HARRY POTTER
Muggles, Dementors, and The Order of the Court

Harry Potter mania set records on almost every front.

Bleary-eyed children who had never before read a book on their own skipped meals and bedtimes to read straight through the 766 pages of The Order of the Phoenix. Kids in costume trooped through the dark of night to attend midnight bookstore parties where they drank brew from cauldrons and donned cheap round glasses through which they could not focus.

Each successive release of a new Harry Potter book shattered all prior records for presales, eventually selling over 400 million copies worldwide, and distinguishing author J.K. Rowling as the world's only billionaire author.

And recently, in an opinion issued by Judge Robert Patterson, Jr. of the Southern District of New York, a lawsuit brought by Ms. Rowling and Warner Brothers has made what is considered groundbreaking law in the muddy waters of fair use of copyrighted works.

The defendant in the case, Steven Vander Ark, formerly a librarian and middle school media specialist at Byron Center Christian School in Michigan, operated a popular Harry Potter fan site known as "The Harry Potter Lexicon." The online Lexicon incorporated Vander Ark's copious notes from the books, giving fans a descriptive list of spells, characters, creatures, and magical items from the Harry Potter books, along with an A-to-Z index to aid in searching. The Lexicon also included a number of instances of verbatim copying or close paraphrasing of language from the Harry Potter books.

Vander Ark, together with publisher and codefendant RDR Books, were preparing to publish a book form of the Lexicon when they were met with a series of cease-and-desist letters, and ultimately, a complaint and preliminary injunction motion from Rowling's and Warner Brothers' attorneys.

Vander Ark did not dispute that he actually copied portions of Harry Potter books. His defense, however, claimed that, as a reference guide, the Lexicon was protected from claims of copyright infringement on the grounds that it constituted "fair use" of Rowling's work. Many others who were well-schooled in issues of copyright fair use agreed.

The court, however, did not. In a 68-page, meticulously written opinion, the Court noted that the Lexicon went far beyond a mere reference guide, instead featuring a substantial entertainment quality, while containing little analysis or commentary, hallmarks of reference works. Other factors which weigh into the fair use analysis, such as market harm to the copyright owner, were found in Rowling's favor, given her well-documented intentions to introduce her own version of a Harry Potter encyclopedia.

Although the court's opinion has caused a chill among authors of reference works, the court took care to underscore the ongoing vitality of the fair use defense for such works:

"Notwithstanding Rowling’s public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works. The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one."

The parties have now settled their dispute, the appeal has been withdrawn, and The Lexicon, replete with newly added, substantial sections of commentary and analysis, will be on store shelves in January, 2009.