JKR/WB vs. RDR Books: Findings of Fact & Conclusions of Law

The Findings of Fact and Conclusions of Law documents from both Plaintiffs JKR/WB and Defendant RDR Books are now online. These documents show each side’s analysis of the trial and opinion on how it should conclude. Once again, the ever wonderful Leaky has proveded summaries of the lengthy legal documents, which you can view here (JKR/WB) and here (RDR).

You can view the full legal documents here (JKR/WB) and here (RDR).

Complete Lexicon Trial Transcripts

Thanks to Leaky via Standford Law School, complete transcripts of all three days of the Lexicon trial are now online:

Day 1

Day 2

Day 3

MTV Sheds Light on 'Fair Use'

I was watching some videos on MTV today only to find a new and quite useful article regarding the Lexicon trial between J.K. Rowling/Warner Brothers and RDR Books (our reaction podcast should be up by tomorrow evening). The article is a week old, but it's still quite handy, as it talks those of us who are not versed in the art of legal jargon through the issue of "fair use". When the trial wrapped up last week, it was still hazy who was in the right and who was in the wrong under the eyes of the law because of the vague "fair use" laws. So for all of those still confused, you can check out the article here.

It's unofficially a duel between the richest, most successful author in the world and a 50-year-old librarian, but the case of J.K Rowling v. RDR Books, now playing out in a federal court in New York, doesn't hinge on magical knowledge, superior weaponry or even powerful friends, but on a somewhat-complicated U.S. law known as the doctrine of fair use.

So what, exactly, is fair use, and why is Rowling arguing in court that "The Harry Potter Lexicon" breaks the guidelines established for it to work? And why can we quote liberally from "Harry Potter," at seeming random if I like ("Nitwit! Blubber! Oddment! Tweak!"), while Steve Vander Ark is being enjoined from doing what, at face value, appears to be the very same thing?

The answer lies in a piece of legislation only 30 years old and the four provisions it outlines as the foundation of fair use.

AP on Lexicon Lawsuit: The Blurry Line in Copyright Law

The Associated Press has posted a summary of the lawsuit over the Lexicon book that began back in October, which does a good job at explaining this whole thing for the less legal inclined among us. The article specifically talks about why this trial, a "fair use" trial, is so tricky:

U.S. rules allow for the "fair use" of copyrighted material in unauthorized works, but there are limits. Journalists may quote from films and books when writing a review. Scholars can use excerpts from a novel while penning an author's biography.

Generally, the call on whether such uses are legal comes down to how much material was taken and how different the end product is from the original work.

Lawrence Pulgram, an intellectual property lawyer who represented Napster in a copyright fight with the rock band Metallica, said deciding where to draw the line is rarely easy.

"Fair use is the most erratically applied doctrine in copyright," he said.

Works like Vander Ark's lexicon fall into one of the tougher categories. It takes the form of an A-to-Z list of the hundreds of characters and place names from her books, followed by brief entries summarizing how they fit into the plot. There is also information on the origin of some of her characters in mythology and folklore.

Rowling and her legal team acknowledged that readers' guides like the lexicon are, in fact, allowed under the law, but made the case that Vander Ark simply took too much material. [Editor Note: To see the pie chart evidence, click here and scroll down]

U.S. District Judge Robert Patterson Jr. indicated that the case could go either way and encouraged both sides to settle. He suggested that a creative negotiation might produce a book that both sides could live with.

Rowling said during her testimony that Vander Ark could still do his book, as long as he changed it to take less of her material.

"I never ever once wanted to stop Mr. Vander Ark from doing his own guide. Never ever," she said, before asking the judge again to block it in its current form.

JKR/WB vs RDR Trial: MSNBC Editorial

MSNBC has an editorial by Helen A.S. Popkin concerning the big Lexicon lawsuit; she thinks J.K. Rowling is in the wrong:

Then there’s that kid himself, Mr. Vander Ark. (Yeah, I know he’s 50, but he’s still a kid.) Dude gave up “Star Trek” for you! And now you’re playing a game of weepy mental chase with a kid who made a Voldemort reference on the stand … which of course, makes him Harry Potter. You’re suing Harry Potter!

