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mscelina
04-14-2008, 08:45 PM
Okay, regarding our recent foray into the never-ending argument of IP theft here's a case to chew on:

J.K. Rowling is suing Steve Van Ark, owner of the Harry Potter Lexicon (http://www.hp-lexicon.org/)website, in an attempt to block publication of his HP encyclopedia "The Harry Potter Lexicon" in a copyright and trademark infringement case being heard in NYC today (http://news.aol.com/newsbloggers/2008/04/14/j-k-rowling-sues-fan/).

She accuses the defendent (http://www.news.com.au/story/0,23599,23437723-401,00.html)and his small press publishing company of taking 2034 of its 2437 entries directly from her work. The company, RDR Books, has this to say on its website (http://www.rdrbooks.com/):


"J.K. Rowling and Warner Bros. are asserting a startling claim," said Anthony Falzone, executive director of the Fair Use Project and counsel on the case. "The right to create literary reference guides like the Lexicon has remained nearly unquestioned for hundreds of years. The Lexicon is a valuable resource that helps people better understand and enjoy the Harry Potter books. It's exactly what copyright law should encourage, not suppress."


Okay, I've given you the starting points. Where does fandom end and copyright infringement begin? Is it right that van Ark can publish the Lexicon while its author is still alive? Or, conversely, is it right that Rowling can block the publication of work based upon her fiction because the intellectual property remains hers to control.

We have our opportunity. A real, honest-to-god chance to observe and comment while a real-life IP case with big names is ongoing. Time to weigh in--on the ISSUE if you please.

DeleyanLee
04-14-2008, 08:50 PM
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.

Zelenka
04-14-2008, 08:57 PM
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
04-14-2008, 08:59 PM
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?

And before anyone gets their panties into a knot, I am preparing to take both sides of this issue as the case unfolds. I want to understand both sides of the dispute so as to give myself a better grounding on how IP and copyright laws will affect me and other writers as well. Either way you look at it, it could be a landmark case for all of us.

mscelina
04-14-2008, 08:59 PM
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.

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

Zelenka
04-14-2008, 09:09 PM
She has plans to write such an encyclopedia and donate the proceeds to charity according to court testimony.

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
04-14-2008, 09:23 PM
If 2034 of the 24someodd entries are directly taken from Rowling's work, there's very little doubt that in some way trademark infringement is involved. However, if Rowling permitted van Ark to use the same material on his website and is now objecting to its use in his Lexicon, does that in any way change her infringement status?

Dawno
04-14-2008, 09:30 PM
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)

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

C.M.C.
04-14-2008, 09:58 PM
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.

Birol
04-14-2008, 10:12 PM
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?

Zelenka
04-14-2008, 10:30 PM
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?

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.

Birol
04-14-2008, 10:32 PM
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
04-14-2008, 10:33 PM
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.

:D

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

mscelina
04-14-2008, 10:34 PM
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?

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

Dawno
04-14-2008, 11:13 PM
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.

:D

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


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.

Birol
04-14-2008, 11:43 PM
Would a salary as owner/operator of the site count as profit necessarily?

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.

CACTUSWENDY
04-14-2008, 11:45 PM
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?

Soccer Mom
04-14-2008, 11:52 PM
:popcorn:

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.

AZ_Dawn
04-14-2008, 11:57 PM
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.:rant: 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.

SPMiller
04-15-2008, 01:00 AM
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.

Birol
04-15-2008, 01:07 AM
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.

Phaeal
04-15-2008, 01:13 AM
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.

SPMiller
04-15-2008, 01:14 AM
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.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.

Zelenka
04-15-2008, 01:30 AM
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.

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.

Zelenka
04-15-2008, 01:35 AM
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.

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.

AZ_Dawn
04-15-2008, 01:44 AM
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.

To be sure, few authors come out and say "Write all the fanfics you want" or "No fanworks or else". The majority of authors tend to turn a blind eye to it as long as it's a non-profit thing. Anne Rice, who outright forbids fanworks, is a well-known exception.

Birol
04-15-2008, 02:00 AM
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.

What you said, and what I was responding to was


... as far as I know, it's standard practice for authors to categorically forbid fanfiction.

When in fact, most authors turn a blind eye to the practice and do not categorically forbid it. Would you like me to find you some Stargate slashfic or maybe some Buffy, the Vampire Slayer fanfic? If authors categorically forbid it rather than turning a blind eye to it, it would not be as easy to find examples as it is.

jamiehall
04-15-2008, 03:10 AM
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 person who owns the copyright to the first work of fiction portraying those characters owns those characters, and anyone else using those characters IN FICTION must first get permission.

However, the case for nonfiction is completely different. In most cases, anyone can write guides to fictional universes created by others without violating copyright. Otherwise, we wouldn't have books like:

"Buffy the Vampire Slayer and Philosophy: Fear and Trembling in Sunnydale" by James B. South & William Irwin

"Seinfeld: The Totally Unauthorized Tribute" by David Wild

"The Encyclopedia of Fantasy" by John Clute & John Grant

"The Penguin Encyclopedia of Horror and the Supernatural" by Jack Sullivan and Jacques Barzun

"500 Great Books for Teens" by Anita Silvey

"God, the Devil, and Harry Potter: A Christian Minister's Defense of the Beloved Novels" by John Killinger

...and hundreds of other books of literary criticism and commentary, not to mention pretty much every book review ever written. All material discussing other people's fictional creations is in the realm of nonfiction, and as long as it is all written in your own words, it doesn't violate copyright.

