Final (For Now!) Reflections on the Harry Potter Trial

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Yes, as some readers have pointed out, the Law Blog temporarily went a bit native on the Potter trial. (Though other readers, however, probably would have been fine with all-Harry-all-the-time.) But it’s an interesting — not to mention close — case, with an important, unsettled area of copyright law at stake. Even Judge Robert Patterson, who presided over the trial, suggested repeatedly that there were strong arguments on both sides and that his verdict could go either way.

As it turns out, Loyal Law Blog readers are torn, too. As of 9:00 am today, the LB poll shows that 301 readers believe J.K. Rowling’s camp will prevail, while 246 think the ruling will go in favor of defendant RDR Books.

So just what will Judge Patterson weigh when he sits down to write his opinion? In today’s WSJ, the Law Blog offers our own thoughts. Not only does the case appear to be a close call on the law and facts, we report, but an element of historic moment also hovers over this verdict. After all, on the first day of trial, Rowling said that if her fans are flooded “with a surfeit of substandard books,” she’s “not sure” she’d have “the will or heart to continue.”

To this, Tim Wu, the Columbia copyright prof, remarked that while her comments have nothing to do with the law, “you can imagine the pressure of being the person who’s rung the death knell of Rowling writing about Potter.”

But, ultimately, the judge has to wrestle with the law, specifically the copyright doctrine of fair use, which entails a four-factor balancing test that takes into account the purpose and character of the use, the nature of the copyrighted work, the amount of the work copied, and whether there’s a proposed commercial use.

In our mind, the issue could turn on whether Judge Patterson views the new work as “transformative” — whether it merely contains verbatim copying or whether it alters the original work with new expression or meaning. At trial, both sides appeared to agree that the lexicon compiles, organizes, and synthesizes information from the Potter series. But the parties diverge on the factual issue of how much interpretation and analysis the lexicon contains, and on the legal issue of how much it must contain to qualify for fair-use protection. They also disputed whether it is permissible for a reference guide to take a significant amount of material from the original work.

Rowling’s lawyers say that, for fair-use purposes, the lexicon takes too much, and does too little. But if Judge Patterson rules for Rowling, it may not be because the lexicon does too little — its organization of the Potter universe may be enough to make it transformative. Rather, it could be that the judge concludes that the lexicon’s author, in pulling passages and plot summaries from Rowling’s novels, took too much.