Copyrights may not mean many rights

On September 8, 2008, a New York federal court ruled that Steven Vander Ark is permanently enjoined from publishing his ‘Harry Potter Lexicon’. The Lexicon is an A to Z encyclopedia that consists of 2437 entries. The entries describe the creatures, characters, objects, events and places that exist in the world of Harry Potter. The encyclopedia was a paper reproduction of the ‘A to Z index’ that Mr. Ark has included on his website since 1999.

The case is significant for a number of reasons. First, it clearly demonstrates the dichotomy between ideas and their expression. Although Mr. Ark first came up with the idea that the Harry Potter series could be transformed into an encyclopedia, he could not claim copyright on this idea. This is because s. 102(b) of the US Copyright Law[USCL] clearly states that copyright will be granted only for the expression of ideas and not the ideas themselves. 

Secondly, even though Mr. Ark came up with the idea for the Lexicon, his encyclopedia infringed Ms. Rowling’s copyright on the Harry Potter series. In particular, the federal court ruled that although the Lexicon included a small percentage of the original work [the encyclopedia was only 400 pages while the Harry Potter series consist of thousands of pages], it substantially reproduced the main plot, characters and events of the series. The infringement could not have been justified under the ‘fair use’ provision because Mr. Ark did not add any substantial comments or criticisms of his own but rather paraphrased or verbatim copied the original work. 

Thirdly, two interesting issues were not addressed in the case: 1. does Mr. Ark own a copyright in the website of the Lexicon given he does not have a copyright to substantial parts of it; 2. if he has a copyright in the website then what can he do with it?

To address the first issue, I will shortly describe the website. Among other features it includes:  ‘what’s new’ where the users post any recent events regarding Rowling’s work or the site; ‘essays’ where users write commentaries on the Harry Potter series; ‘forum’ where users could chat with each other; and ‘A to Z index’, which is the basis for Mr. Ark’s hard copy encyclopedia. 

In my opinion, Mr Ark owns a copyright in his website because the following requirements are met: 1. The website is a ‘compilation’ or ‘collective work’[see definition in s.101 of USCL] and 2. The constituent materials of the compilation are lawfully obtained [see  S. 103 of the USCL]

To clarify this conclusion, I briefly outline the relevant facts. Firstly, the website is clearly a compilation or collective work because it consists of a large number of users’ essays and comments.  Secondly, Mr. Ark has lawfully obtained the constituent materials. The users, who included their essays in the ‘essay’ section and their comments in the ‘forum’, consented to the use of their material. Otherwise, they would not have posted them there. Ms. Rowling has also endorsed the idea that any material related to the Harry Potter series could be used on the website. She had explicitly stated: ‘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.’ 

Although Mr. Ark has copyright in his website, he is afforded very few rights. Generally, the owners of copyright in a single literary work have a wide range of rights. For example, they could reproduce, copy, distribute or dispose of their work in any manner they want. However, according to s. 201 c) of USCL, the owner of copyright in a collective work could only reproduce and distribute the single contributions of different creators as part of 1) that particular collective work, 2) any revision of that collective work, and 3) any later collective work in the same series. 

Case law has interpreted s.201 c) very narrowly. In New York Times Company, Inc. v. Jonathan Tasini [Tasini], six freelance authors wrote articles for different newspapers published by New York Times Company. Without the authors’ consent, the publisher decided to include the articles in an online database and on a CD ROM. The U.S. Supreme Court held that the publisher had copyright in each printed edition of the newspapers because it constituted a collective work under the USCL. However, the database and the CD ROM were not lawful reproductions of that particular collective work because they ‘decontextualized’ the articles. In particular, a user who searched the on-line database could retrieve each article individually and not as a part of the original newspaper edition. Furthermore, the database was not a ‘revision’ of a given newspaper or a ‘later collective work of the same series’ because the database was constantly expanding and contained thousands of other articles unrelated to a particular newspaper edition. 

Whether Mr. Ark could reproduce or distribute individual fragments of his website depends on whether in doing so he ‘decontextualizes’ the individual copyrighted materials that appear on his web. According to the analysis in Tasini, Mr. Ark will certainly be allowed to copy and distribute the entirety of his website on a CD ROM or paper. This is because the context of the fans’ comments and essays will remain intact. However, given the tendency of the U.S. Supreme Court to interpret s.201 c) narrowly, removing only few elements of the website, when reproduced on another medium, could easily constitute ‘decontextualization’ and thus an infringement of the website users’ copyrights.

There are two important conclusions from this discussion. Firstly, although Mr. Ark’s idea of creating a Harry Potter encyclopedia is brilliant and useful to consumers, it is rendered inoperable when its expression infringes on Ms. Rowling’s copyrights. Secondly, the fact that a person owns a copyright does not necessarily mean he or she has a wide range of rights. As US case law illustrates, the rights might be quite confined when they concern a compilation of other creators’ work.

2 Comments
  1. Ryan, thanks for the update – it will be interesting to see whether the court of appeal will uphold the lower court decision. I found the court’s decision fairly cogent but maybe Mr. Steven Vander Ark and his counsel have come up with novel arguments.

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