HAI, JUDGE PATTERSON!
For those of you living under the most ginormous rock in the kingdom - or who don’t have flists that are alternately crowing and cursing - the Southern District of New York’s decision in WB vs. RDR came down yesterday. It’s 68 pages of legal analysis, but if you want to give it a shot, it’s surprisingly well-written for an opinion. (Lawyers and law students, fill in your tales of case-reading woe here.)
Short version: The court permanently enjoined RDR’s publication of the Lexicon book and awarded JKR/WB statutory damages. But it’s ever so much more interesting than that.
Note: Neither the case nor the opinion are in any way a referendum on: (i) whether or not filing a lawsuit against a fan to enjoin publication of a book makes you a beeyotch; (ii) the Morals and Ethics of publishing an encyclopedia after She of a Million Words has asked that you not; and (iii) whether we’re in a new era of fannish entitlement and appropriation in which a certain percentage of fans think that either (a) being a fan, or (b) fan sweat of the brow, for lack of a better term, gives you a certain moral ownership interest - though I’d be oh-so-interested in hosting a referendum on that last one.
That said, I’m going to make a special exception to the no-referendum rule for the Stanford Fair Use Project’s statement on the ruling. It’s here:
http://cyberlaw.stanford.edu/node/5859
Because what the fuck IS that? Because if it’s what it looks like, man, the Stanford Fair Use Project is getting a little passive-aggressive on Fandom_Wank, fandom in general and everyone who thinks that comparing a lawsuit to the bombing of Hiroshima is BATSHIT STUPID.
Sorry for the detour.
In front of me I have 68 pages of Judge Patterson’s (and his law clerks’) prose. While I am not quite that wordy, this is going to be looooooooong.
Fun note at the beginning of all things: The opinion was written before WB took a blowtorch, a shotgun and dental tools to millions of fans around the world changed the release date of HBP. On page 3, it references the original November release date.
There are a great many pages (almost 30) discussing the Harry Potter series, the Lexicon website and book, and the history of the case, not to mention a great lot of citing Lexicon entries against HP book text so the reader can see any similarities. If you don’t know what the Lexicon is, it’s an alphabetical encyclopedia of the HP series’ characters, spells, locations, beasts, etc. with explanatory entries that sometimes take a lot of JKR’s words and occasionally take none of hers, but mostly take some. If you don’t know what the Harry Potter series is, I’m afraid I cannot help you.
But when you arrive on page 29, the legal hoo-ha starts.
Prima Facie Case of Copyright Infringement
To establish a prima facie case of copyright infringement, WB/JKR have to show: (i) that they own a valid copyright; and (ii) that the Lexicon copied elements of that copyrighted work that are original.
Ignore “prima facie.” It’s fancy Latin for “by first instance” and it means that if WB/JKR demonstrated those two elements and RDR didn’t rebut them, WB/JKR win.
JKR/WB own the copyrights in the books and films. Moving along.
Well, stopping for a brief moment. There’s some rigamarole about JKR’s copyrights in the Daily Prophet newsletters and WB’s copyright in the video games, and basically, since evidence of those copyrights weren’t introduced at trial, they aren’t deemed infringed. Things only count if you introduce them properly into evidence, either at trial or by a court-approved other mechanism.
Showing copying (element two of the prima facie case of copyright infringement) also requires showing two things: (i) actual copying; and (ii) that the actual copying amounts to an improper or unlawful appropriation.
Actual copying here is easy. The defense admitted to actual copying.
The improper or unlawful appropriation is tougher, and here’s the legal shortcut: if the plaintiff can show that the defendant’s work bears a substantial similarity to protected expression in the plaintiff’s work, the plaintiff has done its job.
In other words:
JKR/WB: You copied!
Defense: Yes, we did.
JKR/WB: It was bad!
Defense: We’re going to dispute that.
JKR/WB: Ha, we’re going to show substantial similarity to our protected expression.
Make sense? I hope so, because it’s about to make a lot less sense.
Substantial Similarity
There are about 9,392,482 tests for substantial similarity roaming around the legal system, and all of them are about as useful as lipstick on a pig. Each court has a favorite, and in the Second Circuit, if the original and secondary works are in different genres, the test you’re supposed to use is whether “the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement has occurred.”
I’ll pause so you can bang your head on your desk.
