Rowling Sues HP Lexicon; Copyright Infringement Case

Personally, I'm not sure how it's all going to fall out. The only thing I'm expecting is that the case will make it all the way to the US Supreme Court because it deals in the finer points of defining copyright laws.

But it sure will be an interesting journey to follow.

What is also an interesting question - would Rowling be so eager to sue if she didn't have plans (supposedly) for her own Harry Potter encyclopaedia? If that's the case then it would seem to be more an issue of protecting future revenue (by removing a competing publication) than protecting IP rights.

mscelina said:

She has plans to write such an encyclopedia and donate the proceeds to charity according to court testimony.

Click to expand...

That was what I'd heard, yes, but couldn't remember exactly. Thing is, all the Harry Potter characters, names etc are trademarked, so any other publication using those names and characters could be liable for a case of passing off, certainly under UK law (no idea about US laws on the same area), as it'd be making money on the reputation built up by Rowling and Warner Bros, and there's a risk that the public could think it was an official publication.

I'm assuming the encyclopaedia uses a substantial amount of text from the books, and this is what Rowling's objecting to under the fair usage issue? In which case it is interesting - if it does prove to be copyright infringement, would the case be the same for a lexicon that didn't use quotes? (Still would be passing off though, because of the trademark issue. Hmn).

This is great though as my second choice for my fourth year dissertation is on exactly this issue. If that's the topic I'm given, I'm on a winner!

mscelina said:

I will be interested to see how the court defines 'public domain' in view of Potter's overwhelming media presence. Given all the websites devoted to the series, how much of her IP can specifically be construed as being OUT of the public domain at this point?...(snipped)

Click to expand...

Just to be really clear about context, this isn't about public domain - the works are all still covered by copyright, see def #2

public domain
n.

1. Land owned and controlled by the state or federal government.
2. The status of publications, products, and processes that are not protected under patent or copyright.

Click to expand...

I am not expert enough to know the legalities of the situation to a sufficient extent, but something smacks me as being wrong for someone else to be able to make money by using someone else's characters without their consent.

The other interesting thing about this case is, in the past, Rowlings praised the online Lexicon that Ark created and admitted to using it. Her actions and past comments could be construed as tacit approval for Ark's work. She only showed disapproval when he moved from electronic media to print.

Question: Does anyone know if Ark generated any revenue from the Lexicon website? Did he have ads displayed or a donation button or sell any merchandise connected with the Lexicon?

Birol said:

The other interesting thing about this case is, in the past, Rowlings praised the online Lexicon that Ark created and admitted to using it. Her actions and past comments could be construed as tacit approval for Ark's work. She only showed disapproval when he moved from electronic media to print.

Question: Does anyone know if Ark generated any revenue from the Lexicon website? Did he have ads displayed or a donation button or sell any merchandise connected with the Lexicon?

Click to expand...

Edited as I just checked - yes they do have a Paypal donation button, Amazon affiliation and some other ads on the site. I still had the URL saved to my favourites.

In which case, could that be construed as only allaying the cost of maintaining the site or was he already, with Rowlings' knowledge, attempting to make a profit from the information?

mscelina said:

I was speaking of public domain in the general sense, as opposed to the legal sense. I'm not familiar enough with the terminology of IP law to use them adequately, so just have to pretend with what few pieces of wordage come to mind.



The website appears to be free. As best I can tell, donations are accepted for operating costs, etc.

Click to expand...

I hear what you're saying, but I believe some terms/concepts about writing and publishing we should always use carefully and not perpetuate (especially here on AW) an erroneous definition.

It's like 'the poor man's copyright' - people keep coming here and answering a new writer's copyright question with that answer and we need to keep making sure that we debunk it. I'm sure there's a list of others.

mscelina said:

Would a salary as owner/operator of the site count as profit necessarily?

Click to expand...

Good question. I don't know the answer to it. On one hand, individual employees of non-profit entities do earn a salary. On the other hand, the income we writers earn makes us self-employed. We're seeking to profit from our work. I suspect that if Ark drew a salary from his efforts he did not qualify as a non-profit entity but was more of a self-employed individual. However, it's equally possible the Lexicon qualified as a hobby.

Again, I don't know. I'm just throwing it out there for thought, because I think it will be very pertinent to this individual case whether or not he was earning monies from his efforts prior to attempting to publish the Lexicon in print format, especially since Rowling was already well aware of the site's existence.

Will pull up my chair and keep in tune with the news as it unfolds about this. Should make for some interesting reading and insight.

Until then...popcorn anyone?

Yes, I think this case could very well hinge on whether the owner/operator made a profit off the website and the exact nature of Rowling's approval. Did she give approval for usage electronically but not in print? This will be an interesting and important case.

I'm hoping Rowling wins this case. After all, if people can get away with #&=$ing over the big guys, the little guys don't stand a chance. Not that there's much of a chance of her losing: she's in the right and can afford the better lawyers to prove it.

