal test.


FN. 3: The court chose this as the best test for substantial similarity in this case, given the different genres/media of the two works. There are other tests, but they would not be easy to apply here because of the differences in the format/genre of the works.



Next up: Derivative work?
Tags: copyright, harry potter, law, lexicon, the internet iz serius biznes

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