SnitchSeeker.com - RDR Books file response to J.K.R/W.B. Lexicon lawsuit

RDR Books, on behalf of Steve Vander Ark, have filed a response to the J.K.Rowling/Warner Bros. injunction request filed a couple of weeks ago in regard to the print Harry Potter Lexicon. The document features declarations from six people and several hundred pages of exhibits.

It states;

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That J.K. Rowling “appears to claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction,” and that “this is a right no court has ever recognized,” and if accepted it would “eliminate an entire genre of literary supplements,” as well as threaten “encyclopedias, glossaeries, indexes and other tools that provide useful information about copyrighted works.” It says JKR’s rights “simply do not extend so far” and she hasn’t shown that this guide poses a significant threat.

The document fails to recognise the warnings given to them by J.K.Rowling and Warner Bros. prior to the start of any legal action.

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The brief says it is “far too late” for JKR to be the “first to publish” a Potter companion books, citing “nearly 200 Harry Potter companion guides,” “many of which incorporate A to Z listings.” RDR provides six of these books as evidence: a. The Unofficial Harry Potter Encyclopedia: Harry Potter A-Z, by Kristina Benson
b. Field Guide to Harry Potter, by Colin Duriez
c. The J.K. Rowling Encyclopedia, by Connie Ann Kirk
d. A Muggle’s Guide to Exploring the Wizarding World by Fiona Boyle
e. Fact, Fiction and Folklore in Harry Potter’s World, by George Beahm
f. The End of Harry Potter? by David Langford

(a) appears to be out of print or unavailable on Amazon, (b) is about 2/3rds non-encyclopedic work, (c) seems to not be listed on Amazon, (d)’s title is actually “An Unofficial…” etc. and (f) is a predictions book.

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The Lexicon is protected by Fair Use, the document says, because it is “a valuable reference tool that helps readers to better access, understand and enjoy the Harry Potter works.” The brief argues that fair use is not a “narrow exception” but an integral part of the Copyright Act incorporating the need to ‘allow others to build’ upon copyrighted works. It claims Fair Use is a ‘First Amendment safeguard’ that prevents copyright law from burdening free speech.

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It also says the Lexicon has a “significant amount of commentary and analysis,” citing the entry on Neville Longbottom and Luna Lovegood, talking about his bravery and leadership and Luna’s observations about her nature, decodes meaning of geographical and historical references and revealed “myriad errors and inconsistencies in the Harry Potter Works,” citing the example of Marcus Flint appearing as a seventh-year after he was to have graduated.

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Amount of the work used: This factor assess the portion of the original work used in the accused work, and this brief says that relies on “whether the extent of copying is reasonable in light of its purpose,” citing a search engine’s need to produce photographs and the Beanie Babies’ collector’s guide depicting the Beanie Babies products. It claims JKR/WB have ignored the purpose in their claim that the work relies too heavily on the original HP books. It also points out that the Lexicon does not borrow the overarching plot sequence or story ark, pace, setting, or dramatic structure, only “short quotes,” and “no more than what is necessary to its purpose.”

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It also claims there can be no market harm because JKR/WB did not argue that the Lexicon book would be bought instead of one of the seven HP novels or seeing an HP movie. It also says that derivative works are “eligible for fair use protection.” It also says that it is incumbent on JKR to prove that the Lexicon is a substitute for the guide she wants to publish, and says that J.K. Rowling does not suggest anyone would purchase the Lexicon guide instead of hers.

Steve Vander Ark's declaration states that 60% of the Lexicon book is his work, with 40% coming from "staff or other contributors and editors “and also fans whose comments and emails have proved useful and informative.”"

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“Beginning in about 2003, I received regular requests from fans for printed copies of the Lexicon website, proof of a demand for a print version…At the same time, a number of people contacted me with proposals for using the material on the Lexicon website in a printed encyclopedia. For a considerable time I declined these suggestions…There were two reasons for this. First, until the summer of 2007, Ms. Rowling had not completed the series of Potter books, so that any encyclopedia published before that point would be incomplete. Second, until August 2007, I believed that an encyclopedia, in book form, would represent a copyright violation. This was an assumption on my part, however, as a layperson.”

The book took roughly three weeks to write and comprises of about half the website.

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“It is true that, in a few places, the book employs phrases or sometimes whole sentences that are similar to phrases or sentences in the Potter books…in those cases, however, the similarity in language was unavoidable.”

He also claims David Heyman, the Harry Potter producer, admitted to using the Lexicon website daily. They also claim that E.A. have print-outs on their wall.

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After the release of the sixth book, Cheryl Klein of Scholastic sent Steve a thank-you note on behalf of his staff which is included as an exhibit. It reads: “Steve Vander Ark for the HP Lexicon: Dear Steve and the rest of the Lexicon team – On behalf of the Scholastic Half-Blood Prince editorial staff, I’d like to say thank you for the wonderful resource your site provides for fans, students, and indeed editors and copy editors of the Harry Potter series. We referred to the Lexicon countless times during the editing of HP6, whether to verify a fact, check a timeline, or get a chapter and book reference for a particular event…We’re all HP fans ourselves, of course, but you made our work immeasurably easier through the one-stop searchable HP encyclopedia the site offers. Please accept this as a token of our admiration and appreciation, and ever so many thnanks again – All best wishes, Cheryl Klein.”

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The sole purpose of the Lexicon website and book, Vander Ark says, “is to encourage fan interest in, and serve as a reference to, the Harry Potter books…the Lexicon book cannot be financially successful or profitable if the Harry Potter works are not financially successful or profitable….I believe that Harry Potter fans will buy a similar work written by Ms. Rowling even if they have purchased a copy of the Lexicon book because her fans are very loyal to her and will always want what she writes.”

The document also contains declarations from first-year law students at New York University.

In related news, Steve Vander Ark recently wrote a piece for British fanzine Ansible in which he says;

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Part of the problem all along has been the automatic assumption on the part of many that Rowling has the right to completely control anything written about the Harry Potter world. That's quite a huge power grab on her part and from everything I can tell, not legal. You and I are part of a subculture that lives off the creative work of others. We always try to do that in a legal and respectful way. However, if Rowling manages to extend her reach that far into our subculture, she will choke us off very quickly. And if she doesn't, what's to stop the next person from taking this legal precedent to even more dangerous places?