The HP books and the Lexicon are (mostly, but see the schoolbooks) different genres because one is fiction and one is a reference book. So we’re stuck with the quantativeness and qualitativeness of the copying. (And if you think those are stupid, made-up words, you’re right.)
Quantitativeness
The quantitativeness of the copying is exactly what you would think it would be if quantitativeness were actually a word: the amount of the copyrighted work that is copied.
Basically, the answer here is “a lot.” The Pie Charts of Doom were basically thrown out for being less than 100% reliable, but the court cites a laundry list of cases where, randomly, 684 fragments from Seinfeld, 300-400 words (and making up 13% of the defendant’s work), 89 lines of dialogue, and so forth, were quantitative enough.
And thus the Court declared that regardless of whether the final percentage of words taken was 94% or 91% or something lower, the “thousands of fictional facts” taken from HP were enough to support the quantitative aspect of substantial similarity. Especially with regard to all that verbatim copying from the schoolbooks.
Qualitativeness
The qualitativeness of the copying refers to whether the Lexicon draws from creative, original expression in the HP books, as opposed to facts. And the HP books are all creative, original content.
But wait, then the Defendant argues that since “the Lexicon uses fictional facts primarily in their factual capacity” to “report information and where to find it”, qualitative copying doesn’t exist here, and thus there is no substantial similarity and no prima facie case of copyright infringement.
And here the Court basically rolls its eyes, sighs a bit, and engages in a ginormous discussion of whether a reference book that more or less treats fictional items as “facts” means that qualitative copying doesn’t exist and decides that, no, those “facts”, as they were, are still creative, original content since they are original to Rowling.
And then the Defendant argues that rearranging things in alphabetical order means that no qualitative copying exists. In other words, I rearranged your creativity into the amazing order of the alphabet, so I did not copy you, nyah. The Court declared that, too, poppycock in a paragraph of citations.
And it seemed so simple, this qualitative copying.
AND THEN, the Court goes on to say that qualitative copying can not only be direct copying (“fragmented literal similarity”, for the law geeks in the crowd), but also paraphrasing (“comprehensive nonliteral similarity”). So all that paraphrasing in the Lexicon comes into play, in addition to all the direct copying, and the Court says...
...yeah, there’s some qualitative copying going down.
AND THUS, we have substantial similarity.
To recap:
JKR/WB: You copied.
RDR: Indeed. Whatever.
JKR/WB: It’s actionable because it’s substantially similar in both quantity and quality to our stuff, h0r, despite your crackhead arguments about “factual references” and alphabetizing that you seem to think mean it doesn’t matter that you totally took our shit.
Court: Yeah, what they said.
RDR: Crap.
Law: JKR/WB have a prima facie case of copyright infringement. If RDR doesn’t have an excuse, JKR/WB for the win.
Derivative Work
There’s a small detour here that, I apologize, is going to take some citing of laws.
All of the above with the made-up words and the alphabetizing and so on means that JKR/WB’s exclusive right of reproduction of the copyright work is infringed. They also want the court to rule that their exclusive right to control derivative works is infringed.
And on this one, the court says no.
Here’s the statutory definition of a derivative work: “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”
“Based upon” isn’t enough to be a derivative work. You have to recast, transform or adapt, which requires that you turn the original work into “another medium, mode, language or revised version while still representing the original work of authorship.” We’re talking translations, abridged versions, movies, etc., rather than guidebooks. In other words, the Lexicon does not “recast” the material in another medium to retell the story of Harry Potter, but instead gives the copyrighted material another purpose.”
So WB/RDR showed a prima facie case of copyright infringement for their exclusive right of reproduction, but since the Lexicon does not recast the HP series, but rather turns it into another thing altogether, it is not a derivative work and WB/RDR’s exclusive right to control derivative works isn’t on the table.
One very small authorial note: This is where I get a bit confused, though the reasoning above makes perfect sense in a vacuum. In the real world, if the Lexicon isn't a derivative work...what is it? It's strikes me as odd that writing a reference guide infringes a copyright holder's exclusive right to reproduction instead of her right to create derivative works.
Fair Use
And the dreaded fair use.
Fair use was established by Congress as a policy matter. Congress wanted to give copyright holders rights over their works - after all, if it didn’t, why would the copyright holders want to share them with the world, just so others could take them?
But Congress didn’t want to give copyright holders a monopoly on their works because then you stifle creativity based on those works.
The compromise is fair use, and here’s what the statute says: “The fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
And that list, which is not exhaustive of fair use examples, is the usual: parody, scholarly articles, classroom use, news articles, book reviews, etc.