Trademark, however, is a different issue. It is possible trademark has been violated here, but that's a much thornier issue where even the lawyers can get quite confused.



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.


This is a totally different issue than fanfiction. Nonfiction like this is ordinarily allowed (unless the allegations about material directly stolen from Rowling's work are true, in which case it is probably a rather straightforward copyright violation case and once again doesn't fall under the heading of fanfiction).

SPMiller
04-15-2008, 03:29 AM
When in fact, most authors turn a blind eye to the practice and do not categorically forbid it. Would you like me to find you some Stargate slashfic or maybe some Buffy, the Vampire Slayer fanfic? If authors categorically forbid it rather than turning a blind eye to it, it would not be as easy to find examples as it is.
I'm not too interested in fanfic, but I'm aware it's out there. And I'm pretty sure there's a big difference between turning a blind eye to fanfic and actually condoning it. I just don't think it's economically feasible to bring legal action until someone starts trying to make nontrivial income from your characters.

For example, George R. R. Martin has explicitly forbidden (http://www.westeros.org/Citadel/FAQ/Entry/1982/) fanfic. And yet it's possible to locate examples of Westeros fanfic (http://www.fanfiction.net/s/3973309/1/Her_Happy_Ending) online. Do you think I should tell him? Ha.

Now, this is off-topic, because this thing with Rowling seems to involve nonfiction.

mscelina
04-15-2008, 03:43 AM
Some tidbits from court today (http://www.hollywoodreporter.com/hr/content_display/film/news/e3ic5e17e9271fcb92ac43fafb4fddf4cef):


Rowling sought to distinguish the work of Lexicon from the hundreds of other fan efforts, saying she embraced those as long as they brought something additive, but she did not see that here. "I find this at attempt to jump on the bandwagon, to re-sell to the public what they already own," she said.

Opening arguments saw Warners/Rowling counsel Dale Cedari attempt to show that the book "took too much and did too little" -- a catchphrase she repeated often to indicate that the material had been rehashed and thus violated terms of fair use.




The case also saw Warners' Barry Meyer come to the fore when a letter was shown in which Vander Ark requested payment for use of a timeline that was originally included on Lexicon and he alleged was close to what would appear on a "Potter" DVD.



He said he joined an adult online discussion group devoted to the "Harry Potter" books in 1999 before launching his own Web site as a hobby a year later. Since then, neither Rowling nor her publisher had ever complained about anything on it, he said.

Vander Ark said he initially declined proposals to convert the Web site into an encyclopedia, in part because he believed until August that in book form it would represent a copyright violation.

From The Wall Street Journal (http://blogs.wsj.com/law/2008/04/14/day-1-of-the-harry-potter-trial-rowling-holds-her-own/):


But when Hammer tried to get Rowling to concede that the H.P. Lexicon is more comprehensive — in that it’s longer — than other books, she shot back: “Is that the best you can say for the Lexicon? That it has text?” She added, “An alphabetical rearrangement is the easiest and laziest way to re-sell my work.”

And the NY Times (http://www.nytimes.com/2008/04/14/books/14potter.html?pagewanted=1&_r=1&ref=arts):


Roger Rapoport, publisher of RDR Books, said he believed that Mr. Vander Ark’s work and Ms. Rowling’s encyclopedia could both exist. “We don’t think we’re a threat to J. K. Rowling,” Mr. Rapoport said in an interview. He said he paid Mr. Vander Ark a “tiny advance” for the book last August and was planning to print about 10,000 copies.


The case also explores the line between free Web content created by fans and a commercially published book. Ms. Rowling has openly praised the Web site on which the Lexicon is based, giving it a “fan site award” in 2004 and commenting in interviews that she even relied on the site — which provides an annotated catalog of characters, spells, magic potions, locations and events in her books — while writing. It was only when RDR decided to transform the site into a book that she objected.

Some interesting things to mull over here. I am still not convinced that the Lexicon encyclopedia would constitute fair use of Rowling's material. Any other thoughts?

jamiehall
04-15-2008, 04:02 AM
Some interesting things to mull over here. I am still not convinced that the Lexicon encyclopedia would constitute fair use of Rowling's material. Any other thoughts?

So, the claim is that it's a copyright violation rather than a trademark violation, and that it's a copyright violation because it is too close to Rowling's own words?

Or is this case trying to create a new precedent so that you can't write nonfiction books discussing other people's fictional creations?

I'm a bit confused as to what claims are being put forth. If it is the former claim, then whether Rowling is right or not really depends on the details of how close it really is, but if it is the latter claim, then if Rowling wins this case could seriously impact the rights of all nonfiction authors from now on.

:Shrug:

mscelina
04-15-2008, 04:07 AM
RDR has been sued for copyright infringement. The thing I find interesting about this is that Vander Ark originally was worried that this would constitute copyright infringement but that the publisher assured him it would not.

