The suit is prompted by the imminent publication of a book based
on the website, The Harry Potter Lexicon. Rowling and the producers
of the Harry Potter films Warner Bros are seeking an injunction to
stop the publication of the book, claiming copyright
infringement.
The case, which will be heard in New York on 14th April, centres
on what exactly constitutes copyright infringement and whether or
not the Potter copyright owners' seeming acceptance of the Lexicon
as a website affects their ability to stop it becoming a book.
Potter fan Steve Vander Ark began putting the online Lexicon
together in 1999, cataloguing the peculiarities of the world
Rowling had created for her bespectacled hero-conjurer. Fans have
contributed to the site over the years and it is now widely
accepted as the definitive authority on Potter's world.
Small Michigan publisher RDR Books has been working with Vander
Ark on a book version of the Lexicon but Rowling and Warner claim
that this infringes their copyright.
"The people, places, terms and images in the Harry Potter books
… are Ms Rowling's original creative work," says the lawsuit.
"I am deeply troubled by the portrayal of my efforts to protect
and preserve the copyrights I have been granted in the Harry Potter
books," said Rowling in court papers. "If RDR's position is
accepted, it will undoubtedly have a significant, negative impact
on the freedoms enjoyed by genuine fans on the internet."
RDR claims that its publication of the book would be within the
fair use exemptions of copyright legislation.
"[Rowling] appears to claim a monopoly on the right to publish
literary reference guides, and other non-academic research,
relating to her own fiction," said a statement from RDR. "This is a
right no court has ever recognised."
"It has little to recommend it," said RDR. "If accepted, it
would dramatically extend the reach of copyright protection, and
eliminate an entire genre of literary supplements: third party
reference guides to fiction, which for centuries have helped
readers better access, understand and enjoy literary works."
The suit is based on US copyright law. John Mackenzie, a
litigation specialist with Pinsent Masons, the law firm behind
OUT-LAW.COM, said that if it were a case under UK copyright law, it
may not succeed.
"If what this book is doing is identifying individual aspects of
a particular thing such as characters, referring to those
individual parts is probably not copyright infringement," said
Mackenzie.
"Vander Ark says he is not copying the books, that he is
making general reference to the original work. If that is so, as he
builds it up his reference work becomes a creation in its own
right, not a copy," said Mackenzie. "It is then a derivative work,
which is quite distinct from the original, and a derivative work is
allowed. Of course, if all he has done is copy chunks of the Harry
Potter books and put them into a different order, that would be
different. The court could ask 'Is he taking advantage of the
skill, time and effort that JK Rowling put into writing the
books?'"
The case is complicated by the fact that Vander Ark claims that
Warner Brothers, Rowling and her book publishers all knew of,
expressed approval of and accepted the Lexicon as an online
work.
RDR claims that Warner Brothers used the timeline created for
the website on its DVDs of the Harry Potter films, even including
typographical errors from the website timelines. Warner Bros'
and Rowling's lawsuit calls this "a complete fabrication".
Vander Ark
told The Guardian newspaper that the film producers had used
and approved of his work while making the films.
"Warner Brothers flew me over to the UK to meet the stars and
the crew for the opening of Harry Potter and the Order of the
Phoenix," he told the paper. "The producer, David Heyman, told me
they used the Lexicon on set every day. I was also taken to
Electronic Arts, the company that was making the video game of the
film, and they had printouts of the Lexicon taped all over their
walls."
The site has also been awarded one of Rowling's "fan site
awards".
Mackenzie said that if the case were heard in the UK it could
turn on the issue of the apparent approval of the various copyright
owners in the Lexicon up until now.
"There is a very interesting question of waiver or
acquiescence," he said. "If he manages to prove that Rowling has
known of this work, has used it, that it has been used on the film
set and that everybody has known of it, the right to sue may be
lost."
The lawsuit claims that the very fact of taking material from a
website platform to a written one changes the nature of any
infringement. "There is a big difference between the innumerable
Harry Potter fan sites' latitude to discuss the Harry Potter works
in the context of free, ephemeral websites and unilaterally
repackaging those sites for sale in order to cash in monetarily on
Ms Rowling's creative works in contravention of her wishes and
rights," said the suit.
Mackenzie said that under UK law the copyright status of the
work would not be affected either by the Lexicon's move from the
web to print or from free to paid-for.
Editor's note, 20/03/2008: For avoidance of
doubt, we have not seen the Lexicon. We have changed a comment that
appeared in the original version of this story which may have been
interpreted as suggesting otherwise. We apologise for any confusion
caused.
