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IP/Entertainment Case Law Updates

Warner Bros. Entertainment Inc., et al. v. RDR Books, et al.

The district court held that an unauthorized encyclopedia based on the seven Harry Potter novels and two companion books written by J. K. Rowling was substantially similar to and infringed upon the Harry Potter works, by violating Rowling’s right to reproduce the works, and was not protected by fair use. However, the court also found that the unauthorized encyclopedia was not a derivative work of the original Harry Potter works because it does not recast the material in another medium, but instead “gives the copyrighted material another purpose,” i.e. an easily accessible reference guide to the individual elements in the elaborate world of Harry Potter.

The defendant planned on publishing The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials which contains 2,437 entries that describe the creatures, characters, objects, events and places that exist in the fictional Harry Potter world. According to the court, many of the entries contain verbatim language from the Harry Potter novels and companion books, often without quotations.

Even though the encyclopedia is based on Rowling’s works, the court held it is not a derivative work. “A work is not derivative . . . simply because it is ‘based upon’ the preexisting works.” The court explicitly rejected the plaintiffs’ argument that companion guides constitute derivative works where, as is the case here, they contain a substantial amount of material from the underlying work. The court explained that by condensing, synthesizing, and reorganizing the preexisting material in an A-to-Z reference guide, 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. That purpose is to give the reader a ready understanding of individual elements in the elaborate world of Harry Potter that appear in voluminous and diverse sources. As a result, the Lexicon no longer ‘represents [the] original work[s] of authorship.’”

Turning to whether The Lexicon infringed Rowling’s right of reproduction in her copyrighted works, the court applied the quantitative/qualitative test to determine if the works are substantially similar, explaining that because Rowling’s works are wholly original, a lower quantity of copying will support a finding of substantial similarity. The court held that The Lexicon copies a sufficient quantity of the Harry Potter works to support a finding of substantial similarity, noting that most of the 2,437 entries contain direct quotations from Rowling’s works and that each “fact” reported in The Lexicon is actually expression created by Rowling. “Even if expression is or can be used in its ‘factual capacity,’ it does not follow that expression thereby takes on the status of fact and loses its copyrightability.” The court also held that the plot summaries that appear in The Lexicon are substantially similar to the Rowling works, and the court rejected the defendant's argument that The Lexicon is not substantially similar because it puts the material in alphabetical order, which differs from the order of the material in the Rowling books.

The court then applied the four-factor fair use analysis and concluded that the defendant’s use of Rowling’s works is not a fair use. The court held that The Lexicon is transformative in relation to the Harry Potter novels because it serves as a reference guide and not as entertainment, but it is only slightly transformative in relation to Rowling’s companion books which also serve as guides to characters and objects in the Harry Potter world. The court distinguished The Lexicon from a trivia book based on the Seinfeld television show (see Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132 (2d Cir. 1998)), which the court characterized as having the same entertaining purpose as the television show, and from books that summarized the Twin Peaks and Star Trek television shows, which the court said were abridgements of the series and were not transformative. (See Twin Peaks Prods., Inc. v. Publ’ns Int’l, Ltd., 996 F.2d 1366 (2d Cir. 1993) and Paramount Pictures Corp. v. Carol Publ’g Group, 11 F. Supp. 2d 329 (S.D.N.Y. 1998).)

The court rejected the plaintiffs’ argument that The Lexicon is not transformative because it lacks commentary or analysis. The court explained that The Lexicon “does not purport to be a work of literary criticism or to constitute a fair use on that basis; and its lack of critical analysis, linguistic understanding, or clever humor is not determinative of whether or not its purpose is transformative.” The court also held that the amount of verbatim copying diminished the transformative nature of the work and tilted the third factor against a finding of fair use.

Finally, the court held that reading The Lexicon would not likely be a substitute for reading the Harry Potter novels and therefore would not impair sales of the Harry Potter novels, but The Lexicon was likely to impair the sales of Rowling’s companion books. The court enjoined the defendant from publishing The Lexicon and awarded the plaintiffs the minimum statutory damages of $750 for each of the nine works that was infringed.

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