And as everyone ought to know by know, the test for whether a secondary work is fair use has four factors, which are balanced against each other. This is not a checklist, but a balancing act.
1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) The nature of the copyrighted work;
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) The effect of the use upon the potential market for or value of the copyrighted work.
The Court here looked primarily at the first and third factors, and examined them more or less in conjunction and here’s why: There are some uses that require taking a lot of the original work. The best example here is parody. Parody has to take enough of the original so the reader or viewer can understand, first, what the original is, and second, what the parody is commenting on. On the flip side, newspaper articles usually don’t need to take much of the original work to report the news. In the middle are probably scholarly articles, which quote, but then add substantial additional analysis.
It’s tough to examine the amount of the copyrighted work taken without looking at the purpose of the secondary use.
Purpose and Character of the Use
The question here is whether or not the secondary use is “transformative.” (And if you think of much wand-waving and flourishing when you say the word “transformative”, you’ll have a pretty good idea of how important that particular word is in copyright law.) In other words, does the new work merely do what the original did, or does it add something new? Adding something new - adding value, if you will - is good here. Transforming the original work into something new is, as a policy matter, worthy of protection.
For the RDR case, this cuts both ways, and ultimately, the court finds that the Lexicon is, uh, sort of transformative.
- Turning HP into a reference guide instead of a fictional book: Good for RDR
- Turning the more-or-less reference guide schoolbooks into another reference guide: Bad for RDR
- Ripping off lots of JKR’s words: Bad for RDR (Verbatim copying, perhaps unsurprisingly, means less transformation)
- Inconsistent and incomplete academic citations: Bad for RDR (If the Lexicon fails as a reference guide, it didn’t turn the HP books into a reference guide)
Happily for me, my favorite quirk of copyright law survives: To be transformative, the secondary user doesn’t have to turn the copyright work into something good. The Lexicon doesn’t have to be a good reference guide for this fair use factor to come down in its favor. Let the makers of shitty transformative works rejoice!
A couple additional points in this first factor:
Commerciality of the use is specifically mentioned in the statute, but courts don’t much care, and obviously in this case, the Lexicon book is commercial.
Whether the defendant acted in good or bad faith counts, but not really in this case. Despite that RDR’s actions look ridiculous most of the time, the court only gives JKR/WB a little bit of weight on this one because they can only show that RDR delayed and was obnoxious, not that he proceeded while secretly thinking the book wasn’t fair use.
Factor One: You have to wait because the Court looked at the first and third factors together before declaring them for the plaintiff or defendant.
Amount and Substantiality of the Use
Did SVA take more of the HP books original expression (fictional facts, specific words, etc.) than he needed to make a reference guide?
So, kind of, eh, he had to take some to be a comprehensive reference guide, but did he have to take all those direct quotes and do all that paraphrasing?
And you’re going to be so excited because we’re back to quality and quantity of the copyrighted materials used.
But mostly, this section is a lot of yammering about how you have to take a lot to make a comprehensive reference guide, but SVA really, really took a lot lot what with the direct quotes and the paraphrasing and do you have to use “like miniature hammers on anvils” to describe “clankers”, and overall, it pretty much comes down to...
...the Lexicon book has too damn much verbatim copying and paraphrasing, especially of the schoolbooks, but there’s enough of even the seven HP books taken that this factor - even when tempered by the sort-of transformation of turning seven HP books and two sort-of reference books into reference books - weighs in for the plaintiffs.
It seems you can described “clankers” without using “like miniature hammers on anvils.”
Factors One and Three: In favor of the plaintiff.
Nature of the Copyrighted Work
Basically, this asks whether the copyrighted work is fictional, which goes to the heart of copyright’s policy, or factual in nature. Fictional works get stronger protection, and fair use is less likely to be found in cases of fictional works.
Despite astral plane marriages, the HP books are fictional.
Factor Two: In favor of the plaintiff.
Market Harm
Does the secondary work harm the market for the original?
Notably, the plaintiffs tried to argue that the Lexicon book would harm the market for JKR’s planned encyclopedia. Because the Lexicon isn’t a derivative work, the Court said it can legally compete with JKR’s encyclopedia. She doesn’t get exclusive control over the market for reference guides because those are not derivative works. If they were derivative works, she’d have exclusive control over them. But they aren’t. So hie thee off to write reference guides.
