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Harry Potter The Lexicon trial by fire and fair use implications
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The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials by Steve Vander Ark, has been released as of January 2009. Called “the Harry Potter super guide” by one Amazon reviewer, the book is an offshoot of the popular Harry Potter Lexicon website. Following the StL examiner.com article J.K. Rowling copyright suits go round and round, Roger Rapoport of RDR books, publisher of The Lexicon, provided follow up comments announcing the book has been reworked according to detailed rulings of New York Federal District Judge Robert Patterson who presided over the Warner Bros vs RDR Books case in 2008. In Opinion and Order #96466 Patterson provided an exceptionally detailed accounting of the points of contention that every intellectual property rights lawyer (and curious writer) should read.
Highlights of the trial results include that The Lexicon was not a derivative, i.e. did not just re-state the stories, but reorganized facts and information for the purpose of assisting readers in a deeper understanding of the series. The Lexicon was fair use of the Harry Potter books’ information, but infringed on copyright because too much of the descriptions were “substantially similar.” However, in the case of Rowling’s companion books, The Lexicon was not fair use as it did basically restate those encyclopedic books. The judge called The Lexicon a “demonstrated value as a reference source.” The book was not ruled to be exploitation merely for financial gain or as entertainment taking away from the Potter books, rather it was a legitimate production intended to benefit the readers. It also was ruled that an author does not have sole rights to produce a guide to their own work, and, regardless, in this case no Potter guide that Vander Ark produced could possibly cause financial harm to any guide that Rowling herself might publish, given her reputation and stature in the publishing world.
The judge’s fair use ruling may well be used as reference in the J.D. Salinger vs J.D. California Catcher in the Rye sequel. Just because a book is based on the original is no reason to prevent its publication, and again, in this case, nothing J.D. California publishes could ever do financial damage to the sales of the Salinger book. Salinger may stomp his foot, just as Rowling may have shed a tear, but whatever the rulings in the end, trials such as these will further chase the mists away from the mystery of fair use.
Stanford University Law School’s Fair Use Project assisted RDR Books in the trial. Rapoport hopes the non-profit can serve as a clearinghouse for legal help and information for other small publishers. The Volunteer Lawyers for the Arts is another organization that will assist writers and small publishers in navigating the legal terrain. Consulting with a real lawyer before writing may be the best advice. Despite being a loyal fan of Harry Potter, Vander Ark suffered serious damage to his reputation, and the trial apparently split the Harry Potter fandom in half. Beware, J.D. California.
Some Harry Potter spinoffs that did not go to trial:
The Complete Idiot’s Guide to the World of Harry Potter by Tere Stouffer
The Book of Harry Potter Trifles, Trivias and Particularities by Racheline Maltese
In Search of Harry Potter by Steve Vander Ark, a travellers guide to Harry Potter places in England and Scotland
Harry, a History by Melissa Anelli*, Leaky Cauldron webmistress tracks the fan-tastic phenomenon of Harry
Repotting Harry Potter, a literary analysis in conversational style by Professor James W. Thomas (probably an excellent resource for writers, too)
Mugglenet.com’s Harry Potter Should Have Died controversies and discussions by Emerson Spartz, founder of Mugglenet
Looking for God in Harry Potter by John Granger, a Christian homeschooling father
*Melissa Anelli will be in St. Louis next Friday, July 3, at 6pm at the St. Louis Public Library Headquarters on Lindbergh. Puddn’head Books of Webster Groves will provide books for The Wrockingest Good Time in St. Louis, and following the signing will be a live PotterCast and performances by Wizard Rock bands The Remus Lupins and The Whomping Willows.
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