I gather from this that Vander Ark was encouraged--and paid--by the publisher to take the content from his site, which was already approved of by JKR as a fansite, and use it for the Lexicon in the hopes that they could thus avoid any legal action on the part of the author. Does anyone else get that?

In other words, perhaps the publisher deliberately chose to use this material in the realization that, because Rowling had apparently used the site herself in the past, there would be less of a chance that she could sue them and win in an infringement suit.

jamiehall
04-15-2008, 04:26 AM
I gather from this that Vander Ark was encouraged--and paid--by the publisher to take the content from his site, which was already approved of by JKR as a fansite, and use it for the Lexicon in the hopes that they could thus avoid any legal action on the part of the author. Does anyone else get that?

In other words, perhaps the publisher deliberately chose to use this material in the realization that, because Rowling had apparently used the site herself in the past, there would be less of a chance that she could sue them and win in an infringement suit.

If it's a case of it only being okay as to copyright because permission was given by Rowling for the website material, I don't see how excerpting the website directly in the print publication would improve things any, since electronic rights and print rights are two separate things.

kellysarah
04-15-2008, 01:16 PM
I can't remember, but wasn't there a fandom released book that came out at the same time at the last HP book? I'm sure one of the websites over here (UK) published a book that was advertised next to HP and the Deathly Hallows in Waterstones. If I'm remembering correctly, she didn't block that one.

Also, another creator who doesn't block fanfic is the master himself, Joss Whedon. But LK Hamilton has said she doesn't want people to write it of her books.

Momento Mori
04-15-2008, 02:02 PM
mscelina:
if Rowling permitted van Ark to use the same material on his website and is now objecting to its use in his Lexicon, does that in any way change her infringement status?

One of the issues that's come out in the documents is that the material in the book is not the same as the material on the website. The Lexicon website also includes essays and commentary on the books, together with speculation as to how Rowling came up with some of the ideas. The Lexicon book doesn't have any of this material and instead appears to be mainly entries compiled using quotes from the Potter books.


C.M.C.:
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 case isn't about using the characters, it's about using substantial amounts of the underlying text apparently without using quotation marks (according to yesterday's testimony).


Birol:
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?

I think I'm correct in saying that there was advertising to help offset the server costs but in the main the site was subsidised through private donations, including money from people who ran another fan site.


AZ_Dawn:
This case will help determine what my policy on fanworks will be

Just to make the point, this case is not about fanfiction. Fanfiction (contrary to popular belief) does not involve taking chunks of original text, but rather using characters, plot points, locations etc which are not, by themselves, protected under copyright. However, I believe that if Rowling loses this case, a lot of authors and publishers will adopt a zero tolerance policy on any kind of fanwork (including fanfiction) in order to avoid any possibility of a suit similar to this.


Phaeal:
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?

According to the papers filed, the other non-fiction books involved essays, discussion of the underlying works and had been done with the consent of Rowling and her publisher and in consultation with them. The Lexicon book apparently consists mainly of quotes from the Potter books with no attempt at discussion or analysis.


Phaeal:
Push that far enough, theoretically, and you open the door to fan fiction publication.

Possibly, although the vast majority of fanfic authors don't try that (there have been a few publicised exceptions who have been well and truly squished by fandom and the original author/publisher).


mscelina:
The thing I find interesting about this is that Vander Ark originally was worried that this would constitute copyright infringement but that the publisher assured him it would not.

Not only that but Vander Ark actually asked Bloomsbury/Rowling if he could publish the Lexicon and they said no. He then asked if he could help Rowling producer her encyclopaedia and they said no. But he went ahead with RDR anyway. Still, he was smart enough to get an indemnity clause in there to protect him, which makes me think that RDR really didn't plan this through - I'd certainly be interested in knowing whether they spoke to a lawyer before hand because the strategy seems awfully risky.

Having read yesterday's court reports, it looks like RDR is taking a real kicking in court. In the UK, if a judge is making jokes about the case or the defendant, it's a sign that you should settle quickly.

MM

Sirius
04-15-2008, 02:14 PM
This item: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/83/ is a document filed by JK Rowling's lawyers and represents (in the pie-chart shown at Exhibit A) the plaintiff's estimate of the percentage of the Lexicon book which consists of JKR material (that is, directly lifted or lightly paraphrased). This is claimed at 91.41%. The percentages are quite different with regard to the Lexicon website which includes a large number of essays, art and so forth. So, even leaving aside the fact that the website (which is not in suit) is available free of charge and the book was to be published commercially, the arguments based on fair dealing and transformative works as between website and book have to reflect the very different content of the two.

The essays and other analytical material which are on the website do not appear in the book (so far as appears from the Court documents, a full set of which are available at the site above) largely because they were not written by Steve Vander Ark, and their authors did not give permission to include them in any further commercial usage.

However, the publisher has, in yesterday's court testimony, also said this about the authorship of the book:

The WB lawyer asked if the other three authors of the book would be compensated; Rapoport said he did not have a contract with them but that Steve Vander Ark intended to compensate them. WB asked if any of the many people who have contributed to the Lexicon over the years were in line for compensation. After a few back-and-forths without answers, he said, "If the book is successful, there is a lot of possibility," Rapoport said. He said the book was "a lot like Wikipedia," in the way in which the fans have contributed over the years.


