JK Rowling and Harry Potter Lexicon

When 91% of a website contains direct quotes, and it has been plastered with adsense links--it has well exceeded the bounds of Fair Use.

Rock on, Rowling.

B, who thinks the last three books could have been way, way better.

Edmontonian:
... to the supporters of the author and the judge's decision, we are talking about the same person who sued a religious festival authorities in a 394 page lawsuit because they made a replica of her imaginary castle. If this does not scream - you can't touch me, otherwise my legal Pitbulls will bite your but, then I don't know what does.

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Erm ... no. That case was led by Warner Bros, who own the intellectual property in the design of Hogwarts as used in the Potter films. Rowling was joined as a plaintiff because (as is usually the case in law suits), the author of the underlying work will have an interest in the case given that she granted certain licences to Warner Bros. Given that the community group in question were allegedly intentionally using the image rights of both Hogwarts and some of the Potter characters, Warner Bros were well within their rights to bring the case. You might not like that, but that's the nature of intellectual property.

Edmontonian:
if you are so famous almost everyone in the kids world knows you, it is unnecessary to worry about negative effect of someone's attempts at copying your work.

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No. Regardless of how famous or sucessful a writer you are, it is very important to ensure that you protect your intellectual property rights because in some jurisdictions (and this is certainly true in England), if a potential infringement is brought to your attention and you choose not to take any action about it, then you can be deemed to be authorising that infringing work and lose any right to stop the infringement later on.

Now that might not sound as though it's particularly significant, but imagine if someone starts publishing versions of your book for money and buried in the middle are pornographic images or the unauthorised publishers start changing parts of your story. If you don't protect your rights, then you can lose the ability to stop that from happening.

It's a particular problem where you've granted publishing rights in a particular territory (e.g. China) where a publisher may have paid a considerable amount for the exclusive right to publish (which will affect their pricing strategy), only to find out that a competitor is producing the same book and undercutting them. That may be unpalatable to you, but publishers are businesses, and they need to ensure that their business is going to stay in the black and keep on going.

Edmontonian:
I was just expressing my opinion, like other people and did not call anyone jelous or uninformed or other names.

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I'm sorry if you think that people are ganging up on you, but when your opinion is based on incorrect facts or assumptions or on a lack of knowledge as to how intellectual property or the publishing industry works, then people are going to be vocal in their disagreement.

Edmontonian:
In terms of copyright law, this is not the place for a lecture on this topic, but allow me to quote from our Canadian law, that allows a great freedom related to copyright issues, when it comes to "research or private study." Therefore, in order for someone to be guilty of copyright infringement in Canada, the profit motive should be established. Therefore, at least in Canada, it always boils down to money, if you are violating someone else's copyright to make money, you are violating their copyright. If it is for "research of private study," you're fine. The case in question, of course, had to do with money.

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In this respect, Canadian law is no different to English law. Copyright (and I'm talking from an English law perspective here) exists to protect your expression and your right to profit from that expression. Ergo, if someone is quoting from your work without the intention of making money from it (known sometimes as an academic or study exemption), then there's no infringement because they're not causing you any economic harm. However, there are limits to this principle and if you do further research, I'd be willing to bet that there's a tonne of Canadian case law that sets out the parameters of this exemption and when it can be claimed.

In the RDR case however, because the judge found that there was substantial copying of the underlying work without any attempt to transform (or in other words, add to or analyse the text), it was therefore infringement because it was essentially copying the underlying work for profit. Arguably, that would not however have been a problem had the Lexicon remained an on-line for free publication (and indeed, Rowling had no issue with it in that form).

MM

Here's the court opinion on the case:
http://cyberlaw.stanford.edu/system/files/Lexicon+Order.pdf

ETA: I skimmed the opinion (it's 68 pages). I wouldn't be surprised if Vander Ark appealed because some of the fair use factors did tilt in his favor. This wasn't a slam dunk case for Rowling, but I think the judge made the right call here. I look forward to reading this more closely.