Leaving aside the question of copyrights and the fact that your jealous guarding of the universe you created actually helped the movies (because you insisted that the cast be — well, English children rather than "90210" 32-year-old teens), the point is you're rich! Settle back and enjoy the insane power, don't horde it and ruin other people's lives.

The editorial also quotes another editorial, Newsvine, which also thinks Jo is in the wrong:

Since a Creative Commons license isn’t nearly as restrictive as a traditional copyright, it allows others to build upon or reference your original idea, within in the limits of your choosing.

I mention this mostly because this Creative Commons business is how things are going to go in the Internet’s future, like it or not. That’s just one of the reasons you might want to consider the wise words of the judge who advised that you kids, and all your lawyers, find some creative way to settle this nasty business.

The other thing is, you’ve really got to think long and hard before you sue a fan. It just never goes over well. Why? Because it’s not just about that one fan you’re suing, it’s all those other fans watching you sue that one fan who adores and supports you. Remember when Prince sent his lawyers after that one baby on YouTube dancing to his music?

JKR/WB vs RDR Trial Summaries

Several news sources are have released summaries of the three-day-long trial that ended yesterday. So for all of you who don't feel like reading three days's worth of lengthy articles, check out The BBC, The Sydney Herald, Herald Tribune, The Times Online, and/or The Telegraph.

JKR/WB vs RDR Trial Day 3 (UPDATED)

The Wall Street Journal is continuing their coverage of the J.K. Rowling/Warner Brothers vs RDR Books, and has posted two new articles concerning the today's proceedings.

The first article reports the two parties have "reached a settlement only on the false advertising and deceptive trade practices claims. The settlement means only that neither J.K Rowling’s name nor her quote endorsing the online version of Steven Vander Ark’s H.P Lexicon will appear on the cover of the book version of the Lexicon." However, there is still the copyright infringement, the core of the case.

Judge Patterson was quoted saying: “I don’t want to be influenced by either party’s attitude toward settlement.” and “I think this case, with imagination, could be settled . . . . But don’t throw anything out because of my desire to move ahead”. Patterson also remarked that he suspects the case will be appealed, and that it could go all the way to the Supreme Court, potentially taking years to resolve.

This morning, the lead lawyer for Jo, told the judge that yesterday’s testimony concluded their affirmative case of copyright infringement. "That leaves it to the defense [RDR Books] to establish fair use, which began with this morning’s testimony."

In the second article, IP (Intellectual Property) expert Ethan Horwitz is asked for his take on the case.

Thanks for taking the time, Ethan. So you think it’s running neck and neck between Warner Bros. and J.K. Rowling on the one side, and RDR Books on the other?

It’s really pretty remarkable, in my opinion. The fair-use test has four factors and each side can find precedent to support it. The case law is really all over the map. And on the facts, too, I think it’s a really close case. It really smacks down right in the middle.

...


And what about the facts here?

They’re also very split. Each side has some strengths and some weaknesses. Another part of the fair-use test involves the effect on the published work’s market, essentially just how clearly the copyright holder has shown that the work will have a damaging economic effect on her publications. That’s a tough argument for Rowling to make here because she, in the past, has been so encouraging of fan Web sites and lexicons and the like. This is where she has her major problem.

Vander Ark’s biggest issue, I think, is that his site looks so similar to the design of the Potter books. Technically speaking, it’s a trademark issue, but it is going to affect another factor, which is the extent and value of the taking from the original work.

So your prediction?

I wouldn’t make one in this case.

UPDATE: The WSJ has posted a third entry, concluding today's proceedings, in which Slater (the article's author) says the defense "score[d] some serious points."

The plaintiff's expert witness Jeri Johnson failed to add significant evidence, causing udge Robert Patterson to interrupt, ““It’s not helpful testimony because it draws conclusions without specifics. I can’t simply take the expert’s opinion as my own”.