This case will help determine what my policy on fanworks will be (when I get published, of course ). Because if she loses, I'll be tempted to forbid all fanworks instead of pointing and laughing at the inevitable stupid Mary-Sue works.

AZ_Dawn, as far as I know, it's standard practice for authors to categorically forbid fanfiction. This includes other professional writers who want to work within the same universe. Sometimes the original author will sell the right, but it can come at a high price.

However, there are exceptions. Fantasy and science fiction have many cases of "shared" universes, and I'm not even talking about Star Wars and Star Trek and D&D.

Also, I'm thinking of one instance where a certain Mr Zelazny asked no one to write in his Amber universe, but after he died, his family sold the rights to some guy to write more novels anyway. Big surprise. This is an entertainment industry and everyone wants money, right?

So you can do whatever you want, I guess, but as soon as you die, your family will piss on your grave. Because writing doesn't make you immortal. Maybe you can add a stipulation to your will to turn your works over to public domain after your death.

In this particular case, eh, I don't really care. Rowling can do whatever she wants with the law on her side, for as long as the law says so. Until or unless the law changes.

Authors and creators don't categorically forbid fanfiction. George Lucas allows fanfiction as long as the fans don't try to profit from it. He's even allowed fans to create movies, etc. It's only when they do something stupid, like publishing a book and listing it on Amazon, that he releases the lawyers.

I followed this case for a while when the suit was first filed. Many people pointed out that there were already a gazillion nonfiction books on the market discussing the Harry Potter series and universe. How was the proposed print Lexicon different?

As I remember, the other works included substantial original material, critical essays for the most part, whereas the claim was that the Lexicon did not.

Hmm, I thought. Substantial original material? Push that far enough, theoretically, and you open the door to fan fiction publication.

Birol said:

Authors and creators don't categorically forbid fanfiction. George Lucas allows fanfiction as long as the fans don't try to profit from it. He's even allowed fans to create movies, etc. It's only when they do something stupid, like publishing a book and listing it on Amazon, that he releases the lawyers.

Click to expand...

Uh huh. Pretty sure I mentioned that explicitly as an exception along with Star Trek, which from my understanding recently had an identical case (someone crossed the line and published a Trek novel on Lulu and the lawyers came crashing down).

I write things to be read. If they aren't read, it's hard for me to communicate.

Phaeal said:

I followed this case for a while when the suit was first filed. Many people pointed out that there were already a gazillion nonfiction books on the market discussing the Harry Potter series and universe. How was the proposed print Lexicon different?

As I remember, the other works included substantial original material, critical essays for the most part, whereas the claim was that the Lexicon did not.

Hmm, I thought. Substantial original material? Push that far enough, theoretically, and you open the door to fan fiction publication.

Click to expand...

For a case of copyright infringement to succeed there has to be a substantial amount of the original material copied - one of the main cases here in the UK involved Marks and Spencer copying newspaper articles to include in a circular for their staff, but it was held not to be a breach of copyright as one single article didn't constitute a 'substantial' enough part. That's why I thought the lexicon would have to have included a lot of the text of the books if that's the avenue Rowling's going with the case. Otherwise, as you say, it would be the same as the other books that discuss Harry Potter and that universe.

In terms of fanfiction (which is also in my second choice for dissertation topics) the issue generally isn't one of copyright, more of trademark infringement (certainly with Lord of the Rings or Harry Potter) and of 'passing off', which is using a recognisable mark, character name, symbol, word etc to pass off your work as someone else's and to filch the reputation the proper owner has built up. That's why a lot of fan fiction writers put 'disclaimers' on their work, in an attempt to make it clear that they're not saying they work for the Tolkien estate or what have you.

There was, however, a recent case in Germany where the makers of the Warhammer games successfully took out an interdict against some fans who wanted to make a movie based on the game characters. I don't know the particulars of that one, but it's pretty much a landmark and, if the international intellectual property lawyers follow it, it could be very damaging for fanfiction and fan art. I would say that one has more bearing than Rowling's case.

It's a really interesting area of law though.

Birol said:

Authors and creators don't categorically forbid fanfiction. George Lucas allows fanfiction as long as the fans don't try to profit from it. He's even allowed fans to create movies, etc. It's only when they do something stupid, like publishing a book and listing it on Amazon, that he releases the lawyers.

Click to expand...

That was what I'd thought - as far as I knew it, authors forbidding fanfiction were in the minority while most didn't say anything and so could be said to be tacitly approving of it. Rowling did take out an interdict on one site but as far as I understood it that was because of its adult content and the fact it came up on search engines that her younger readers could easily have access to. I know a lot of the authors who contributed to the BBC's 'Dr Who' series of tie-ins were fanfiction writers originally, and in fact the BBC encouraged fans to send in submissions.