As the article said, it isn't a matter of money. It's protecting the rights of authors. I think it was a good decision by the court.

Momento Mori said:

Erm ... no. That case was led by Warner Bros, who own the intellectual property in the design of Hogwarts as used in the Potter films. Rowling was joined as a plaintiff because (as is usually the case in law suits), the author of the underlying work will have an interest in the case given that she granted certain licences to Warner Bros. Given that the community group in question were allegedly intentionally using the image rights of both Hogwarts and some of the Potter characters, Warner Bros were well within their rights to bring the case. You might not like that, but that's the nature of intellectual property.


No. Regardless of how famous or sucessful a writer you are, it is very important to ensure that you protect your intellectual property rights because in some jurisdictions (and this is certainly true in England), if a potential infringement is brought to your attention and you choose not to take any action about it, then you can be deemed to be authorising that infringing work and lose any right to stop the infringement later on.

Now that might not sound as though it's particularly significant, but imagine if someone starts publishing versions of your book for money and buried in the middle are pornographic images or the unauthorised publishers start changing parts of your story. If you don't protect your rights, then you can lose the ability to stop that from happening.

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Going on that, you also have to consider this: Warner Bros. owns the trademark on Harry Potter so it's in their best interests to protect it. Since they own the brand, they'll need to protect it in any way they can else, like you describe, MM, it'll become...generic, for lack of a better term. Aspirin and cellophane, two common household objects, were once trademarked names but because the original owners did not vigorously defend their marks, the words fell into public domain. Anybody can call their particular pain reliever "aspirin" or their plastic sheet wrap "cellophane". However, somebody can't call their aspirin Bayer or manufacture a cellophane as GAF; two companies already do that.

J. K. Rowling owns the copyright of the books. Since the online lexicon used so much material from them, it was in her best interest to pursue legal action when the physical book was going to be published because she owns the text. If she hadn't, everybody and their Uncle Judy and Aunt Lars could write Harry Potter books without fear of reprisal. (This is why many authors come down on fanfic. It's not to bear down on the fans and be a big ol' meany; many do it to protect their property.)

In the end, it all comes down to one word: property. It's the same reason why you lock the front door of your house or keep your car in the garage or put stocks and bonds in a safe deposit box in a bank. Intellectual property is extremely valuable to those who create it. Yeah, the concept "intellectual property" might be an intangible but the books, movies, CDs, etc. produced under the banner are physical manifestations of somebody's creativity and like any other theft, the people who create books, movies, CDs, etc. should be entitled to just compensation under the law.

AZ_Dawn here, taking a break from nursing her foot to do the happy dance! Thanks to the ruling, when/if I have my stories finally written and published I don't have to hunt down every two-bit fan-ficcer/fan artist and slap 'em with C & D notices; I can go to badfic sporking sites and laugh at the stupid shipping.

Christine N. said:

I HATE the 'she's so rich, who cares' line. I care. I care because it's still HER work. I've got a friend who's written HP trivia books for a small publisher. They are fine, because she came up with the questions, found all the answers, and referenced each and every one. It's fair use, and not plagarism.

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Plus, if someone can @%#& over the big guys, the little guys are next.

The Law

Hi Sheryl,

Here's what the law says http://laws.justice.gc.ca/en/ShowFullDoc/cs/C-42///en. I have included below just the relevant provisions.

So, if someone were to copy your entire work and produce a criticism of it, you are not entitled to any money, even if they sell their work. The same is true for private study.

Thanks,

ED



Copyright Act
C-42


Fair Dealing Research or private study

29. Fair dealing for the purpose of research or private study does not infringe copyright.
R.S., 1985, c. C-42, s. 29; R.S., 1985, c. 10 (4th Supp.), s. 7; 1994, c. 47, s. 61; 1997, c. 24, s. 18.


Criticism or review

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
1997, c. 24, s. 18.


News reporting

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.

