Can Rowling cast a spell over US court or does 'loser' join lexicon?

Magic of cyberspace and mystery of copyright becomes a new battleground for boy wizard's creator, writes STEPHEN McGINTY

THE granite steps and solid wooden doors would not look out of place at Hogwarts, while the imposing figure in black robes could have been a stern new master of magic. In reality, the venue was the towering courthouse at 500 Pearl Street in Manhattan and the man in black Judge Robert Patterson. The only thing magical was the appearance of JK Rowling, who yesterday tip-tapped up the courtroom steps in her designer shoes and elegant attire in preparation to defend her characters and the world she created.

In the pages of the Harry Potter novels battles are settled with spells or quidditch sticks; however, evidence and legal argument will be the weapons wielded over the next few days at the Daniel Patrick Moynihan Courthouse. On the one side of the court sit lawyers for RDR Books, a small Michigan-based publisher, which had hoped to release The Harry Potter Lexicon, an encyclopaedia dedicated to the world of the boy wizard. The company's largest print-run was 10,000 copies. On the opposing side is JK Rowling, whose books have been translated into 64 languages, sold more than 400 million copies and spawned a film franchise that has pulled in more than £2 billion at the worldwide box office. She, too, would like to write and publish a Harry Potter encyclopaedia, but in her own good time and with the profits going to charity, and she will not tolerate competition recycled from her own work.

The story began in 1999 when Steve Vander Ark, a teacher and school librarian from Michigan, decided to set up a reference website. As the years passed, the Harry Potter Lexicon proved immensely popular with fans and was so authoritative that it was regularly used by editors, film-makers and even JK Rowling herself.

In 2004 the author bestowed upon the Harry Potter Lexicon one of her "fan site awards", as she wrote: "This is such a great site that I have been known to sneak into an internet café while out writing and check a fact, rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing). A website for the dangerously obsessive; my natural home."

Warner Brothers, which made the Harry Potter films, arranged for Mr Vander Ark to be flown over to meet the cast and crew of Harry Potter and the Order of the Phoenix. David Heyman, the film's producer, said they used the site every day. At the offices of Electronic Arts, the company behind the computer game, he saw pages from the lexicon had been printed out and taped to the walls. The hard work involved in producing the website was appreciated by Ms Rowling, Warner Brothers and the publishers, as long as it remained unremunerated, or poorly paid, as advertisements on the site have brought in less than $1,000 per year.

The warm letters and invitations ceased when it was announced that a book based on the website was to be published.

Although Mr Vander Ark had contacted JK Rowling's agents with the suggestion that they collaborate on an encyclopaedia and was turned down, he was cautious enough about the potential breach of copyright that when he was approached by RDR Books he agreed to publication only if they indemnified him against any legal action. RDR Books insisted that the lexicon would not violate copyright law, but agreed to a clause in his contract which stated the publisher would defend and pay any damages that might result.

At Halloween last year, shortly after the announcement of the book, the publishers were hit with a lawsuit and a court injunction preventing publication prior to a court case. So why, if JK Rowling approved of the lexicon being available for free on the internet does she now disapprove of a truncated version being available for $24.95 (£12.60)? Not only does she disapprove, she said, in a declaration filed in the US district court, that she would feel "exploited" and that the work she previously praised was now "a Harry Potter 'rip-off' of the type I have spent years trying to prevent"?

The case will hinge on a number of points. One is whether there is a difference as far as copyright is concerned between something published on the web and in print? RDR Books will argue there is not, that if JK Rowling accepts and approves of a free website, she cannot then complain about a book available at a price. Dave Hammer, a lawyer for RDR, said: "If Rowling was happy with the content of the website, she cannot object to the publication of the book."

However, Neil Blair, a lawyer at the Christopher Little Literary Agency (CLLA) which represents Ms Rowling, believes this is nonsense. Although unavailable yesterday, he has said in a previous article: "There is a big difference between a free fan website and a for-profit book that attempts to make money out of Ms Rowling's original works".

On this point, the author has been quite clear that if RDR is successful it could have serious consequences for the relationship between authors and their devoted fans in what they can and cannot do on websites. Ms Rowling has said she will "find it devastating to contemplate the possibility of such a severe alteration of author-fan relations".

In documents filed in court, Ms Rowling said: "If RDR's position is accepted, it will undoubtedly have a significant, negative impact on the freedoms enjoyed by genuine fans on the internet. Authors everywhere will be forced to protect their creations much more rigorously."

The second point of contention is what merit the lexicon will have? While the book will not use JK Rowling's exact words to describe characters, spells, etc, it will take the basic information in her books and rearrange it into alphabetical order. Ms Rowling has criticised the book on the grounds that it fails to include any of the commentary and discussion that enriches the Lexicon website.

Others, such as Anthony Falzone, a law lecturer at Stanford University, disagrees. Mr Falzone will represent the publishers free on the grounds that it is "a hugely important case about a third party's right to create a new reference book that is designed to help others understand the original work."

If JK Rowling trots back down the steps as a loser, it can be guaranteed that she and Warner Brothers will appeal all the way to the Supreme Court. So her next work may be a courtroom thriller, Harry Potter and the Long-running Lawsuit.

BATTLE 'PUTS A CURSE ON CREATIVITY'

JK ROWLING said yesterday her efforts to halt a publisher's Harry Potter Lexicon had been crushing her creativity.

The author said she had stopped work on a new novel because the lawsuit in the federal court had "decimated my creative work over the past month".

Ms Rowling is suing RDR Books to stop publication of Steven Vander Ark's Harry Potter Lexicon. She said her copyrights were being violated.

Yesterday, she testified that "this book constitutes wholesale theft of 17 years of my hard work". However, Anthony Falzone, RDR's lawyer, defended the lexicon as a reference guide. Mr Falzone calls it a legal effort "to organise and discuss the complicated and very elaborate world of Harry Potter".

Ms Rowling brought the lawsuit against Mr Vander Ark's publisher last year. The case is expected to last most of the week, during which time the author will spend her breaks in a jury room – away from any die-hard Potter fans.

While Ms Rowling has said she is a fan of the Harry Potter Lexicon website Mr Vander Ark runs, she draws the line when it comes to publishing the book and charging $24.95 (£15.75).

She also says it fails to include any of the commentary and discussion that enrich the website, and calls it "a rearrangement" of her own material.

Earlier, Dale Cendali, Ms Rowling's lawyer, said the publisher wanted to scoop Ms Rowling's plans to publish her own Harry Potter encyclopedia. She has told a judge in New York that RDR Books copied "the life work of the history-making author". She said: "Words she slaved over… now appear in a book under the name of somebody else".