Basically, the court found that a reference guide is unlikely to harm the market for the HP books, but a reference guide that incorporates damn near all of the schoolbooks may harm the market for the schoolbooks. And that schoolbooks thing tips this factor in favor of the plaintiffs.
There’s also a throwaway paragraph in here about JKR’s future derivative works that’s really confusing considering what the Court just said about guides not being derivative works. Once you get into it, though, it’s a very silly paragraph about how JKR has the right to license, for example, making her lyrics (say, the Sorting Hat songs) into actual songs and the Lexicon book might harm that market by reproducing those lyrics verbatim. I kid you not.
Factor Four: Slightly in favor of the plaintiffs.
And that, folks, means no fair use. The first factor is probably in favor of the Defendant, until the big boot of the third factor comes in and tips both to the Plaintiff. The second factor goes to the plaintiff, and even the fourth factor goes slightly to the Plaintiff.
The Lexicon book did too much verbatim copying and paraphrasing, so it’s not excused under fair use and it’s an infringement of JKR/WB’s rights as copyright holders. Tranformative works are cool; this transformative work isn't so cool.
Random Notes
Permanent Injunction
The biggest smack here isn’t the damages, it’s the permanent injunction. The Court held that RDR can’t publish the Lexicon in the form that was submitted to the court. Can it publish a revised version? Sure, this case is about this particular book, period - though if it’s not revised enough that JKR/WB think it’s no longer fair use, we might end up right back in Judge Patterson’s courtroom.
There’s a lot of stuff in the injunction section about irreparable harm, which you have to have to issue an injunction. If the harm isn’t irreparable, courts would much rather award money damages instead of making someone do something or not do something, which is what an injunction does.
It’s in the discussion of irreparable harm that the discussion of JKR’s statements that having the Lexicon published will make her less likely to publish her encyclopedia. And before we have to get in to whether you care or not or whether the Lexicon would be more factually accurate, let me point out that irreparable harm means irreparable harm to JKR, not the public.
Damages
The Court awarded the minimum damages under statute, $750 for nine books (seven HP books; two schoolbooks). This has not a damned thing to do with the merits of the case or whether it was close or anything else other than the fact that the Lexicon book wasn’t published yet, and therefore caused JKR/WB minimal damage other than the infringement itself.
And that is that. I bet Judge Patterson is sooooooo excited to get the crazies out of his courtroom, what with the fictional references and the pie charts and all the crying.
Short version: The court permanently enjoined RDR’s publication of the Lexicon book and awarded JKR/WB statutory damages. But it’s ever so much more interesting than that.
Note: Neither the case nor the opinion are in any way a referendum on: (i) whether or not filing a lawsuit against a fan to enjoin publication of a book makes you a beeyotch; (ii) the Morals and Ethics of publishing an encyclopedia after She of a Million Words has asked that you not; and (iii) whether we’re in a new era of fannish entitlement and appropriation in which a certain percentage of fans think that either (a) being a fan, or (b) fan sweat of the brow, for lack of a better term, gives you a certain moral ownership interest - though I’d be oh-so-interested in hosting a referendum on that last one.
That said, I’m going to make a special exception to the no-referendum rule for the Stanford Fair Use Project’s statement on the ruling. It’s here:
http://cyberlaw.stanford.edu/node/5859
Because what the fuck IS that? Because if it’s what it looks like, man, the Stanford Fair Use Project is getting a little passive-aggressive on Fandom_Wank, fandom in general and everyone who thinks that comparing a lawsuit to the bombing of Hiroshima is BATSHIT STUPID.
Sorry for the detour.
In front of me I have 68 pages of Judge Patterson’s (and his law clerks’) prose. While I am not quite that wordy, this is going to be looooooooong.
Fun note at the beginning of all things: The opinion was written before WB took a blowtorch, a shotgun and dental tools to millions of fans around the world changed the release date of HBP. On page 3, it references the original November release date.
There are a great many pages (almost 30) discussing the Harry Potter series, the Lexicon website and book, and the history of the case, not to mention a great lot of citing Lexicon entries against HP book text so the reader can see any similarities. If you don’t know what the Lexicon is, it’s an alphabetical encyclopedia of the HP series’ characters, spells, locations, beasts, etc. with explanatory entries that sometimes take a lot of JKR’s words and occasionally take none of hers, but mostly take some. If you don’t know what the Harry Potter series is, I’m afraid I cannot help you.
