TECHNOLOGY LAW CORNER
Harry Potter and the Deathly Derivative

With a gavel instead of a wand, New York District Judge Robert Patterson on Monday found publisher RDR Books and Steven Vander Ark guilty of infringing the copyrights of J.K. Rowling and moviemaker Warner Brothers Entertainment.

At issue was RDR's attempt to market and distribute in book form their definitive online lexicon, or encyclopedia, based on Rowling's famed series. The Harry Potter Lexicon would include a compendium of information on Harry, Hogwarts, Hermione's spells, Hagrid's pets and Professor Snape's potions, along with many selections from the seven books.

Judge Patterson held that the proposed publication would cause irreparable harm to Rowling, who is working on her own lexicon, and permanently enjoined, or stopped, the RDR publication.

Drawing the Line

All copyright holders have various exclusive ownership rights in their works, preventing others from using, selling, copying and other activities. One exclusive right owned by a copyright holder is making derivative works. A translation of Harry Potter and the Sorcerer's Stone, for example, would be copyright-protected, as the underlying work is transformed minimally.

Similarly, the rights to other works derived from the source work are protected. However, the more a new work involves independent creation with new content, the less derived it becomes. Even though the line between new and derived may be vague, you didn't need the divinations of Professor Trelawney or Dumbledore's pensieve to see where this case was going.

Indeed, the unauthorized RDR encyclopedia organizes the world of Harry Potter into a single tome and uses extensive quotes from the novels. This runs completely counter to Rowling's rights as the creator. Although Rowling and her publishers tolerated a large measure of Harry Potter-related Web content -- with RDR being a top fan Web site and Vander Ark being a devoted fan -- RDR moved forward with commercializing the book, despite warnings. Rowling then had to put the cruciatus curse on the endeavor.

Ironically, Rowling and co-plaintiff Warner Brothers were themselves accused of infringing RDR's copyright, allegedly by incorporating a timeline of the Potter universe that was based on RDR's works in plaintiff's CD-ROM. This claim was the basis of a countersuit. As Rowling's counsel noted, if publication of the unauthorized lexicon had gone forward, Rowling's own lexicon may have been the subject of a further suit down the line, and Rowling herself might have been charged with infringing RDR's work.

Fair and Fairer

The sheer success of Rowling's series has been nothing short of magical itself. Like Harry, she seems to have had a hard but charmed life, and her struggles now are to maintain the integrity of her creation among us muggles. Some groups, however, feel that RDR should have been permitted to publish despite the copyright proscriptions.

Judge Patterson did not banish all hope for RDR. In his lengthy opinion, the judge outlined the various discrete unauthorized takings and set forth ways to avoid infringing. RDR has indicated that it may so modify its book. Indeed, although copyright holders do have strong exclusive rights, those rights are not absolute, and societal fairness plays a part also.

Thus, compendiums and lexicons of current works are not only possible, but they proliferate. Fans or others desirous of "cashing in" or otherwise capitalizing on the mania must, however, contribute their own content. For example, Vander Ark's book, In Search of Harry Potter, is due out next month, and is directed to his travels throughout England. There have been countless other books critquing and contributing new material to the Harry Potter universe. Perhaps Rowling could have disputed some of those works also, but writers (and producers) want to give some free rein to augment the hysteria.

There is also the copyright doctrine of fair use which permits a measure of unauthorized copying for specific purposes. The more educational or scholarly the use, the more fair it becomes. However, the more commercial the use and the more extensive the content used, the less fair. Here, the commercial use and irreparable harm to Rowling weighed against any notion of fairness.

Vander Ark and others are thus permitted to continue partaking in the joys of Harry Potter, as long as they avoid the dementors of copying.