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Trial Begins in Harry Potter Lexicon Case

Publication Date: 
April 14, 2008
Source: 
Stanford Law School

Stanford Law School’s Fair Use Project Defends RDR Books against Copyright Lawsuit Brought by J.K. Rowling and Warner Bros.

STANFORD, Calif., April 14, 2008—A federal court in New York will hear opening arguments today over whether an independent book publisher has the right to publish the Harry Potter Lexicon, an unofficial reference guide to the Harry Potter series of books and movies.

In a trial that is expected to last two to three days, attorneys from the Fair Use Project of Stanford Law School’s Center for Internet and Society, along with co-counsel, will argue that their client, RDR Books, has the right to publish the Lexicon under the fair use doctrine. The doctrine safeguards the use of copyrighted material so long as it is used transformatively and does not damage the market value of the original work.

The suit began on October 31, 2007, when Warner Bros., which owns the film rights to the Harry Potter books, and Harry Potter author J.K Rowling filed a lawsuit in the U.S. District Court for the Southern District of New York to block the Lexicon’s publication.

“J.K. Rowling and Warner Bros. are asserting a startling claim,” said Anthony Falzone, executive director of the Fair Use Project and counsel on the case. “The right to create literary reference guides like the Lexicon has remained nearly unquestioned for hundreds of years. The Lexicon is a valuable resource that helps people better understand and enjoy the Harry Potter books. It’s exactly what copyright law should encourage, not suppress.”

Falzone and Fair Use Project Associate Director Julie Ahrens join RDR’s lead trial counsel David S. Hammer, a former federal prosecutor, and RDR’s long-time counsel Lizbeth Hasse, founding partner of the San Francisco-based Creative Industry Law Group.

“All of the material that’s going to be published in the Lexicon has been available on the Harry Potter Lexicon website for a long time without objection from Ms. Rowling or anyone else,” said Hammer. “To suggest that the Lexicon might affect the market for a companion guide Ms. Rowling plans to publish some day, perhaps years from now, is inconceivable given her stature and reputation.”

“It is important that perspectives of lesser-known authors and small publishers like RDR Books also be published,” said Hasse. “Copyright law recognizes their right to research and comment on popular works.”

RDR Books planned to release the Lexicon in the United States on November 28, 2007. The 400-page book is a print counterpart to the fan-created website, The Harry Potter Lexicon, which includes information on the series’ characters, places, animals, magic spells, and potions along with atlases, timelines, and analyses of magical theory. Created in 2000 by librarian Steve Vander Ark and several contributors, the site has an estimated 25 million annual visitors and the content is free of charge. Among the site’s supporters is J.K. Rowling, who bestowed the HPL with a Fan Site Award in 2004 and wrote on her website: “This is such a great site that I have been known to sneak into an Internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing).”

“The importance of this case goes beyond the world of Harry Potter and its fans. This decision could have a far-reaching impact on the literary landscape, and beyond, to discussions of any fictional work in any medium,” said Lawrence Lessig, founder and director of Stanford Law School’s Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law, who is co-counsel on the case. “It’s essential for copyright law to leave room for others to build on creative works. That’s the point of fair use.”

The suit filed on October 31, 2007 claimed that RDR Books and unnamed defendants misappropriated Rowling’s “fictional characters and universe” in violation of the Copyright Act, the Lanham Act, and New York state law. On November 8, 2007, Judge Robert B. Patterson Jr. issued a temporary restraining order, voluntarily entered into by both parties, delaying RDR’s completion and distribution of the book.

The case, Warner Bros. Entertainment Inc. et al v. RDR Books et al, is being heard by Judge Patterson at the Daniel Patrick Moynihan United States Courthouse in New York, N.Y.

More details about the case can be found on Anthony Falzone's blog. Case documents are available here.

About the Fair Use Project

The Stanford Center for Internet and Society’s Fair Use Project (“the FUP”) was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify and extend the boundaries of “fair use” in order to enhance creative freedom. The FUP represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights. In doing so, it relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations who are dedicated to advancing the mission of the FUP.

About the Center for Internet and Society

Founded by Stanford Law Professor Lawrence Lessig in 2001, the Center for Internet and Society is a public interest technology law and policy program at Stanford Law School that engages students, academics, technologists and policy makers in exploring the interactions between technology, law, and society.

About Lawrence Lessig

Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School, is a leading figure in the United States and abroad in intellectual property law. An advocate for the “innovation commons,” a free space where culture, ideas and expression can flourish, Lessig is the founder of Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching.

About RDR Books

For fifteen years, the Michigan-based RDR Books has been publishing travel literature, Judaica, guidebooks, history, biography, education, sports, guidebooks and children's literature. Named as one of the nation's top 100 independent book publishers by Book Marketing Update, RDR's list includes the I Should Have Stayed Home trouble travel series, Carbon-Free and Nuclear-Free by Arjun Makhijani, Taking Risks by Joseph Pell and Fred Rosenbaum, What's Whole in Whole Language by Ken Goodman, Waterwalk by Steven Faulkner, and The Best of Michael Rosen by the bestselling children's author himself.

About Participating Attorneys

David S. Hammer is a New York-based trial lawyer with extensive experience in all aspects of criminal and civil litigation. He was a federal prosecutor in the Southern Districts of Florida and New York and has served as an advisor to the Office of Policy Planning in the Justice Department’s Antitrust Division. Hammer is a graduate of the University of Chicago Law School, where he was on the law review, and the Columbia University Graduate School of Journalism.

Anthony T. Falzone is Executive Director of Stanford Law School’s Fair Use Project. He is an experienced intellectual property litigator who has represented writers, publishers, filmmakers, musicians and video game makers in a wide array of intellectual property matters, including copyright, trademark, rights of publicity, and patent matters. He is also a lecturer in law at Stanford Law School. Prior to joining Stanford Law School, he was a litigation partner in the San Francisco office of Bingham McCutchen LLP.

Julie A. Ahrens is associate director of Stanford Law School’s Fair Use Project, where she represents writers, filmmakers, musicians, and others who rely on fair use in creating their art, documentaries, scholarship, critiques, or comments. Before joining Stanford, Ahrens was a litigation attorney in the San Francisco office of Kirkland & Ellis LLP.

Lizbeth Hasse is founding partner of the San Francisco-based Creative Industry Law Group. Her practice encompasses advising and negotiation in intellectual property, media, and entertainment matters. Hasse is a graduate of the University of California, Berkeley Law School and the Graduate School of Jurisprudence and Social Policy.

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EDITORIAL CONTACTS

Amy Poftak
Assistant Director of Communications
Stanford Law School
650.725.7516
poftak@law.stanford.edu
(Anthony Falzone, Julie Ahrens)




Rich Chernela
Chernela Communications
201.679.0109
rchernela@chernela.com
(David Hammer, Lizbeth Hasse)