On the facts, therefore, characterising the usage as "fair" would be a pretty radical outcome.

jamiehall
04-15-2008, 08:24 PM
This item: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/83/ is a document filed by JK Rowling's lawyers and represents (in the pie-chart shown at Exhibit A) the plaintiff's estimate of the percentage of the Lexicon book which consists of JKR material (that is, directly lifted or lightly paraphrased). This is claimed at 91.41%. The percentages are quite different with regard to the Lexicon website which includes a large number of essays, art and so forth.

That clarifies things more for me. Anything with that much directly quoted or lightly paraphrased material is almost certainly a copyright violation, and does not fall into the usual category of the nonfiction-books-describing-fictional-universes of which I gave examples previously.

DWSTXS
04-15-2008, 09:49 PM
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.


I agree with Jess.
If she isn't protecting her future rights though, I wonder if she would block it. Frankly, I can't see why she would want to.

cethklein
04-15-2008, 11:15 PM
If 2034 of the 24someodd entries are directly taken from Rowling's work, there's very little doubt that in some way trademark infringement is involved. However, if Rowling permitted van Ark to use the same material on his website and is now objecting to its use in his Lexicon, does that in any way change her infringement status?

No. Because his website was free to the public. He plans to profit from this book, that's what makes it different. (I think Van Ark genuinely doesn't understand this though nor does his publisher. They both seem to think if it's ok on the internet it's ok to print and sell which says a lot about the experience of this publisher, or lack thereof.) And even if not, as others pointed out, internet rights and print rights are seperate anyway and I doubt she gave him print rights.

I know essentially nothing about Harry Potter nor am I interested in it, but I think this case is vERY important. It will determine how fair-use is applied. We should all hope JKR wins this thing.

Sheryl Nantus
04-16-2008, 12:34 AM
I'd be ticked if I were one of the "other authors" that "may be compensated" for their work on the website "if" the deal goes through for the book.

I mean, you donate the work for free and for love of the story and this guy's gonna make money and "maybe" cut you in for a bit of the pie?

So not fair.

CDarklock
04-16-2008, 12:36 AM
for someone else to be able to make money by using someone else's characters without their consent.

This is historically how the cases have been decided in America - but not on whether the infringer makes money, simply on whether the original author potentially loses money.

See, when this webmaster publishes his cyclopedia, Rowling can't publish one with the same success. Some nonzero number of people will buy his book and not hers. And traditionally, American courts don't allow that.

Meanwhile, when the 2-Live Crew did their own version of "Pretty Woman" which included such variations as "Fat Booty Woman", the court ignored that the crew were making money, and decided in their favor because the estate of Roy Orbison had absolutely no intention of making any product that competed with it. Hence, they lost no money, and the infringing work was a "fair use" of the material.

cethklein
04-16-2008, 01:13 AM
I'd be ticked if I were one of the "other authors" that "may be compensated" for their work on the website "if" the deal goes through for the book.

I mean, you donate the work for free and for love of the story and this guy's gonna make money and "maybe" cut you in for a bit of the pie?

So not fair.

That too and that's an element many aren't looking at. This guy not only wants to profit off of Rowling's work but that of other people as well. He sounds more and more like a goon every time I hear about him.

AZ_Dawn
04-16-2008, 01:47 AM
However, I believe that if Rowling loses this case, a lot of authors and publishers will adopt a zero tolerance policy on any kind of fanwork (including fanfiction) in order to avoid any possibility of a suit similar to this.

My thoughts exactly, and it would be a pity, too. I've seen some nice respectful fanart by people who wouldn't even dream of profitting from it.:(

cethklein
04-16-2008, 04:18 PM
The mroe I read about this the more disgusted I become. This guy is just a bum who didn't "write" much of anything, he copy/pasted someone else's material. if 91% is directly liften from JKR, I'm sure antoher few percentage points worth are lfited from contributors to his site. Did this guy "write" anything original here at all? The fact he "cried" in court shows he is likely not right in the head, it sounds liek this guy genuinely believes he's right. I blame RDR because they planted these seeds in his head. They should be ashamed and have no right to call themsleves a legit publisher.

A real publisher would never accept a book liek this and sure as hell wouldn't incite someone to write a book like this as it's claimed they did.

Bmwhtly
04-16-2008, 04:53 PM
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.Ms Rowling was on the Radio News yesterday, she made the point (and I think it's a valid one) that there are many books that talk about Harry Potter (positively and negatively), she's fine with that.
But this one has 'no comparisons and barely any analysis.'
That's why she's against it.
I, for one, can see her point. If this chap has just lifted quotes and facts from her books, wrapped them up in alphabetical order without Adding anything, that certainly makes him look in the wrong.

Quite apart from the fact that she can afford far better lawyers than him.

Claudia Gray
04-16-2008, 06:12 PM
Rowling testified very well. Vander Ark did not. Rowling's team is definitely trying to suggest a very broad view of permissible fanworks -- she testified that she didn't read fanfic but had no problem with it, and she positively lauded several other fan efforts, both nonprofit and for-profit, that demonstrated creativity and research (i.e., "transformation") -- but to draw the line here. And this is a line courts have drawn before: There was a case several years ago of a guy who published a "Seinfeld Trivia Book" based only on facts from the show, and this was held to be infringing. A book about the psychology of Seinfeld, however, would've been in the clear. Rowling's team is arguing that Vander Ark's work is more like the former than the latter, and thus far they've done a fairly good job of demonstrating that.