When the witness was cross examined by RDR's lawyers, Johnson's "testimony simply unraveled":

Hammer got Johnson to agree that what’s obvious or facile to an academic dean at Oxford might not be so to children — presumably the Lexicon’s main audience. He asked: Could a work be useful to a 10 year-old even if it’s not something she would classify as a work of academic scholarship? “Yes,” she said. “No more questions,” he said.

Next, J.K. Rowling took the stand, as the trial's final witness, where she compared the Potter books to cake saying that the Lexicon takes all the best “crumbs,” repackages them and sells them for “entertainment value.”

Judge Patterson then asked Rowling, “Can you imagine anyone reading [the Lexicon] for entertainment value?”

“No,” she replied. “But, without seeming arrogant or vain, there are entertaining things in it — and I wrote them.”

Rowling went on to say that, just because she’s been successful, the law shouldn’t grant her less copyright protection. And, if the case is decided in RDR’s favor, she argued, borrowing law school cliches, that it will be a “slippery slope,” “floodgates will open,” “a precedent will be set,” and anyone will be able to “lift an author’s work” and present it as their own.

In the closing statements, Rowling’s lawyer, O’Melveny’s Dale Cendali, emphasized that the Lexicon “takes too much and does too little.” The defense’s Anthony Falzone, argued that “Quality shouldn’t matter.”

UPDATE #2 Yahoo! News via Reuters has some more information concerning of Day 3 of the trial.

"This case is about an author's right to protect their creation," Rowling, told the court. "If this book is allowed to be published the floodgates will open."

"Are we, or are we not, the owners of our own work? It's not just my work that is endangered."

More concerning the closing statements: Dale Cendali, a lawyer for Rowling and Warner, said the lexicon reproduced "tremendous amounts of text" without attribution. "There has been no testimony that it would add anything new or original," she said. "The lexicon is filled with errors."

But Anthony Falzone, a lawyer for RDR, said Rowling could not suppress a book just because she thought it was no good. "Copyright law does not permit an author to suppress a book because she doesn't like it."

JKR/WB vs RDR Trial Day 2

Today marks Day 2 of the media frienzied trial that is J.K. Rowling/Warner Brothers vs RDR books. USA Today (video featured) has posted a new article covering today's proceedings. Today, Steve Vander Ark, author of the book in question, took the stand:

With Rowling sitting directly in front of him with her lawyers, Vander Ark broke down in tears after more than three hours on the witness stand when asked if he still thought of himself as part of the Harry Potter fan club community.

"I do," he said, trembling with tears and struggling to continue speaking. "It's been difficult because there's been a lot of criticism, obviously, but ... it has been an important part of my life for the last nine years or so."

The Wall Street Journal has also updated their Law Blog to continue coverage on the trial:

Did Vander Ark Knowingly Infringe? Cendali tried to elicit a sense of the copyright knowledge that Vander Ark, a longtime librarian, might have, and that perhaps he knew ahead of time that RDR planned to infringe Rowling’s copyright. Cendali showed an e-mail from Vander Ark to the host of another Potter fan site. Vander Ark, apparently disillusioned with the deal he struck with RDR in August, wrote: “I am more than willing to dissociate myself with RDR. They have lied to me, misled me, taken advantage of me and in the end ruined my good standing with fans and with Rowling.”

What’s More Important to the Parties? Money or Passion? Yesterday, Rowling said the case isn’t about money, but about principle. One of RDR’s lawyers, Anthony Falzone, in his opening remarks said that for Vander Ark it was never about money, but rather passion. Today we got a sense of where things stand on both fronts. According to Vander Ark, he’s made about $6,500 off his Web site — all through advertising — between 2000 and 2008.

JKR/WB vs RDR Trial Day 1

Several articles and news networks have reported on the J.K. Rowling/Warner Brothers vs RDR Books trial, which started today in New York City (The Wall Street Journal, The BBC, The New York Times). Today both J.K. Rowling and RDR owner Roger Rapoport took the the stand. The case is expected to last most of the week.

