Judge to Potter Players: Let's Settle

The best way to reach a resolution in the case of the unauthorized Harry Potter guide? Make it disappear.

So says a Manhattan federal judge who is urging author J.K. Rowling and an American publisher to settle their copyright-infringement dispute over a book titled The Harry Potter Lexicon, whose publication Rowling is trying to block.

U.S. District Judge Robert Patterson Jr. cautioned that since the contentious case falls within a gray area of copyright law and fair-use allowances, it could spend years in litigation as it winds its way through appeals courts.

Rowling, 42, and coplaintiff Warner Bros. Entertainment filed suit in October against Steven Vander Ark, owner of the popular Harry Potter Lexicon fansite, and Michigan-based RDR Books, which intends on selling the book version for $24.95 a pop.

The famed author testified on Monday that the 400-page Lexicon, based on Vander Ark's site, not only amounted to "wholesale theft of 17 years of my hard work," but also "decimated" her creative work by forcing her to take a break from writing her latest novel so she can focus on the legal battle.

She also asserted that the suit wasn't about money but about protecting authors' rights by halting the release of "sloppy" companion guides.

To that end, her legal team enlisted Suzanne Murphy, a vice president at Scholastic, which publishes the Potter novels in the U.S. She testified that Lexicon could potentially attract many buyers despite what she called a "poor" compilation.

Lawyers for RDR pushed back by putting its own publishing expert, Bruce Harris, on the stand Wednesday. Harris argued the publication of Vander Ark's Lexicon would in no way weaken sales of Rowling's glossary should she end up writing one given her unique stature as a world-class author and the rabid demand for her work by fans.

Vander Ark, a 50-year-old former librarian, launched his site in 1999 to celebrate the Potter books and engage fellow fans. On Tuesday, he tearfully testified how his book was meant strictly to be a celebration of Rowling's "genius" and that he initially had his own doubts about whether such a compendium might violate copyright, until he was convinced otherwise by RDR.

The basis for the publisher's defense is the so-called fair-use doctrine, which defense attorney Anthony Falzone claimed gave Vander Ark and RDR the scholarly right to "organize and discuss the complicated and very elaborate world of Harry Potter."

Zeynel Karcioglu, a New York-based attorney specializing in trademark and copyright law who attended Wednesday's hearing, said he believed Patterson urged a settlement because the judge felt the case was being "lawyer driven." That is, one side, most notably the defense, was using it to set a precedent expanding the concept of fair use.

RDR's defense is partially being paid for by the Stanford Fair Use Project, a project of Stanford Law School whose mission is provide pro bono legal support to cases that test the boundaries of fair use for the purposes of enhancing creative freedom.

"While it's clear the Project's mission is a noble one, and one that I applaud, practitioners sometimes fear test cases that are not based on very strong facts," Karcioglu said. "This case may be an example of such a situation in that creating a lexicon might be fair use, but creating this particular lexicon is not."

Rowling and her attorneys claim that Vander Ark's site simply recycles her copyrighted material by listing characters, magical creatures, potions, spells and other Potter-related tidbits. At the same time, they argue, Lexicon failed to conjure up any original commentary or incorporate fan-based discussions that Rowling believed made Lexicon her favorite fansite on the Internet.

"A fan's affectionate enthusiasm should not obscure acts of plagiarism. The publishers knew what they were doing," Warner Bros. said in a statement Wednesday.

"The problem remains that Lexicon takes an enormous amount of Ms. Rowling's work and adds virtually no original commentary of its own. As we've said in court, it takes too much and adds too little. Authors have a duty to prevent the exploitation of their works by people who contribute nothing original, creative or interpretive."

The judge will likely base his decision on the amount and nature of the copying Vander Ark and RDR. That, adds Karcioglu, could lead him to issue a sweeping opinion that bars the fair use of a lexicon.

"The question is does J.K. Rowling have rights to any and all lexicons using and talking about Harry Potter?" said the legal eagle. "If this one is stopped, this could be used as a stick to stop other noninfringing works."

The defense is expected to rest its case by the end of the week. Rowling is expected to be called back to the stand by her lawyer to refute the testimony laid out by RDR and Vander Ark.