It is not standard practice for most authors/creators/etc. to forbid fanfic. Most authors turn a blind eye. Some forbid. I think more authors genuinely encourage fanfic than forbid it, and I think they're the smart ones. For me, personally, ever since I was a little kid, the first thing I did when I read a book or saw a movie was wonder what other stories could be told. Writing fanfic down when I got older taught me a lot about writing, and helped me make some tremendous friends. When a creator forbids fanfic, that creator is basically telling me, "The way you enjoy fiction is wrong." So I then do not watch/read/buy/etc. that person's works.

mscelina
04-16-2008, 09:59 PM
Here's an interesting bit from my Publisher's Lunch:


Judge Tells Potter Parties to Settle the Case
After the second day of testimony in the Harry Potter trial, Judge Robert Patterson, Jr. urged the parties to settle, expressing concern that the case is "more lawyer-driven than it is client-driven."

Patterson said, "The fair-use people are on one side, and a large company is on the other side...The parties ought to see if there's not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair-use doctrine is not clear." He added, "Maybe it's too late. Maybe we've gone too far down the road. But a settlement is better than a lawsuit."

Scholastic's Suzanne Murphy testified as an expert witness for Rowling, while former Random House executive Bruce Harris was the expert witness for the defense. Harris testified "that he believed there was little chance that Mr. Vander Ark's lexicon -- which, he said, might warrant a first-run printing of about 1,500 copies -- would harm Ms. Rowling's market."

Meanwhile, author of the Lexicon Steven Jan Vander Ark cried on the stand. As the Times puts it, "It was an emotional culmination to three hours of testimony in which Mr. Vander Ark gushed over Ms. Rowling and her work like the devoted fan that he claimed to be, and disarmingly preceded almost every answer to a question with an 'Um.'"

Rowling's reaction to his testimony by e-mail: "A fan's affectionate enthusiasm should not obscure acts of plagiarism."
WSJ

Let me see if I can find a linkie.

mscelina
04-16-2008, 10:00 PM
http://ap.google.com/article/ALeqM5hIGNIcztySvpGhm95iGPhNL7ov1AD9032GHG1

IceCreamEmpress
04-16-2008, 11:05 PM
And this is a line courts have drawn before: There was a case several years ago of a guy who published a "Seinfeld Trivia Book" based only on facts from the show, and this was held to be infringing.

Castle Rock v. Carol, a very important case.


A book about the psychology of Seinfeld, however, would've been in the clear. Rowling's team is arguing that Vander Ark's work is more like the former than the latter, and thus far they've done a fairly good job of demonstrating that.

Yep. Rearranging someone else's IP without their permission isn't creating an original work.


If The Harry Potter Lexicon were ever to be published, I plan to spend a bit of time creating and publishing The Harry Potter Lexicon Lexicon, a convenient reverse-alphabetization of The Harry Potter Lexicon for people who like to look things up backwards. ;)

AZ_Dawn
04-16-2008, 11:08 PM
Here's a blog (http://jkrtrialblog.livejournal.com/) I heard about that was created specifically to report on the trial. If this person is correct...well, let's just say Vander Ark isn't very loyal to his publisher.



I blame RDR because they planted these seeds in his head. They should be ashamed and have no right to call themsleves a legit publisher.

So true. They're idiots at best if not outright scuzz. But let's not let Vander Ark shirk his fair share of the blame. Nobody forced him to sign this juicy contract (http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/37/10.html).

Soccer Mom
04-20-2008, 06:00 AM
Fair Use Debated in court (http://www.realitytvworld.com/apwire/news/harry-potter-case-illustrates-blurry-line-in-copyright-law-1.php?articleId=20116076&channelId=590)


It was a surprising departure for Rowling, who has encouraged so-called "fan fiction" and once said there is nothing wrong with people writing new stories for her characters, to share with friends.

The author and her lawyers said they were stirred to action by the proposal to move the Potter lexicon from the anything-goes Web, where it was available for free, into book form, where it would compete directly with a Potter encyclopedia that Rowling plans to write herself.

In short, by deciding to sell his material, Vander Ark was stepping across a line. He was no longer just an enthusiastic fan, but a professional and potential competitor — fair game for the lawyers.

Bubastes
04-20-2008, 07:25 AM
Usual disclaimer: this is purely my opinion based on what I've gleaned from the news articles about this case and does not constitute legal advice, blah blah blah blah.

From my understanding of the case, the main issue is whether Vander Ark's Lexicon is fair use of Rowling's material. My law prof loved saying that "fair use" is the BANE of an attorney's existence because it's so fuzzy and fact-specific. If A = the copyrighted work and B = the infringing work:

B = or more particularly, the purpose and character of B. Is it for commercial gain or non-profit use? Does B transform the copyrighted work into something new to further knowledge about the copyrighted work? Without seeing the Lexicon, I don't know. If the Lexicon contains mostly quotes with little original new material, then this factor may not help Vander Ark. However, if the Lexicon contains new material, original analysis, and other information that was not written by Rowling (e.g., it was a "transformative" use of the material), then this factor tips more in Vander Ark's favor.