During Jo's testimony, during which Steve Vander Ark was told to leave the courtroom, the author said that the attempt to publish "an act of betrayal. He has simply taken it and copied it. It is sloppy, lazy and it takes my work wholesale."

According to Wall Street:

When J.K. Rowling concluded her testimony today in the case of Warner Bros. and Rowling vs. RDR Books, the Law Blog stepped outside at the recess to have a chat with Columbia copyright professor Tim Wu. “She was the definition of a star witness,” he said. “It was hard for [the defense] to get anything out of her.”

As for weaknesses in her testimony, Wu said Rowling might’ve gone too far in claiming that the H.P. Lexicon was useless. Indeed, when Dale Cendali, the O’Melveny attorney representing Rowling and Warner in the case, asked Rowling about her impression of the H.P. Lexicon, she responded: “It’s sloppy and lazy in that it takes work wholesale. And what does it add? Worryingly, given that the excuse is that it’s some kind of reference guide, there are incorrect translations. So even in the loosest sense I do not consider this a worthwhile book.”

When David Hammer, the lead attorney for RDR Books, the putative publisher of the H.P. Lexicon, cross-examined Rowling, he went after her on that point. Hammer attempted to show that other Potter companion books, though they might offer more analysis, are not as “comprehensive” as the H.P. Lexicon, and don’t purport to be complete “encyclopedias” as, he argues, the H.P. Lexicon is. After all, a major point of argument for the defense in this case is whether the value added by organizational guides is enough to qualify a reference guide for fair use.

But when Hammer tried to get Rowling to concede that the H.P. Lexicon is more comprehensive — in that it’s longer — than other books, she shot back: “Is that the best you can say for the Lexicon? That it has text?” She added, “An alphabetical rearrangement is the easiest and laziest way to re-sell my work.”

Jo also noted that she had stopped work on her new novel (not sure if it's the one for children or adults) because her legal concerns had "decimated my creative work".


The Leaky Cauldron managed to attend the trial and has posted what a decent transcript of events (no records were allowed). It's lengthy, but certainly worth the read.

REMINDER: JKR/WB vs. RDR Books Trial Tomorrow

For months now fans of the Harry Potter books have awaited the ever looming trial of J.K. Rowling/Warner Brothers vs RDR Books concerning the publication of an unofficial Harry Potter encyclopedia, entitled the Harry Potter Lexicon, written by the HP Lexicon's Steve Vander Ark. After months of hefty paperwork and a number of rescheduling, the trial will take place tomorrow in New York, with Jo in attendance.

We will update throughout the day tomorrow as information is released.

Note: This week's OwlCast recording session had been delayed so that we can record immediately after the trial tomorrow. It will be on the feed either Monday or Tuesday afternoon (PST).

JKR/WB vs. RDR Books Trial Moved to April 14

J.K.Rowling/Warner Brothers vs. RDR Books has once again been rescheduled. The trial will now take place on April 14 today, with judge Hon. Robert Patterson, Jr. overseeing.

The trial had previously been rescheduled for March 24,25, and 26, and was taking the place of the hearing a preliminary injunction, which had been set for March 13.

For more information, make sure to check out Leaky.

JKR/WB vs. RDR Books Trial Rescheduled

The trial for J.K. Rowling/Warner Brothers vs. RDR Books has been rescheduled from March 13th to March 24, 25 and 26, starting at 9:30 a.m., at the United States Courthouse in Manhattan.

According to Leaky:

This will take the place of what was to be a March 13 hearing to determine whether to grant a preliminary injunction halting the book from publication while the case moved to trial. The judge on the case, Hon. Robert Patterson, Jr., ordered that the hearing and trial on copyright/trademark infringement be consolidated

Wyrd Sisters Continue Lawsuit Against WB

The Toronto Star is reporting that Canadian folk band The Wyrd Sisters, are still at it. The group is once again seeking further legal action against Warner Brothers in a continuing $40 million lawsuit.

