2nd Circuit Cases May Boost "Potter" Copyright Suit

Posted by Matthew Heller

Can "Harry Potter" author J.K. Rowling stop publication of an unofficial encyclopedia devoted to the world's most popular young wizard? Salon.com staffer Farhad Manjoo suggests Rowling could rely on two 2nd Circuit precedents involving the TV shows "Twin Peaks" and "Seinfeld" in her copyright battle against the RDR Books, which wants to publish "Harry Potter Lexicon," a treasure trove of all things Potter.

As we previously posted (here and here), Rowling and Warner Bros., which distributes the movie versions of the Potter books, are trying to block publication of the book. RDR has said in response to the suit that it will invoke the "well established doctrine of 'fair use'" in its defense.

According to Manjoo's blog post, the precedents of Twin Peaks Productions v. Publications International, 996 F.2d 1366 (1993), and Castle Rock Entertainment v. Carol Publishing Group, 150 F.3d 192 (1998), "argue in [Rowling's] favor." In those cases, the 2nd Circuit found the fair use defense did not apply to an unofficial "Twin Peaks" episode guide and a "Seinfeld" trivia book. But as Manjoo also notes, "Those precedents have been criticized by other judges, however, and experts have questioned whether they'll stand up to further review."

Indeed, no less an authority than 7th Circuit Judge Richard Posner took issue with Castle Rock in a copyright case brought by the manufacturer of Beanie Babies. The 2nd Circuit's holding, he said in Ty, Inc. v Publications International, 292 F.3d 512 (2002),

seems to rest in part, and very dubiously we must say, on the court's judgment that the book was frivolous ... [T]he fair-use doctrine is not intended to set up the courts as judges of the quality of expressive works. See Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 582-83. That would be an unreasonable burden to place on judges, as well as raising a First Amendment question.