But when you arrive on page 29, the legal hoo-ha starts.
Prima Facie Case of Copyright Infringement
To establish a prima facie case of copyright infringement, WB/JKR have to show: (i) that they own a valid copyright; and (ii) that the Lexicon copied elements of that copyrighted work that are original.
Ignore “prima facie.” It’s fancy Latin for “by first instance” and it means that if WB/JKR demonstrated those two elements and RDR didn’t rebut them, WB/JKR win.
JKR/WB own the copyrights in the books and films. Moving along.
Well, stopping for a brief moment. There’s some rigamarole about JKR’s copyrights in the Daily Prophet newsletters and WB’s copyright in the video games, and basically, since evidence of those copyrights weren’t introduced at trial, they aren’t deemed infringed. Things only count if you introduce them properly into evidence, either at trial or by a court-approved other mechanism.
Showing copying (element two of the prima facie case of copyright infringement) also requires showing two things: (i) actual copying; and (ii) that the actual copying amounts to an improper or unlawful appropriation.
Actual copying here is easy. The defense admitted to actual copying.
The improper or unlawful appropriation is tougher, and here’s the legal shortcut: if the plaintiff can show that the defendant’s work bears a substantial similarity to protected expression in the plaintiff’s work, the plaintiff has done its job.
In other words:
JKR/WB: You copied!
Defense: Yes, we did.
JKR/WB: It was bad!
Defense: We’re going to dispute that.
JKR/WB: Ha, we’re going to show substantial similarity to our protected expression.
Make sense? I hope so, because it’s about to make a lot less sense.
Substantial Similarity
There are about 9,392,482 tests for substantial similarity roaming around the legal system, and all of them are about as useful as lipstick on a pig. Each court has a favorite, and in the Second Circuit, if the original and secondary works are in different genres, the test you’re supposed to use is whether “the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement has occurred.”
I’ll pause so you can bang your head on your desk.
The HP books and the Lexicon are (mostly, but see the schoolbooks) different genres because one is fiction and one is a reference book. So we’re stuck with the quantativeness and qualitativeness of the copying. (And if you think those are stupid, made-up words, you’re right.)
Quantitativeness
The quantitativeness of the copying is exactly what you would think it would be if quantitativeness were actually a word: the amount of the copyrighted work that is copied.
Basically, the answer here is “a lot.” The Pie Charts of Doom were basically thrown out for being less than 100% reliable, but the court cites a laundry list of cases where, randomly, 684 fragments from Seinfeld, 300-400 words (and making up 13% of the defendant’s work), 89 lines of dialogue, and so forth, were quantitative enough.
And thus the Court declared that regardless of whether the final percentage of words taken was 94% or 91% or something lower, the “thousands of fictional facts” taken from HP were enough to support the quantitative aspect of substantial similarity. Especially with regard to all that verbatim copying from the schoolbooks.
Qualitativeness
The qualitativeness of the copying refers to whether the Lexicon draws from creative, original expression in the HP books, as opposed to facts. And the HP books are all creative, original content.
But wait, then the Defendant argues that since “the Lexicon uses fictional facts primarily in their factual capacity” to “report information and where to find it”, qualitative copying doesn’t exist here, and thus there is no substantial similarity and no prima facie case of copyright infringement.
And here the Court basically rolls its eyes, sighs a bit, and engages in a ginormous discussion of whether a reference book that more or less treats fictional items as “facts” means that qualitative copying doesn’t exist and decides that, no, those “facts”, as they were, are still creative, original content since they are original to Rowling.
And then the Defendant argues that rearranging things in alphabetical order means that no qualitative copying exists. In other words, I rearranged your creativity into the amazing order of the alphabet, so I did not copy you, nyah. The Court declared that, too, poppycock in a paragraph of citations.
And it seemed so simple, this qualitative copying.
AND THEN, the Court goes on to say that qualitative copying can not only be direct copying (“fragmented literal similarity”, for the law geeks in the crowd), but also paraphrasing (“comprehensive nonliteral similarity”). So all that paraphrasing in the Lexicon comes into play, in addition to all the direct copying, and the Court says...
...yeah, there’s some qualitative copying going down.
AND THUS, we have substantial similarity.
To recap:
JKR/WB: You copied.
RDR: Indeed. Whatever.
JKR/WB: It’s actionable because it’s substantially similar in both quantity and quality to our stuff, h0r, despite your crackhead arguments about “factual references” and alphabetizing that you seem to think mean it doesn’t matter that you totally took our shit.
