A judge's ruling barring publication of the “The Harry Potter Lexicon” shows the publisher ultimately could not overcome “Potter” author J.K. Rowling's argument that the reference guide to her works “has taken too much, and done too little.”

Rowling this week prevailed in her copyright infringement case against RDR Books as U.S. District Judge Robert P. Patterson of New York ruled that the Lexicon was not sufficiently “transformative” of her books to constitute a fair use of them.

RDR had portrayed the Lexicon as a “valuable and useful tool to find and remember details from [the] elaborate world that Ms. Rowling has created.” “Potter” fanatic Steven Vander Ark wrote the guide using material from a fan website he started in 2000.

“[T]he question of transformation, your Honor, centers not on what the Lexicon uses; it centers on how it's used, to what end and to what purpose,” RDR attorney Anthony Falzone of the Stanford Law School Fair Use Project argued during a bench trial.

But Patterson said that while “the Lexicon uses the Harry Potter series for a transformative purpose,” Vander Ark's execution of that purpose involved too much “verbatim copying” of the books and too little original analysis and insight.

“[T]he Lexicon copies distinctive original language from the Harry Potter works in excess of its otherwise legitimate purpose of creating a reference guide,” he said in granting Rowling a permanent injunction on its publication. Under copyright law, a fair use copier “must copy no more than is reasonably necessary” from the original work.

The decision in large part agreed with the trial arguments of Rowling attorney Dale Cendali, who said that “unlike the many books about Harry Potter on the market, including other A-to-Z guides, the Lexicon both takes too much and does too little.”

“The evidence will show that as much as RDR tries to make a silk's purse out of a sow's ear, the Lexicon is still a sow's ear,” she said.

As far as additional material, Falzone countered that the Lexicon “provides some original thoughts and suggestions about what makes the key characters in the Harry Potter world tick,” citing the entries on Neville Longbottom, Luna Lovegood and Draco Malfoy.

“There is simply no good reason, your Honor, to make the Lexicon disappear,” he insisted.

In her testimony, Rowling went way overboard, accusing Vander Ark of the “wholesale theft of 17 years of hard work” and of “debas[ing] what I worked so hard to create.” “I think it's lazy, just very, very lazy,” she fumed.

As Columbia Law School professor Tim Wu has pointed out in Slate, “[I]t is hardly the job of copyright to protect us from bad execution ... What [Rowling] wants is a level of control over the Potter world that just isn't healthy."

But Patterson found the Lexicon's use of the original "Harry Potter" books was "not consistently transformative” and concluded that

because the Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same and thus deplete the incentive for original authors to create new works.

By Matthew Heller
9/9/08