A federal district court has ruled that an unauthorized fan encyclopedia compiling and describing characters, concepts and events in the "Harry Potter and . . ." book series violates author J.K. Rowling's copyrights in the works. The ruling, coupled with a similar ruling concerning attempts to capitalize on the Seinfeld television series, makes clear that authors and copyright owners have significant control over who may exploit and profit from the use of their characters and storylines in other mediums and markets. If one is considering publishing a work about a fictional universe that is not his own, the decisions reinforce that the commentator must avoid mere compilation or reproduction of select items from that universe, but instead offer his own unique perspective and independent thought, such as through critique or parody, to avoid being subject to copyright liability.
The Harry Potter series about a young wizard has spawned seven novels, five live-action movies, two novellas, and millions of fans. Among those fans is Steven Vander Ark, a former library media specialist at a Michigan middle school, who is also the originator, owner, and operator of the popular fan website THE HARRY POTTER LEXICON. While enjoying and reading the books, Vander Ark compiled an extensive list of spells, characters, and fictional objects that Rowling had created for the Harry Potter universe. By 2000, Vander Ark had launched his website as an encyclopedia that served as a one-stop source for inquisitive fans. The website contains minimal advertising to offset its operational costs and is freely available. Vander Ark would later write Rowling's literary agent suggesting that he would be a good editor for the Harry Potter encyclopedia that she would be writing.
Publisher RDR Books approached Vander Ark to create an encyclopedia based on his extensive knowledge of the Harry Potter series. Vander Ark agreed once RDR Books convinced him that no copyright issues would be posed, and the resulting work would eventually be entitled THE LEXICON: AN UNAUTHORIZED GUIDE TO HARRY POTTER FICTION AND RELATED MATERIALS, comprising more than 400 pages and 2,400 entries. THE LEXICON borrowed extensively from his fan website, which in turn had been copied from the books. Every character and item were discussed, regardless of its significance. In some cases, citations were minimal. Where Rowling had explained a concept in the books to the reader, THE LEXICON copied that information almost verbatim without always applying quotation marks to the text. Synopses of the books closely outlined each event faced by major characters. Upon learning of the book's pending publication, counsel for Rowling andWarner Brothers (a licensee of many of Rowling's rights) sent a series of cease-and-desist letters and eventually took legal action under U.S. copyright law in the case styled Warner Bros Entertainment v. RDR Books.
Relying heavily on the Second Circuit decision Castle Rock Entertainment Inc. v. Carol Publishing Group Inc., 150 F.3d 132 (2d Cir. 1998) in an analogous case involving characters and events from the television program Seinfeld, Judge Robert Patterson, Jr., of the U.S. District Court for the Southern District of New York held that Vander Ark and RDR Books had violated Rowling's copyrights. The parties did not dispute Rowling's ownership rights in the characters, so the court first substantively addressed whether THE LEXICON was substantially similar. The court held that even though the book quoted Rowling's text for a different purpose, it substantially copied from her work to do so. Furthermore, the fact-expression dichotomy wherein copyright can protect ideas but not facts also failed to alter the analysis. Relying on Castle Rock, the court noted that the events from the Harry Potter series reported as fact were actually expressions produced through Rowling's creative thought. Notably, however, the plaintiffs failed to establish that their right to create a derivative work had been infringed. THE LEXICON did not attempt to leverage the characters beyond the fictional events within the books.
Against this backdrop, RDR Books was forced to rely on the "fair use" defense. This defense reflects an effort to balance the "inevitable tension between the property rights establishe[d] in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them—or ourselves by reference to the works of others, which must be protected up to a point." (quoting Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006)). Vander Ark's work, however, was not fair use because, although it transformed the original Harry Potter series, it did not supplant the objects of the series "with new expression, meaning, or message." The court suggested that the vast amount of quotations and the minimal citation of those quotations influenced its decision as to the lack of sufficient transformation present in THE LEXICON. Moreover, THE LEXICON'S commercial nature weighed slightly against fair use, but the court held that THE LEXICON was only likely to affect the commercial sales of the two reference-like novellas. Without the fair use defense, THE LEXICON'S publication was permanently enjoined.
The RDR Books decision reaffirms the extensive creative control that authors can exert over the fictional universes that they create. Although there may be situations in which the a party can exploit another person's work by adding its own independent thought, such as in a criticism or parody, see Suntrust v. Houghton Mifflin Co., 252 F. 3d 1165 (11th Cir. 2001) (lawsuit concerning the parody of GONE WITH THE WIND titled THE WIND DONE GONE), and thereby "transform" the work to gain its own copyright, a slavish reproduction of an author's ideas in encyclopedia form is unlikely to constitute such a situation.
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