Harry Potter and the Fair Use Litigation, Redux

The New York Times reported this week that the Harry Potter Lexicon, a companion book to the hugely popular Harry Potter series and an adaptation of a popular fan-run website, is substantially similar to the original books and can therefore not be published.

Back in April, I wrote about the lawsuit in this blog entry, but allow me to recap here for new readers. Essentially, the story goes like this: Steven Vander Ark, a fan of Rowling's work, created a popular website called the Harry Potter Lexicon, in which fans contributed facts about the characters, settings, plots, etc., of the Harry Potter novels. The end result was a fairly comprehensive guide to the series. Rowling herself actually praised the site. However, when Vander Ark adapted the site to create a book, Rowling (and Warner Bros., who produces the Potter movies) sued the publisher of the book to block the Lexicon's publication. A Federal judge in New York ruled on Monday in favor of Rowling and Warner Bros., blocking the publication of the book and awarding the plaintiffs $6,750 in damages.

The problem, as the judge saw it, was that the new work was just too similar to the original work to be considered a transformative use of that work, meaning that, rather than using Rowling's work as a jumping-off point for an original work, Vander Ark simply took her ideas and rearranged them.

Literary companions are generally considered to be perfectly acceptable, but it would seem that there were a couple of factors working against the Lexicon. First, Vander Ark apparently (the book isn't published, so I'm going by the judge's reading of it) didn't add a significant amount of new material to Rowling's work, but rather just put it into a different order. According to the Associated Press story about the ruling, the judge does not wish to discourage the creation of reference books to help readers of the Harry Potter series; there just wasn't enough new material in the Lexicon. Second, while Rowling applauded the non-commercial website version of the Lexicon, the book would have likely been somewhat commercially successful; fair use arguments often hinge upon using material for educational or non-commercial uses. Rowling had apparently discussed collaborating with Vander Ark to create a Harry Potter encyclopedia, but had decided to create her own instead. Considering all of this, it isn't surprising to me that she filed suit.

What is surprising is Vander Ark's persistent fanaticism about all things Potter. The Times reports that he is carrying on with plans to publish a Potter-themed travel memoir, and that he cried during his testimony because he feared he had incurred the wrath of the Harry Potter community. He reportedly has no hard feelings towards Rowling.