Court: Yeah, what they said.
RDR: Crap.
Law: JKR/WB have a prima facie case of copyright infringement. If RDR doesn’t have an excuse, JKR/WB for the win.
Derivative Work
There’s a small detour here that, I apologize, is going to take some citing of laws.
All of the above with the made-up words and the alphabetizing and so on means that JKR/WB’s exclusive right of reproduction of the copyright work is infringed. They also want the court to rule that their exclusive right to control derivative works is infringed.
And on this one, the court says no.
Here’s the statutory definition of a derivative work: “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”
“Based upon” isn’t enough to be a derivative work. You have to recast, transform or adapt, which requires that you turn the original work into “another medium, mode, language or revised version while still representing the original work of authorship.” We’re talking translations, abridged versions, movies, etc., rather than guidebooks. In other words, the Lexicon does not “recast” the material in another medium to retell the story of Harry Potter, but instead gives the copyrighted material another purpose.”
So WB/RDR showed a prima facie case of copyright infringement for their exclusive right of reproduction, but since the Lexicon does not recast the HP series, but rather turns it into another thing altogether, it is not a derivative work and WB/RDR’s exclusive right to control derivative works isn’t on the table.
One very small authorial note: This is where I get a bit confused, though the reasoning above makes perfect sense in a vacuum. In the real world, if the Lexicon isn't a derivative work...what is it? It's strikes me as odd that writing a reference guide infringes a copyright holder's exclusive right to reproduction instead of her right to create derivative works.
Fair Use
And the dreaded fair use.
Fair use was established by Congress as a policy matter. Congress wanted to give copyright holders rights over their works - after all, if it didn’t, why would the copyright holders want to share them with the world, just so others could take them?
But Congress didn’t want to give copyright holders a monopoly on their works because then you stifle creativity based on those works.
The compromise is fair use, and here’s what the statute says: “The fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
And that list, which is not exhaustive of fair use examples, is the usual: parody, scholarly articles, classroom use, news articles, book reviews, etc.
And as everyone ought to know by know, the test for whether a secondary work is fair use has four factors, which are balanced against each other. This is not a checklist, but a balancing act.
1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) The nature of the copyrighted work;
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) The effect of the use upon the potential market for or value of the copyrighted work.
The Court here looked primarily at the first and third factors, and examined them more or less in conjunction and here’s why: There are some uses that require taking a lot of the original work. The best example here is parody. Parody has to take enough of the original so the reader or viewer can understand, first, what the original is, and second, what the parody is commenting on. On the flip side, newspaper articles usually don’t need to take much of the original work to report the news. In the middle are probably scholarly articles, which quote, but then add substantial additional analysis.
It’s tough to examine the amount of the copyrighted work taken without looking at the purpose of the secondary use.
Purpose and Character of the Use
The question here is whether or not the secondary use is “transformative.” (And if you think of much wand-waving and flourishing when you say the word “transformative”, you’ll have a pretty good idea of how important that particular word is in copyright law.) In other words, does the new work merely do what the original did, or does it add something new? Adding something new - adding value, if you will - is good here. Transforming the original work into something new is, as a policy matter, worthy of protection.
For the RDR case, this cuts both ways, and ultimately, the court finds that the Lexicon is, uh, sort of transformative.
- Turning HP into a reference guide instead of a fictional book: Good for RDR
- Turning the more-or-less reference guide schoolbooks into another reference guide: Bad for RDR
- Ripping off lots of JKR’s words: Bad for RDR (Verbatim copying, perhaps unsurprisingly, means less transformation)
- Inconsistent and incomplete academic citations: Bad for RDR (If the Lexicon fails as a reference guide, it didn’t turn the HP books into a reference guide)
Happily for me, my favorite quirk of copyright law survives: To be transformative, the secondary user doesn’t have to turn the copyright work into something good. The Lexicon doesn’t have to be a good reference guide for this fair use factor to come down in its favor. Let the makers of shitty transformative works rejoice!
A couple additional points in this first factor:
Commerciality of the use is specifically mentioned in the statute, but courts don’t much care, and obviously in this case, the Lexicon book is commercial.
Whether the defendant acted in good or bad faith counts, but not really in this case. Despite that RDR’s actions look ridiculous most of the time, the court only gives JKR/WB a little bit of weight on this one because they can only show that RDR delayed and was obnoxious, not that he proceeded while secretly thinking the book wasn’t fair use.
