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The appropriate inquiry under the substantial similarity test is whether the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The quantitative component addresses the amount of the copyrighted work that is copied, while the qualitative component addresses the copying of protected expression, as opposed to unprotected ideas or facts.
The evaluation of the fair use factors set forth in 17 U.S.C.S. § 107 is an open-ended and context-sensitive inquiry, and the examples listed in §107 (i.e., criticism, comment, news reporting, and teaching) are illustrative rather than limiting. The four statutory factors may not be treated in isolation, one from another; instead they all must be explored, and the results weighed together, in light of the purposes of copyright. The ultimate test of fair use, therefore, is whether the copyright law's goal of promoting the progress of science and useful arts, U.S. Const., art. I, § 8, cl. 8, would be better served by allowing the use than by preventing it.
J.K. Rowling announced that she planned to publish a “Harry Potter encyclopedia,” which would contain alphabetical entries for various people, places, and things from the Harry Potter novels. Rowling has already begun preparations for the encyclopedia by assembling her materials and requesting from her publisher a catalogue of the people, places, and things from Harry Potter.
Steven Vander Ark owned “The Harry Potter Lexicon” website, which featured descriptive lists of spells, characters, creatures, and magical items from Harry Potter organized in an A-to-Z index. The website’s contents are heavily based on Rowling’s books with additional outside sources to enrich the readers’ experience. Rowling even made positive reviews regarding the site stating that she often refers to it for facts while writing.
RDR Books contacted Vander Ark for the possibility of publishing the Lexicon website as a book. Initially, Vander Ark had hesitations about the publication as he thought that it would violate Rowling’s copyright; however, RDR Books assured him that such publication was legal. RDR’s advertisement regarding the publication caught the eye of Rowling’s literary agent. Rowling and Warner Brothers’ counsel informed Vander Ark and RDR Books that the project appeared to infringe Rowling’s copyrights and requested ceasing the publication.
Were there substantial similarities between the Harry Potter books and the Lexicon such that there is a prima facie finding of infringement?
The Court ruled that Warner Brothers and Rowling were able to establish a prima facie case of infringement because of the substantial similarity between Rowling’s books and Vander Ark’s “The Lexicon.” Under the quantitative analysis, the Court found that most of Lexicon’s 2,437 entries contain direct quotations or paraphrases, plot details, or summaries of scenes from one or more of the Harry Potter novels. As to the qualitative component, the Lexicon draws its content from creative, original expression of the Harry Potter books.
As to whether the Lexicon is a derivative work, the Court ruled in the negative. First, the Lexicon’s use of plot elements is not a mere unauthorized abridgement as they do not follow the same plot structure as the Harry Potter Books. Second, the use of substantial amount of copyrighted material is not mere transformation of one medium to another; rather, it gives the copyrighted material another purpose.
Finally, the Court ruled that the use of the copyrighted work was not fair use. First, as to the purpose and character of the use, the Court found that the Lexicon’s use of Harry Potter is transformative for its demonstrated value as a reference source. Its transformative character, however, is diminished because some entries are copied verbatim or lack citations from the original work. As to the commercial exploitation, the Court said that it only weighs slightly against fair use. Second, as to the amount and substantiality of use, the Court ruled that the Lexicon’s heavy verbatim copying of the Harry Potter books, particularly the companion books, weigh against fair use. Third, as to the nature of the copyrighted work, since Rowling’s books are highly imaginative and creative fictional works, this factor favors Rowling. Lastly, as to the market harm, the publication of the Lexicon could harm the sales of Rowling’s companion books. Additionally, the fourth factor favors Plaintiffs if publication of the Lexicon would impair the market for derivative works that Rowling is entitled or likely to license.
The Court enjoined the publication of the Lexicon.