Under the Fair Use Doctrine, the factor for purpose and character identifies whether the latter work is
transformative. In
Campbell, when the defendant’s work is more
transformative, then lesser weight is given to the commercial nature of that work. The
transformative nature and public benefit are two crucial considerations for this factor. In this case the conclusion will find a balance between the referential value of the
Lexicon and the reasonableness of the amount taken from Ms. Rowling's work, to satisfy this purpose. Thus, does the taking add value to justify the proportion of the taking? Is it an excessive taking or the least restrictive form of taking?
In the present matter, the evidence and expert opinion for the plaintiffs alleged that the defendant’s “took more and did less”. Their expert's opinion indicated that the same “useful purpose” could have been satisfied with “brevity” in usage of copyrighted material. Examples were offered which compared the Ms. Rowling's original wordplay in her text and the extent of the same, used in the
Lexicon. For instance, out of 2437 words in the
Lexicon, 2034 words were “simply lifted” such that out of five words, three would be Ms. Rowling's. The argument made was that Ms. Rowling’s wordplay is distinctive and out of the entire content only 403 in the
Lexicon may be attributed to Mr.
Vander Ark.
The defendants argued that the “usefulness” of this ready reference guide outdid the monopolistic undertones of Ms. Rowling's enforcement
strategy. They claimed that the
Lexicon functioned as a reminder to one about details, which given the numerous characters and plots, and is all but time consuming.
Eg. who is the character under a particular name Lord
Voldemort. The
Lexicon, the expert
Professor Sorensen opined, is easily accessible, concise and pithy. Further, it was a 'cheap synthesis and distiller of information' by compiling into a single place, a ready referencer.
The plaintiff's counter argued with Dean Jerri Johnson's opinion, that there was 'infrequent' etymological contribution, the information was carelessly recorded, the pagination was not as per a standard usually followed or identifiable accurately (the current pagination scheme directed one to a chapter where a lengthy reading, for instance of 35 pages, was required before one discovered the root) and most significantly, information was non-paraphrased and non-quoted which logically concludes that he is the author of that material (which Mr.
Vander Ark
concededly is not). In essence, alleging "intellectual theft" the plaintiff's expert stated that the long entries were not helpful to her and it was difficult to distinguish between what was original to the
Lexicon vis-à-
vis Ms. Rowling's words.
Mr. Hammer defended the
Lexicon, by attempting to step outside of the box argued that there is no real category that the
Lexicon could fit into for a description. So how could she confidently say the
Lexicon was conclusively not a ready referencer? Could she deny as confidently that a different form of a referencer could exist? A tad philosophical, but a good
strategy nonetheless. Predictably, an argument on what standards apply for
determining a reference guide ensued. Dean Johnson alleged that the
Lexicon, being of 'dubious' quality with commentaries equal to 'tiny bursts that frizzle out' , did not meeting the quality standards required by the REA guidelines. Mr. Hammer argued that because the real audience were 9 year
olds, the
Lexicon is not meant as a scholarly reference guide or as a academic scholarship and thus the quality need not meet those guidelines.
It could have been argued that it might be prudent to first learn the basics before learning to distinguish it from the explorative conclusions. But that again is just my view and I don't intend to comment on the educational structure here or anywhere for that matter.
The defense rested with a closing which stressed on the usefulness of the
Lexicon and that it would not affect a market for Ms. Rowling. Their expert on publishing often stressed that Ms. Rowling's popularity alone is sufficient to predict, that the sale figures of the
Lexicon would be a mere drop in the ocean compared to the sale figures of her potential encyclopedia. The US Constitution guarantees copyright protection to ensure
incentivizing further creation. And an outcome in favor of the Ms. Rowling's 'draconian' protection
strategy would undermine that very aim, he argued.
Ms. Rowling, taking the stand a final time, analogized her work to a plum cake and Mr. Ark's work being a product of her stolen plums. The defense in its closing statement argued for fair use by claiming that Mr. Ark's work was merely his stab at an existent work. What is the extent to which an author can protect her work from being used? In what fashion may it be used? To what extent may it be used? To what extent does the 'incentivized' author go to tread carefully on this land mine of a subject? Judge Patterson referred to copyright infringement and fair use being a 'murky area of law.' Settlements are encouraged and often opted for in such matters and an appeal is also expected in this case. But as an author and as a lawyer, it is always the hope that soon this murky area will be remembered as nothing more that the early morning fog which took merely a ray of sunshine to dissipate.
Links:
LV sued City Chain for trademark infringement of its Flower Quatrefoil and Flower Quatrefoil Diamond. Quatrefoil means "a representation of a flower with four petals or a leaf with four leaflets, especially in heraldry." In other words, a representation that we distinctly recognize as being associated with LV. 