A = amount of the copyrighted work that was copied (or as I like to remember it: A/B). The more work copied, the less it looks like fair use and more like superceding the original. This factor weighs in Rowling's favor since so much material was copied (that pie chart is pretty damning against Vander Ark).

N= nature of the copyrighted work. If the work is fiction, courts tend to grant broader protection than for non-fiction because (for obvious reasons), facts/news/public domain information should not be privately owned. This factor cuts in Rowling's favor.

E = effect of the use on the market for the copyrighted work. I think that this is where the website vs. print dispute hinges because the print version of the Lexicon arguably reduces the market for any future encyclopedia Rowling wishes to publish. A website may not be considered a direct competitor for a book, but a book certainly would be a direct competitor for another book (e.g., the Lexicon could act as a market replacement for a Rowling-written reference). This factor probably cuts in Rowling's favor.

Like I said, these are just my random thoughts based on limited information. I do hope, though, that the BANE framework helps clarify people's analysis of fair use. One thing to remember: fair use is a defense to copyright infringement. Vander Ark bears the burden of showing that his use was fair even though it infringes Rowling's copyright. Thus, any questions on whether Rowling's characters or story or whatever are copyrightable miss the point. The fair use defense assumes that infringement did occur. The question is whether that infringement is still a fair use of the copyrighted material.

Bubastes
04-20-2008, 04:05 PM
OK, another thought came to me (a good night's rest will do that to you): if you want an even more macro framework to think about the fair use issue, you can view it as a balancing act with copyright on one side and the First Amendment on the other. We want to protect the author's rights, but we don't want to stifle free speech about the author's work. That's why it's okay to quote snippets or write books about copyrighted works. However, the fair use doctrine draws the line between what's lawful speech and unlawful copying. Hope this helps.

Mac H.
04-20-2008, 04:54 PM
Why would RDR books fight this?

If it is true that it would only sell a few thousand books, and that they would only make (say) $10-$20 profit on each, then why spend $50k-$150k in costs to fight it? They are employing FOUR trial counsel .. let alone all the preparation work.

Especially when defenses's star witness is saying "Yeah - I thought it would be illegal as well !"

What do they hope to achieve?

Mac

Bubastes
04-20-2008, 05:07 PM
Why would RDR books fight this?

If it is true that it would only sell a few thousand books, and that they would only make (say) $10-$20 profit on each, then why spend $50k-$150k in costs to fight it? They are employing FOUR trial counsel .. let alone all the preparation work.


The "we're only going to sell a few thousand books" doesn't pass the B.S. test for me. They know there's a HUGE potential market for the book, and they wouldn't be investing the money to publish the book if they didn't think they could cash in. I suspect that this statement was a way to minimize the "E" factor in the BANE test -- they may be trying to argue that their tiny book run won't effect the sale of any future Rowling encyclopedia.

$50-$150K actually sounds like a pretty low legal bill, especially with that many attorneys. Is this an actual number or an example? It's possible that the attorneys are being retained on an alternative fee arrangement (e.g., fee cap or contingency fee arrangement).

That statement from the defense's star witness? It may have been a blunder. Witnesses often say the darndest things even after hours of prepping and coaching. I wouldn't be surprised if the defense attorneys went "D'OH!" when they heard that.

Mac H.
04-20-2008, 05:40 PM
Yeah - I deliberately gave a 'low' side figure for the legal costs - giving them the benefit of the doubt. It wouldn't surprise me if the lawyers were using this high-profile case to up their own profile, so it might be quite a bit cheaper than a 'normal' case.

And that statement wasn't a suprise one on the stand .. it was a carefully vetted statement in part of the 'back and forth' of statements pre-trial. (OK - I paraphrased. It wasn't that bad: "Until August 2007, I believed that an encyclopedia,in book form, would represent a copyright violation. This was an assumption on my part, however, as a layperson" )

Looking over the evidence submitted, BOTH sides have been rather ...err... 'liberal' with the truth.

For example, the HP side claims that his encyclopedia is totally different to previous encyclopedias because it doesn't add much analysis. It compared the amount of additional analysis in his new work to 3 earlier commentaries .. none of which were Harry Potter Encyclopedias !! Yes, they knew of other Encyclopedias, but conveniently didn't use them as comparison points. That seems just dishonest.

I honestly don't quite believe the pie chart .. it would be interesting to know HOW they summarised the massive tomes. For example, here's a sample entry of a major character (Hagrid):


His acromantula, Aragog, is not the only “interesting creature” that has attracted Hagrid’s attention; he has since been known to attempt to raise a dragon (PS14), illegally breed Blast-Ended Skrewts (GF13), and hide his giant half-brother, Grawp, in the Forbidden Forest (OP30), in addition to his “normal” creatures like his pet boarhound, Fang.

