For immediate release:
October 13, 2008

For more information, contact:
Prue Adler
Association of Research Libraries
202-296-2296
prue@arl.org

Corey Williams
American Library Association
202-628-8410
cwilliams@alawash.org

How Fair Use Prevailed in the Harry Potter Case

ARL & ALA Release Copyright Analysis

Washington DC—The Association of Research Libraries (ARL) and the American Library Association (ALA) have released “How Fair Use Prevailed in the Harry Potter Case,” by Jonathan Band, JD.

Band contends that, despite US District Court Judge Robert Patterson's September 8 ruling that the print version of Steven Vander Ark’s Harry Potter Lexicon infringed J. K. Rowling’s copyright, "the big winner actually was fair use." Judge Patterson held that "reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit [to] readers and students." He found that the Lexicon's purpose as a reference guide to the world of Harry Potter was transformative under the first fair-use factor--the purpose and character of the use--even though it did not contain significant commentary or analysis. Considering the fourth fair-use factor--the effect of the use on the potential market for the original work--he rejected J. K. Rowling's argument that the Lexicon would impair the market for an encyclopedia she planned to write, stating that “the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license."

Despite these pro–fair-use holdings, Judge Patterson ultimately ruled in favor of Rowling because many of the Lexicon entries contained lengthy verbatim copies or close paraphrases of descriptions in the Harry Potter novels and presented much of the information from two companion books written by Rowling. Judge Patterson found that the Lexicon reproduced more of the original works than "reasonably necessary for the purpose of creating a useful and complete reference guide." However, Band notes that the court assessed only the minimum amount of statutory damages--$750 per work infringed, for a total of $6,750, when the court had the discretion to assess damages as high as $1.35 million--"[p]resumably...in part because the defendant had 'the reasonable belief that [the Lexicon’s] use of the Harry Potter works constituted fair use.'"

Band draws three broad lessons from Judge Patterson's decision. First, fair use is alive and well--expression can be incorporated into transformative works, as long as the expression is reasonably necessary for achieving the transformative purpose. Second, the courts champion fair use, in contrast to historic and recent proposed legislation that continues to encroach on fair use and the public domain. Third, fair use is best defended when those being sued have the resources to take on plaintiffs with deep pockets backed by big industry. The Lexicon's publisher was fortunate to have support from the Fair Use Project of Stanford Law School's Center for Internet and Society. Band notes that such public interest "law firms" play a critical role in leveling the copyright-litigation playing field.

“How Fair Use Prevailed in the Harry Potter Case” is available for free download from the ARL Web site at http://www.arl.org/bm~doc/harrypotterrev2.pdf. It will also be included in a forthcoming issue of ARL: A Bimonthly Report.

The Association of Research Libraries (ARL) is a nonprofit organization of 123 research libraries in North America. Its mission is to influence the changing environment of scholarly communication and the public policies that affect research libraries and the diverse communities they serve. ARL pursues this mission by advancing the goals of its member research libraries, providing leadership in public and information policy to the scholarly and higher education communities, fostering the exchange of ideas and expertise, and shaping a future environment that leverages its interests with those of allied organizations. ARL is on the Web at http://www.arl.org/.

The American Library Association (ALA) is a nonprofit educational organization of more than 66,000 librarians, library trustees, and other friends of libraries dedicated to improving library services and promoting the public interest in a free and open information society. ALA is on the Web at http://www.ala.org/.

Jonathan Band helps shape the laws governing intellectual property and the Internet through a combination of legislative and appellate advocacy. He has represented clients with respect to the drafting of the Digital Millennium Copyright Act (DMCA); database protection legislation; the Uniform Computer Information Transactions Act; and other statutes relating to copyrights, privacy, spam, cybersecurity, and indecency. He complements this legislative advocacy by filing amicus briefs in significant cases related to these provisions. Jonathan Band is on the Web at http://www.policybandwidth.com/.