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Judge Patterson of the Southern District of New York today issued this opinion in Warner Bros. Entertainment Inc. v. RDR Books, the “Harry Potter Lexicon” case. The court issued a permanent injunction against the publication of the Lexicon and awarded statutory damages in the amount of $6,750.

It appears to be pivotal, in the court’s view, that the author copied literary expression (in the form of particular phrases describing characters, events, and objects in the books), rather than paraphrasing those passages more generally to extract the ideas from Rowling’s expression.

The court sums up its fair use analysis this way:

The fair-use factors, weighed together in light of the purposes of copyright law, fail to support the defense of fair use in this case. The first factor does not completely weigh in favor of Defendant because although the Lexicon has a transformative purpose, its actual use of the copyrighted works is not consistently transformative. Without drawing a line at the amount of copyrighted material that is reasonably necessary to create an A-to-Z reference guide, many portions of the Lexicon take more of the copyrighted works than is reasonably necessary in relation to the Lexicon’s purpose. Thus, in balancing the first and third factors, the balance is tipped against a finding of fair use. The creative nature of the copyrighted works and the harm to the market for Rowling’s companion books weigh in favor of Plaintiffs. In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit readers and students; but to borrow from Rowling’s overstated views, they should not be permitted to “plunder” the works of original authors (Tr. (Rowling) at 62:25-63:3), “without paying the customary price” Harper & Row, 471 U.S. at 562, lest original authors lose incentive to create new works that will also benefit the public interest (see Tr. (Rowling) at 93:20-94:13).

Congratulations to Dale Cendali and her team at O’Melveny, and condolences to Tony Falzone, Julie Ahrens, and their team at the Stanford Fair Use Center. The representation on both sides was top-notch, as reflected in the court’s balanced analysis.