Copyright Law Updates | New Judicial Opinions
September 22, 2008
Harry Potter Lexicon Infringes Copyrights of Author J. K. Rowling and Warner Bros.
Warner Bros. Entertainment Inc. v. RDR Books
No. 07-cv-09667, U.S. District Court for the Southern District of New York, 9/8/2008
In a dispute regarding the world-renowned "Harry Potter" book and film series, the U.S. District Court for the Southern District of New York ruled that a planned publication of an encyclopedia about these works infringed the copyrights of author J. K. Rowling and Time-Warner, Inc. unit Warner Bros. Entertainment, Inc. The suit alleged that defendant RDR Books ("RDR") sought to publish a print edition of the Harry Potter Lexicon ("Lexicon"), a website that provided a compendium of all things related to the series, and that such publication would take away the future market for a similar compendium that Rowling plans to write. Defendant raised the defense of fair use, but the District Court rejected this argument. Citing a substantial amount of verbatim copying, the District Court found that the Lexicon appropriated too much of Rowling's creative work for its purposes as a reference guide. Finding that publication of the Lexicon would cause irreparable harm to the sales of Rowling’s companion books, the District Court issued permanent injunction to Plaintiffs. The District Court likewise granted Plaintiffs' request for statutory damages. Since the Lexicon had not been published and thus Plaintiffs have suffered no harm beyond the fact of infringement, the District Court awarded Plaintiffs the minimum award under the statute for each work with respect to which Plaintiffs have established infringement. Plaintiffs were entitled to statutory damages of $750.00 for each of the seven Harry Potter novels and each of the two companion books, for a total of $6,750.00.
Plaintiffs Warner Bros. and Rowling commenced this action against Defendant RDR Books, alleging copyright infringement pursuant to 17 U.S.C. §§ 101 et seq., among others, and seeking both injunctive relief and damages. On the other hand, RDR pursued defenses and affirmative defenses of copyright fair use under 17 U.S.C. § 107.
By way of background, Plaintiff Rowling is the author of the highly acclaimed Harry Potter book series. Opinion, p. 2, citing Tr. (Rowling) at 43:6-7, 47:17-20; Pl. Ex. 25 (Rowling Decl.) at ¶1. Written for children but enjoyed by children and adults alike, the Harry Potter series chronicles the lives and adventures of Harry Potter and his friends as they come of age at the Hogwarts School of Witchcraft and Wizardry and face the evil Lord Voldemort. Id., citing Pl. Ex. 25 (Rowling Decl.) at ¶ 2. It is a tale of a fictional world filled with magical spells, fantastical creatures, and imaginary places and things. Id., citing Tr. (Vander Ark) at 346:1-6; 371:1-22; id. (Sorensen) at 513:6-14). Defendant RDR is a Michigan-based publishing company that sought to publish a book entitled “The Lexicon,” the subject of this lawsuit. Steven Vander Ark, a former library media specialist at a middle school in Michigan, is the attributed author of the Lexicon. Id., p. 5, citing Def. Ex. 502 (Vander Ark Decl.) at ¶ 1). He is also the originator, owner, and operator of “The Harry Potter Lexicon” website, a popular Harry Potter fan site from which the content of the Lexicon is drawn. Id. at ¶ 30. The Lexicon is an A-to-Z guide to the creatures, characters, objects, events, and places that exist in the world of Harry Potter. The Lexicon manuscript was created using the encyclopedia entries from the Lexicon website. Id., pp. 14-15, citing Tr. (Vander Ark) at 365:1-5; Def. Ex. 502 (Vander Ark Decl.) ¶30.
As part of its defense, Defendant acknowledged actual copying but disputed that the copying amounted to an improper or unlawful appropriation of Rowling’s works. Defendant argued that Plaintiffs failed to establish a prima facie case of infringement because they have not shown that the Lexicon is substantially similar to the Harry Potter works. The District Court disagreed, however. Specifically, it stated that, notwithstanding the dissimilarity in the overall structure of the Lexicon and the original works, some of the Lexicon entries contained summaries of certain scenes or key events in the Harry Potter series. These passages, in effect, retell small portions of the novels, though without the same dramatic effect. Together, these portions of the Lexicon supported a finding of substantial similarity. Id., pp. 37-38. Under these circumstances, the District Court found that Plaintiffs established a prima facie case of infringement.
Defendant then contended that even if Plaintiffs have shown a prima facie case of infringement, the Lexicon was nevertheless a fair use of the Harry Potter works. The District Court again disagreed, citing the four factors of fair use as codified at Section 107 of the Copyright Act of 1976, to wit: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. Id., pp. 41-42, citing 17 U.S.C. § 107.
Applying these principles, the District Court held that the four factors, weighed together in light of the purposes of copyright law, failed to support the defense of fair use in this case. The first factor did not completely weigh in favor of Defendant because although the Lexicon has a transformative purpose, its actual use of the copyrighted works is not consistently transformative. Without drawing a line at the amount of copyrighted material that was reasonably necessary to create an A-to-Z reference guide, many portions of the Lexicon took more of the copyrighted works than was reasonably necessary in relation to the Lexicon’s purpose. Id., p. 62. Thus, in balancing the first and third factors, the balance was tipped against a finding of fair use. The creative nature of the copyrighted works and the harm to the market for Rowling’s companion books weighed in favor of Plaintiffs. The District Court noted, “In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit readers and students; but to borrow from Rowling’s overstated views, they should not be permitted to “plunder” the works of original authors (Tr. (Rowling) at 62:25-63:3), “without paying the customary price” Harper & Row, 471 U.S. at 562, lest original authors lose incentive to create new works that will also benefit the public interest Tr. (Rowling) at 93:20-94:13.” Id.
With regard to Plaintiffs’ application for injunctive relief, the District Court likewise ruled in favor of Plaintiffs. The District Court found that publication of the Lexicon would cause irreparable harm to the sales of Rowling’s companion books, all the elements of which were replicated in the Lexicon for a similar purpose. Readers would have no reason to purchase the companion books since the Lexicon supersedes their value. Id., p. 64, citing Tr. (Rowling) at 101:25-102:12.). Ultimately, because the Lexicon appropriated 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. Id., pp. 66-67.
The District Court likewise granted Plaintiffs’ request for statutory damages. However, because the Lexicon had not been published and thus Plaintiffs suffered no harm beyond the fact of infringement, the District Court awarded Plaintiffs the minimum award under the statute for each work with respect to which Plaintiffs have established infringement. Plaintiffs were entitled to statutory damages of $750.00 for each of the seven Harry Potter novels and each of the two companion books, for a total of $6,750.00.
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