His fascination with such creatures has gotten himin trouble at times as a teacher, such as a lesson on hippogriffs that led to Draco Malfoy getting slashed (PA6) and a lesson on thestrals, which Umbridge notes are classified as “dangerous” (OP21). In such cases Hagrid tends to lose his confidence and his nerve, and his classes turn boring for long periods of time (PA8). From the moment he was sent to retrieve Harry for his first year at Hogwarts, Hagrid and Harry Potter became friends, and have remained so ever since. Harry, Ron, and Hermione visited Hagrid’s hut regularly whilein school (OP20), and Hagrid has served several times as a bodyguard for Harry (HBP6, DH4). When Harry was on the run from the Ministry of Magic, Hagrid also threw a ‘Support Harry Potter’ party in his house, and was nearly arrested (DH22). Rowling chose Hagrid’s name because of an old English dialect word, “meaning you’d had a bad night. Hagrid’s a big drinker. He has a lot of bad nights” (Con).

Yet despite his flaws, as his open bawling at Dumbledore’s funeral attests (HBP30), Hagrid is just about as genuine as they come.

Here's a sample entry of a minor character:


McKinnon, Marlene
(d. July 1981)
A member of the Order of the Phoenix in the 1970s, Marlene and her whole family were killed by Voldemort’s supporters (PS4, OP9), including Travers (GF30), shortly before Voldemort’s downfall (DH10).

How would you analyse entries like that to get a 90% copying rate? Not only that, but the HP expert analyser claimed that the book 'makes use of extensive paraphrasing that is alarmingly similar to the Harry Potter text'.

Hang-on .. how there be 'extensive paraphrasing' yet have over 90% the same?

Not only that, but the HP expert witness claimed that the book had 'few citation provided'. You have to be kidding - look at the examples above - there seems to be a citation to the exact chapter at a rate of about 1 every sentence! (Those numbers in brackets are references --- so OP21 is 'Order of the Phoenix, Chapter 21. It is impossible to add any more details to the citations, because the exact page number changes with different editions)

In fact, it seems to be the opposite .. citations are provided to tedious detail.

Mac
(PS: Of course, I'm not a lawyer. To me, law is a fascinating spectator sport)

Bubastes
04-20-2008, 05:49 PM
You raise some excellent points (and thanks for positing the excerpts). Your excerpts show why this case is so difficult. Are the excerpts and paraphrasing transformative enough to fall under the fair use exception? I sure can't tell -- you can definitely argue it both ways.

Stormhawk
04-21-2008, 01:25 AM
Why doesn't she just work with the guy? If she herself has used the online version, couldn't she just grab a copy of the text, sprinkle in her Rowling magic, organise for some illustrations and then release what would be essentially every fanboy's wet dream? (Both in terms of content - it would be the ultimate encyclopedia, and in terms of what it was - a fan getting a chance to collaborate with their idol).

Keyan
04-21-2008, 02:17 AM
I agree with Jess.
If she isn't protecting her future rights though, I wonder if she would block it. Frankly, I can't see why she would want to.

Maybe her publisher wants to? To protect *their* future income?

Many contracts include language that require an author to join the publisher in infringement suits.

I think that Cory Doctorow - who believes in making his stuff available online free if possible - was annoyed about that, and tries to get those clauses out of any contracts he signs.

Keyan
04-21-2008, 02:20 AM
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.

But isn't that what Intellectual Property is about?

I mean, the whole point is that it's property. And one of the uses of property is to generate revenue from it.

Mac H.
04-21-2008, 02:35 AM
Many contracts include language that require an author to join the publisher in infringement suits.You can get 'joined' to a suit even if you don't want to ... in fact, the defense would 'join her' to the suit even if she wanted to avoid it.

The reason is to avoid double jeopardy. Otherwise, the publisher could sue and fail ... but it would still be a good test of the strategy. Then JK could sue afterwards for herself and use a totally different strategy (since the first one failed) and perhaps succeed .. basically getting two bites of the cherry.

To avoid that, the defense would attempt to get JK named as a party whether she wanted to be or not.

One example where a lawyer forgot to do that was in a case where 'Writer A' sued Cameron for plagiarism. The case was nonsense, and got thrown out of court. Then 'Writer B' retook EXACTLY THE SAME case to court again ... and it had to be heard all over again because Cameron's lawyers neglected to get Writer B attached to the original case. (Writer A had written the script based on an earlier work by Writer B)

Writer B acknowledged that the first case was lost badly, but argued that, despite being called as a witness to the original case, they hadn't taken part in the handling of the case and wanted to do it differently.

The court didn't have a choice and the entire case had to be reheard !

Mac

HeronW
04-21-2008, 02:59 AM
If Lexicon & Steve Van Ark are using Rowling's characters, settings, etc., in a book yeah, that's flat out plaigerism.

Fan sites are usually free, folks post comments, fanfic, etc, and the fanfic writers should give credit to the originators.

When I wrote fanfic, I always credited whomever were the originators. I didn't ask for money, never expected any and posted on free sites for that purpose.

I know there's a huge copyright infringment in foriegn countries who have unscrupulous publishers of HP sequels and spin offs 'because the originals are so popular'--and instant gratification beats waiting for the real author to write something new.

These may be 'talented' authors getting published but they are first scammers, not fans, and certainly not ethical.

AZ_Dawn
04-23-2008, 01:21 AM
Found out about these this morning: the transcripts for the trial! (http://cyberlaw.stanford.edu/node/5748)

I couldn't read the whole thing. The length of the text turned me off to online reading and I don't have enough ink for 300+ printed pages to read off line.:e2thud:I thought I'd post the link, though, for the hardier souls on the forum.