Fans will remember that the band sought compensation for the use of the Weird Sisters band from the Harry Potter books being used in the film adaptation of Goblet of Fire, despite the band never being named in the film or soundtrack.

The folk band is now seeking the “destruction of DVDs, compact discs, video games and other paraphernalia” which contain reference to the fictional “The Weird Sisters” band.

The lawsuit seeks the “delivery-up for destruction” of all visual performances, sound recordings and merchandise relating to the “Harry Potter Weird Sisters” band, which Baryluk claims includes the film’s soundtrack, video games such as “Harry Potter and the Chamber of Secrets” and the “Harry Potter Scene-It” game, as well as trading cards.

The Wyrd Sisters originally filed a lawsuit back in 2005 to block the release of the Goblet of Fire film, but were clearly unsuccessful, and were further ordered to pay WB $140,000 for legal fees. According to the article, this fee apparently has not yet ben paid. The court has now ordered the two parties' lawyers to meet over the financial situation.

JKR/WB File File Response in Lexicon Suit Before Hearing

J.K. Rowling and Warner Brothers have filed a response to the latest filing by RDR Books in the lawsuit against the publication of a book version of the Harry Potter Lexicon. This is the last filing before the March 13th hearing. It won't be until after the hearing until we know what other legal steps will have to be taken.

In the respones JKR/WB say that they have proved likelihood of sucess and that further argue that the book in questions copies a large amount of the Harry Potter books verbatim, saying that the book is “nothing more than a recast of Ms. Rowling’s original text,” which differentiates it from the Ty Beanie Baby book cited by RDR because that book contained “critical and evaluative” elements.

According to Leaky:

The main complaint says that RDR cannot prove that it is likely to succeed on a fair use charge because it does not create “new information, new aesthetics, new insights and understandings.” It also says that attempts to cast it as a “serious book” filled with “scholarly commentary and analysis is merely an attempt to excuse blatant infringement.” It says “alphabetizing” does not render a work transformative and that reorganizing work does not alone render a work in concert with fair use. (It cites Video Pipeline, Inc., vs. Buena Vista Home Entertainment, Inc., on this claim.) It also argues against the notion that the book is similar in its fair use characteristics to Google’s thumbnail image search engine (as maintained by RDR in the last filing) and says there is no original commentary or analysis or “anything else rising to the level of scholarship.” It says RDR’s expert also agrees, citing the filing that says that the book’s chief point is not literary analysis.

It counts 2,034 entries out of the book’s 2,437 entries that lift text directly from Harry Potter, and says the remainder “merely [add] adverbs such as ‘unfortunately,’ ‘sadly,’ or ‘possibly’ to descriptions.

Also included in the response was J.K. Rowling's declaration, in which Jo states:

In my opinion 99% of fans are acting entirely in good faith, and as I have excellent relations with many members of the fan community, I find it devastating to contemplate the possibility of such a severe alteration of author-fan relations. I continue to believe that the online fandom has been a wonderful experience for thousands of people, myself included; that it has become, not only an enormous global book club, but engendered an explosion of creativity and communication rooted in a world we would all like to inhabit.

Jo reiterates that he intends to publish a definitive guide to the Harry Potter world and that the proceeds will be donated to charity. She also notes that she is already in the process of "assemblin and organizing materials from which I will work."

Further information, as there is plenty, concerning the response, is available at Leaky.

RDR Files Response to JKR/WB

RDR books has filed its reponse to WB and J.K. Rowling's full request for an injunction. The full legal documents are available at Justia.com.

In the response, RDR mainly argues that several other books have been released of the same nature of the Lexicion book in question, despite many of these books being no longer in print, available, or not similar to the Lexicon book's style. They go on to state that the book in question would have to be proven very similar to J.K. Rowing's books for it to be illegal.

Leaky is continuing their full coverage of the lawsuit, and have a more thorough breakdown of the response.