The publishing phenomenon known as the Harry Potter series of books has found its way into the courtroom. In January 2008, J.K. Rowling (the author of the Harry Potter series) and Warner Bros. Entertainment, Inc. (the owner of the trademark for the Harry Potter films) filed an action in the United States District Court for the Southern District of New York against RDR Books and author Steven Vander Ark for copyright infringement (among other claims) in order to prevent the publication of Vander Ark’s book, the “Harry Potter Lexicon,” (the “Lexicon”) an encyclopedia-like reference book of all things Potter (spells, potions, characters, places, creatures, etc.). The Lexicon is the book version of Mr. Vander Ark’s already well-established Web site of the same name.

In response to the copyright infringement claim, the defendants claim that their use of Ms. Rowling’s work for both the Web site and proposed book constitute “fair use” under United States copyright laws. One interesting aspect of this case is that, although it is difficult to determine whether RDR Books and Mr. Vander Ark will succeed in their “fair use” claim under United States copyright law, the defense would most likely fail under the Belgian legal system (or many other legal systems in the European Union).

US Copyright Law – Success Unclear

The “fair use doctrine” under United States copyright law is a balancing test (originally judicially created) that is codified in Section 107 of the United States Copyright Act. It allows for the use of another’s copyrighted work in limited, fact-specific circumstances for certain purposes including criticism, comment, news reporting and scholarship. When determining whether a particular use of a copyrighted work is “fair,” courts look to several factors, including the following:

  •  the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  •  the nature of the copyrighted work;
  •  the amount and substantiality of the portion used in relation to the copyrighted works as a whole; and
  • the effects of the use upon the potential market for or value of the copyrighted work.

Under the first factor, courts often focus on whether or not the new user’s use of the original work is “transformative.” In other words, has the new user done enough with the original work to change or “transform” that original into a new expressive work?

Applying this first factor to the Harry Potter case, it is unclear whether the court would find Mr. Vander Ark’s Lexicon is transformative. The encyclopedia-like Lexicon does “transform” all seven of the Harry Potter books, by deconstructing them into short summaries of terms, characters and scenes, with direct references back to where the characters or terminology appear in the books. On the other hand, by Mr. Vander Ark’s own admission, the Lexicon entries take as much of Ms. Rowling’s original words as possible in order to make for an accurate description.

In addition to the importance of the first factor, if the court renders a decision it will undoubtedly also focus a great deal of its analysis on the fourth fair-use factor—whether or not the Lexicon creates a market harm to the plaintiffs. Ms. Rowling has stated that one of the reasons the plaintiffs object to the Lexicon is that she is currently working on a similar type of project herself, with proceeds benefiting charity. Clearly there is some market harm to Ms. Rowling if there is a competing book that is identical to something she creates. How much of a harm, however, is debatable because it is not clear whether fans would buy Ms. Rowling’s version over others, or if a free Web version of the Lexicon will cause the same amount of market harm to any book penned by Ms. Rowling.

Traditionally, second and third factors of the fair use doctrine are given less emphasis by courts. Here, there is no question that, under the second factor, Ms. Rowling’s novels carry copyrights that are afforded strong protection and, therefore, a court would most likely find this factor favors the plaintiffs. Under the third factor, however, it is again a bit difficult to say whether Mr. Vander Ark’s Lexicon takes too much of the entire series of books for his entries, but a court would probably find that this factor also favors Ms. Rowling and Warner Bros.

Belgian Copyright Law – Success Unlikely

The Belgian copyright system—similar to many legal systems in the Member States of the European Union—does not recognize the “fair use” doctrine in the same way as it is recognized in the United States. This does not mean, however, that the Belgian system ignores the inherent tension between the interest of the public in using copyrighted materials for a limited and “transformative” purpose and the interest of authors to protect their works.

Unlike “fair use” under United States copyright laws, the Belgian Author’s Rights Act does not provide for a fact-specific balancing test that is open to interpretation. Instead, the Act tries to achieve the delicate balance between the public interest and the author’s need for protection by providing for a limited, well-defined set of exceptions to the exclusive economic rights of authors. Under Belgian law, once a work has been published with the consent of the author, the author may no longer prohibit short quotations taken from the work for criticism, polemics or teaching, free and private communication within the family circle (for example, the use of replaying for current events, and music at a family gathering), for caricature, parody and pastiche, or replaying for current events.

Although it is clear that the “fair use” concept under United States copyright law covers these limited and well-defined exceptions under the Belgian Author’s Rights Act, the reverse is not necessarily true. Certain uses of another’s copyrighted work that may constitute “fair use” under United States copyright law may not fall under one of the exceptions provided by Belgian copyright law and therefore would not be a protected use in Belgium.

From a Belgian perspective, Mr. Vander Ark’s Lexicon merely compiles and repackages Ms. Rowling’s fictional facts regarding the world of Harry Potter and, therefore, clearly falls outside the scope and reach of the exceptions provided for by the Belgian Author’s Rights Act. Publication of the Lexicon, as either a Web site or printed book, would therefore constitute a violation of Ms. Rowling’s and Warner Bros.’s author’s rights under Belgian law.

In addition, the Lexicon may violate Ms. Rowling’s moral rights under Belgian law. Belgian law not only grants to authors the exclusive economic rights of controlling the reproduction and communication to the public. It also grants authors so-called “moral rights” to their works (i.e., the right to decide when and under what form(s) their works will be disclosed, the right to claim authorship of their works and the right to maintain integrity of their works) and enables authors to object to any modifications made to their works without their consent. Under Belgian law, the Lexicon constitutes — unquestionably — an unauthorized alteration and distortion of Ms. Rowling’s work, entitling her to obtain a cease-and-desist order to prevent its pending publication in that country.

After testimony from both Mr. Vander Ark and Ms. Rowling in April 2008, the court urged the parties to try to settle the case stating, “Litigation isn’t always the best way to solve things.” If this request is not met by the parties, however, the court will have a difficult case to consider, because both sides have favorable facts to consider in the fair use analysis under United States copyright law. Ultimately, the court may rely on factors outside the four factors enunciated in the U.S. Copyright Act to decide the dispute, and by doing so may allow some sort of moral rights to sneak into its decision.

This article was completed and submitted to production prior to Judge Patterson’s decision on September 8, 2008. As is evident from the decision, the Court struggled with the same fair use issues that are discussed in this article. Even though the Court ultimately held that the Defendants’ use was not a fair use under US copyright law, the overall conclusion of our article remains the same: The defense of fair use under US copyright law made this case a difficult one to predict, while under Belgian law the outcome was never a question.