Warner Bros. Entertainment Inc. v. Rdr Books

575 F.Supp.2d 513 (2008)

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Nature of the Case

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Facts

Rowling (P) is the author of the highly acclaimed Harry Potter book series. It is a tale of a fictional world filled with magical spells, fantastical creatures, and imaginary places and things. Warner Bros. (P) obtained the exclusive film rights to the entire seven-book Harry Potter series. Rowling (P) has stated on a number of occasions since 1998 that she plans to publish a 'Harry Potter encyclopedia' after the completion of the series and again donate the proceeds to charity. She intends her encyclopedia contain alphabetical entries for the various people, places, and things from the Harry Potter novels. She intends to add new material as well, her encyclopedia is expected to reflect all of the information in the Harry Potter series. She already has begun preparations for work on the encyclopedia by assembling her materials and requesting from her U.K. publisher its 'bible' of Harry Potter materials. The publisher's 'bible' is a catalog of the people, places, and things from the Harry Potter books. The U.S. publisher has compiled a similar catalog of elements from the Harry Potter books that Rowling (P) has requested and intends to draw on in creating her encyclopedia. D is a Michigan-based publishing company that seeks to publish a book entitled 'The Lexicon.' Steven Vander Ark (P), a former library media specialist at a middle school in Michigan is the attributed author of the Lexicon. He is also the originator, owner, and operator of 'The Harry Potter Lexicon' website, a popular Harry Potter fan site from which the content of the Lexicon is drawn. Vander Ark (D) is a rabid fan of Harry Potter. He began to create descriptive lists of the spells, characters, and fictional objects in Harry Potter to share with fellow fans. These lists included brief descriptions or definitions of the terms. He created a website that featured descriptive lists of spells, characters, creatures, and magical items from Harry Potter with hyperlinks to cross-referenced entries. Vander Ark (D) developed an A-to-Z index for each list to allow users to search for entries alphabetically. The website presently features several indexed lists of people, places, and things from Harry Potter, including the 'Encyclopedia of Spells,' 'Encyclopedia of Potions,' 'Wizards, Witches, and Beings,' 'The Bestiary,' and 'Gazetteer of the Wizarding World.' The website contains a variety of supplemental material pertaining to Harry Potter, including fan art, commentary, essays, timelines, forums, and interactive data. The website is currently run by a staff of seven or eight volunteers, including four primary editors, all of whom were recruited to help update and expand the website's content after the publication of the fifth book in the Harry Potter series. The website uses minimal advertising to offset the costs of operation. Use of the website is free and unrestricted. The content is drawn primarily from the Harry Potter series, the companion books, 'The Daily Prophet' newsletters, the 'Famous Wizard Cards,' and published interviews with Rowling (P). Vander Ark (D) also included additional information from outside sources or his own knowledge to enrich the experience of readers of the Harry Potter series by illuminating 'the incredibly rich world and hidden meanings' contained within them. Vander Ark (D) has received positive feedback, including from Rowling (P) and her publishers, about the value of the Lexicon website as a reference source. In May 2004, Vander Ark (D) read a remark by Rowling (P) posted on her website praising his Lexicon website as follows: 'This is such a great site that I have been known to sneak into an internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing). A website for the dangerously obsessive; my natural home.' In July 2005, Vander Ark (D) received a note from Cheryl Klein, a Senior Editor at Scholastic Inc., the American publisher of the Harry Potter series, thanking him and his staff 'for the wonderful resource [his] site provides for fans, students, and indeed editors & copyeditors of the Harry Potter series,' who 'referred to the Lexicon countless times during the editing of [the sixth book in the series], whether to verify a fact, check a timeline, or get a chapter & book reference for a particular event.' In September 2006, Vander Ark (D) was invited by Warner Brothers (P) to the set of the film The Order of the Phoenix, where he met David Heyman, the producer of all the Harry Potter films. Heyman told Vander Ark (D) that Warner Brothers (P) used the Lexicon website almost every day. In July 2007, Vander Ark (D) visited the studios of Electronic Arts, the licensed producer of the Harry Potter video games, where he observed printed pages from the Lexicon covering the walls of the studio. In June 2007, just before the release of the seventh book, Vander Ark (D) emailed Christopher Little Literary Agency, Rowling's (P) literary agent in the United Kingdom, and suggested that he would be 'a good candidate for work as an editor, given [his] work on the Lexicon,' should Rowling (P) start working on an encyclopedia or other reference to the Harry Potter series. Rowling (P) intended to work alone and did not require a collaborator. D contacted Vander Ark (D) on August 6, 2007, about the possibility of publishing a Harry Potter encyclopedia based on some of the materials from the Lexicon website. Vander Ark (D) was concerned about copyright violations but Vander Ark changed his mind about publishing the Lexicon after D reassured him that they had looked into the legal issue and determined that publication of content from the Lexicon website in book form was legal. Once Ps learned of the project they immediately requested that D cease publication of the book. After a series of failed back and forths, Ps filed suit on October 31, 2007. The Lexicon manuscript is more than 400 type-written pages long and contains 2,437 entries organized alphabetically. The first few pages contain a list of abbreviations used throughout the Lexicon to cite the original sources of the material. The Lexicon itself makes clear that the only source of its content is the work of J.K. Rowling. The first page of the Lexicon manuscript states: 'All the information in the Harry Potter Lexicon comes from J.K. Rowling, either in the novels, the 'schoolbooks,' from her interviews, or from material which she developed or wrote herself.' The Lexicon entries cull every item and character that appears in the Harry Potter works. The entries cover every spell, potion, magical item or device, form of magic, creature, character, group or force, invented game, and imaginary place that appears in the Harry Potter works. The Lexicon also contains entries for items that are not explicitly named in the Harry Potter works but which Vander Ark (D) has identified, such as medical magic, candle magic, wizard space, wizard clothing, and remorse. Some of the entries describe places or things that exist in the real world but also have a place in the Harry Potter works, such as moors, Greece, and Cornwall. The snippets of information in the entries are generally followed by citations in parentheses that indicate where they were found within the corpus of the Harry Potter works. The thoroughness of the Lexicon's citation, however, is not consistent; some entries contain very few citations in relation to the amount of material provided. The Lexicon includes commentary and background information from outside knowledge on occasion. Rowling (P) testified that the Lexicon took 'all the highlights of [her] work, in other words [her] characters' secret history, the jokes certainly, certain exciting narrative twists, all the things that are the highlights of [her] stories.' Rowling (P) and her expert focused at length on the Lexicon's verbatim copying of language from the Harry Potter works.