Warner Bros. Entertainment and J.K. Rowling v. RDR Books Decided September 8, 2008. (2008 WL 4126736, S.D.N.Y.)

Court Rules That Unauthorized "Guide" to Harry Potter Series Was Copyright Infringement, and Not a "Fair Use""

Judge Patterson of the U.S. District Court for the Southern District of New York found that RDR Books infringed the copyrights of the Harry Potter series and J.K. Rowling's two companion books, and that there was no fair-use defense available to the defendant. The court permanently enjoined publication of the Lexicon and awarded minimum statutory damages to the plaintiffs.

The court had no difficulty finding copyright infringement. The Lexicon copied a sufficient quantity of the Harry Potter series to establish substantial similarity. The court focused on the similarity in language, pointing out the considerable number of direct quotations, often without quotation marks, and passages in which small portions of the original novels are retold.

Much of the court's decision deals with the fair use defense raised by RDR Books, and discusses the four factors to be considered in determining the existence of a fair use defense:
(a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (d) the effect of the use upon the potential market for or value of the copyrighted work.

The court's most critical inquiry was "whether and to what extent the new work is 'transformative,' that is to say, whether it adds value to the original, something new, with a further purpose or different character, altering the first with new expression, meaning or message. In theory, a guide to the Harry Potter series can be transformative, because it adds value to the original and contributes to the enrichment of society. In this case, however, the transformative character of the Lexicon is diminished as a result of its excessive verbatim copying of passages from the original works with only few or no citations to the original.

The court found that other factors weighed against finding fair use as well. The Lexicon was commercial in nature, not educational. The highly imaginative and creative Harry Potter fiction is the type of work which copyright, at its core, is designed to protect. RDR's Lexicon copied too much from the original works, including wholesale copying from the companion works. Finally, the Lexicon could negatively impact the market for Rowling's companion books and her potential licensing opportunities.

Judge Patterson stated that "In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit to readers and students; but . . . they should not be permitted to 'plunder' the works of original authors . . . without paying the customary price . . . lest original authors lose incentive to create new works that will also benefit the public interest." While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon's purpose of aiding readers of literature generally should be encouraged rather than stifled.

Summary:
RDR went too far by taking more than was reasonably necessary to create an A-to-Z reference guide to the Harry Potter series.