JK Rowling and Warner Brothers Entertainment brought an action against RDR Books to prevent the publication of The Harry Potter Lexicon by Steve Vander Ark, a companion book to the Harry Potter series. They have been granted both an injunction and damages on the basis that The Lexicon contained more extracts from the originals than could justify an affirmative defence of fair use under US copyright law.
Although the case is very definitely about books, and the Web site run by Vander Ark, from which the book arose, remains unaffected, the ruling is generally considered to be significant in determining fair use.
According to the judge, ‘Weighing most heavily against the Defendant … is the Lexicon’s verbatim copying and close paraphrasing of language from the Harry Potter works … there are a number of places where the Lexicon engages in the same sort of extensive borrowing that might be expected of a copyright owner, not a third party author.’
Digital rights expert, Laurence Kaye comments on his blog that ‘it seems fairly clear that the “fair use” doctrine has sufficient flexibility to allow creators of new works to use or “borrow” from existing works – “mix and mash” – as long as the borrowing is not so extensive as to cross as to cross the threshhold from fair use to infringement’.
The full judgment can be read here