I don't see where you get this:

Edmontonian said:

Hi Sheryl,

So, if someone were to copy your entire work and produce a criticism of it, you are not entitled to any money, even if they sell their work.

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from the statute. This language is much like the "fair use" provision in U.S. copyright law, and I suspect the analysis is similar. If so, then it's extremely fact-dependent (as can be seen from the court opinion I posted earlier) and requires detailed analysis specific to that particular case. For the Rowling case, even Canada's law probably wouldn't help because the use didn't fall under any of the exceptions you listed.

I would highly recommend reading the court opinion. It's quite educational.

Typical disclaimer: I'm an IP lawyer, but this doesn't constitute legal advice or create an attorney/client relationship, blah blah blah.

But the work in question was not intended as a scholarly study or critical work. It was an A to Z dictionary of people, places, things, and events from the series, using descriptions pulled directly from the books.

MeowGirl said:

If so, then it's extremely fact-dependent (as can be seen from the court opinion I posted earlier) and requires detailed analysis specific to that particular case. For the Rowling case, even Canada's law probably wouldn't help because the use didn't fall under any of the exceptions you listed.

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Yup. There's a 2004 case cited on Wikipedia that gives more details.

BenPanced:
Going on that, you also have to consider this: Warner Bros. owns the trademark on Harry Potter so it's in their best interests to protect it. Since they own the brand, they'll need to protect it in any way they can else, like you describe, MM, it'll become...generic, for lack of a better term. Aspirin and cellophane, two common household objects, were once trademarked names but because the original owners did not vigorously defend their marks, the words fell into public domain.

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*nods*

Absolutely. Another example of this is Hoover, which is now used as a generic term for any kind of vacuum cleaner in the UK. I was told recently by a TM lawyer over here that because Google has become so commonly used as a verb, the company is only taking action in very particular circumstances, mainly because from where they're concerned, it's a good thing for their brand name to become the by-word for internet search engines.

BenPanced:
(This is why many authors come down on fanfic. It's not to bear down on the fans and be a big ol' meany; many do it to protect their property.)

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The issue with fanfic is slightly different to the situation on the Lexicon case though because with fanfic, only some elements of the underlying work will be used (plot points, character names etc). In 99% of fanfic, no reference will be made to the underlying text (which is what copyright protects) and it's not being done for profit. I understand why some authors take a blanket C&D approach to fanfic on a precautionary basis because it is such a grey area legally, but I personally think that authors can benefit from encouraging active fandoms by endorsing fanfic of their work (without obviously being able to read it themselves). But that's a whole other can of worms ...

Edmontonian, with a disclaimer that I'm not a Canadian lawyer, the key provisions from what you cite are 29 and 29.1 (news reporting is not really appropriate in the circumstances discussed here) and the main points you need to note is that it's only permissible for the purpose of research or private study or for the purpose of criticism or review. Like I said in my earlier post, you really need to read the case law that's considered those provisions, because I would be very surprised if a court had indeed found that:

Edmontonian: (Bolding mine)
if someone were to copy your entire work and produce a criticism of it, you are not entitled to any money, even if they sell their work. The same is true for private study.

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This is on the basis that anyone producing such a work for sale, would most likely have to justify why such a line-by-line reproduction of an entire novel was justified for the purposes of their criticism. Most of the books I've read on literary criticism that relate to novels, will certainly take chunks of text from the original source (and cite the same), but they won't take all of it because the author won't need all of it to make their argument. The only situation I can think of where you perhaps would take all of an author's underlying work for the purposes of criticism is if you're producing a book analysis poetry of a particular author and even then, your comments would have to add something to it.

In addition, you'd need to see what the courts have decided constitutes a work of "criticism". Speaking very generally and in relation to English law, my understanding is that there has to be a degree of scholarly research or consideration demonstrated in the critic's own work (i.e. it's not enough to reproduce a chunk of text and only add "Ta Da!" to the end of it). This usually involves making some kind of comment or observation on the underlying work and tying it in to the passage quoted.

MM