Factor One: You have to wait because the Court looked at the first and third factors together before declaring them for the plaintiff or defendant.
Amount and Substantiality of the Use
Did SVA take more of the HP books original expression (fictional facts, specific words, etc.) than he needed to make a reference guide?
So, kind of, eh, he had to take some to be a comprehensive reference guide, but did he have to take all those direct quotes and do all that paraphrasing?
And you’re going to be so excited because we’re back to quality and quantity of the copyrighted materials used.
But mostly, this section is a lot of yammering about how you have to take a lot to make a comprehensive reference guide, but SVA really, really took a lot lot what with the direct quotes and the paraphrasing and do you have to use “like miniature hammers on anvils” to describe “clankers”, and overall, it pretty much comes down to...
...the Lexicon book has too damn much verbatim copying and paraphrasing, especially of the schoolbooks, but there’s enough of even the seven HP books taken that this factor - even when tempered by the sort-of transformation of turning seven HP books and two sort-of reference books into reference books - weighs in for the plaintiffs.
It seems you can described “clankers” without using “like miniature hammers on anvils.”
Factors One and Three: In favor of the plaintiff.
Nature of the Copyrighted Work
Basically, this asks whether the copyrighted work is fictional, which goes to the heart of copyright’s policy, or factual in nature. Fictional works get stronger protection, and fair use is less likely to be found in cases of fictional works.
Despite astral plane marriages, the HP books are fictional.
Factor Two: In favor of the plaintiff.
Market Harm
Does the secondary work harm the market for the original?
Notably, the plaintiffs tried to argue that the Lexicon book would harm the market for JKR’s planned encyclopedia. Because the Lexicon isn’t a derivative work, the Court said it can legally compete with JKR’s encyclopedia. She doesn’t get exclusive control over the market for reference guides because those are not derivative works. If they were derivative works, she’d have exclusive control over them. But they aren’t. So hie thee off to write reference guides.
Basically, the court found that a reference guide is unlikely to harm the market for the HP books, but a reference guide that incorporates damn near all of the schoolbooks may harm the market for the schoolbooks. And that schoolbooks thing tips this factor in favor of the plaintiffs.
There’s also a throwaway paragraph in here about JKR’s future derivative works that’s really confusing considering what the Court just said about guides not being derivative works. Once you get into it, though, it’s a very silly paragraph about how JKR has the right to license, for example, making her lyrics (say, the Sorting Hat songs) into actual songs and the Lexicon book might harm that market by reproducing those lyrics verbatim. I kid you not.
Factor Four: Slightly in favor of the plaintiffs.
And that, folks, means no fair use. The first factor is probably in favor of the Defendant, until the big boot of the third factor comes in and tips both to the Plaintiff. The second factor goes to the plaintiff, and even the fourth factor goes slightly to the Plaintiff.
The Lexicon book did too much verbatim copying and paraphrasing, so it’s not excused under fair use and it’s an infringement of JKR/WB’s rights as copyright holders. Tranformative works are cool; this transformative work isn't so cool.
Random Notes
Permanent Injunction
The biggest smack here isn’t the damages, it’s the permanent injunction. The Court held that RDR can’t publish the Lexicon in the form that was submitted to the court. Can it publish a revised version? Sure, this case is about this particular book, period - though if it’s not revised enough that JKR/WB think it’s no longer fair use, we might end up right back in Judge Patterson’s courtroom.
There’s a lot of stuff in the injunction section about irreparable harm, which you have to have to issue an injunction. If the harm isn’t irreparable, courts would much rather award money damages instead of making someone do something or not do something, which is what an injunction does.
It’s in the discussion of irreparable harm that the discussion of JKR’s statements that having the Lexicon published will make her less likely to publish her encyclopedia. And before we have to get in to whether you care or not or whether the Lexicon would be more factually accurate, let me point out that irreparable harm means irreparable harm to JKR, not the public.
Damages
The Court awarded the minimum damages under statute, $750 for nine books (seven HP books; two schoolbooks). This has not a damned thing to do with the merits of the case or whether it was close or anything else other than the fact that the Lexicon book wasn’t published yet, and therefore caused JKR/WB minimal damage other than the infringement itself.
And that is that. I bet Judge Patterson is sooooooo excited to get the crazies out of his courtroom, what with the fictional references and the pie charts and all the crying.