Christine N.
04-23-2008, 03:36 AM
If Lexicon & Steve Van Ark are using Rowling's characters, settings, etc., in a book yeah, that's flat out plaigerism.



But that's the rub...he's not creating new stories, only a reference guide to the existing ones. If I were to write a thesis on HP, or an critical article for a scholarly journal, I would be able to quote passages directly from the books, as long as I cited them properly. That's not plagiarism, it's fair use. Van Ark has no pretensions of claiming the words as his own, never did. That being said, depending on the use to which I put said paper, could be an issue. Van Ark is in essence creating a hard copy of the website reference guide he's had for years, which he would sell for profit. That seems to be the biggest issue, because JKR also has plans for a similar book, with the proceeds going to charity. So Van Ark's book would be a direct competitor in the marketplace. It's not that he's copying and not citing, it's that he's trying to profit, I think.

The problem is, that she has allowed the Lexicon to exist up until now with no problems, along with MuggleNet and The Leaky Cauldron and such sites. Does that permission somehow dilute her copyright to this type of publication? The courts will have to decide.

Momento Mori
04-23-2008, 02:23 PM
Christine N.:
If I were to write a thesis on HP, or an critical article for a scholarly journal, I would be able to quote passages directly from the books, as long as I cited them properly. That's not plagiarism, it's fair use. Van Ark has no pretensions of claiming the words as his own, never did. That being said, depending on the use to which I put said paper, could be an issue.

The reason it would fall within "fair use" if you were writing a thesis on HP though is because you'd be quoting material and then adding your own commentary/assessment/whatever to it (e.g. "on page XX of Harry Potter and the Prisoner of Azkaban when Harry says "blah blah blah" this serves to demonstrate that J. K. Rowling is trying to corrupt the minds of young America by etc etc" ;)).

What's come out of the Lexicon case is that Vander Ark's book doesn't have that commentary, it's essentially reproductions of description as written by Rowling without any attempt to add to it and apparently without even quotation marks to identify it as material from the books.


Christine N.:
That being said, depending on the use to which I put said paper, could be an issue. Van Ark is in essence creating a hard copy of the website reference guide he's had for years, which he would sell for profit. That seems to be the biggest issue, because JKR also has plans for a similar book, with the proceeds going to charity. So Van Ark's book would be a direct competitor in the marketplace. It's not that he's copying and not citing, it's that he's trying to profit, I think.

Interestingly, Vander Ark's website does have the essays and additional content that would arguably seem to bring it within the fair use doctrine. Unfortunately it seems that because he didn't write those essays/additional content himself, he didn't include it within the book.

The book therefore becomes a virtual database of quotations without the same being attributed to the underlying work, which is why I can understand why Rowling is so pissed off. If she goes ahead and produces her own Encyclopaedia, then from what I've read, it would be largely new material based on the notes she produced (i.e. she'd be producing new material for it) and I can therefore see why she'd be so discouraged that someone is able to publish their own "encyclopaedia" which is basically a rip off of the work that already exists without doing anything original or transformative to it.


Christine N.:
Does that permission somehow dilute her copyright to this type of publication?

That's one of the issues to be decided in the case but all the commentary I've read on it seems to think that Rowling will win on it (i.e. allowing the website did not dilute her copyright). It's the issue that most fanfic supporters are interested in because if she does by some fluke lose on it, you'll probably see fanfic sites being served with C&D letters left, right and centre as authors, publishers and other media producers seek to preserve their rights and avoid finding themselves in a similar situation.

AZ_Dawn, I'm reading through the transcripts during my lunch break. I've got to say, having found Rowling to be a bit of a cold fish in the past, I now find myself drawn to her snarkalistic majesty. There's a woman with a gift for the barbed putdown.

MM

Christine N.
04-23-2008, 03:04 PM
The reason it would fall within "fair use" if you were writing a thesis on HP though is because you'd be quoting material and then adding your own commentary/assessment/whatever to it (e.g. "on page XX of Harry Potter and the Prisoner of Azkaban when Harry says "blah blah blah" this serves to demonstrate that J. K. Rowling is trying to corrupt the minds of young America by etc etc" ).



Yes, well that's the whole point of the trial, isn't it? What's fair use and what's not. I agree she should win, but the waters are murky when it comes to this stuff.

Mac H.
04-23-2008, 04:41 PM
I can therefore see why she'd be so discouraged that someone is able to publish their own "encyclopaedia" which is basically a rip off of the work that already exists without doing anything original or transformative to it.One minor point - 'transformative' has a very specific meaning in copyright law.

For example, if you automatically create thumbnails of copyright images then the use is 'transformative' .. because the thumbnails have a different USE to the original.

Since the Encyclopedia has a different USE to the original text, it is clearly transformative - it doesn't matter how little work or artistry went into it. (The example of the thumbnail images makes that clear)

The samples of the text that I've seen indicate the exact opposite to what is said here ... the text is full of citations and don't seem to be simply copies.

Could someone give examples of excerpts that are simply a copies of existing text?

Mac

James81
04-23-2008, 04:59 PM
Is he SELLING the lexicon itself?

If not, then I don't see how it's infringement of copyright.

Bubastes
04-23-2008, 05:26 PM
Copyright infringement does not require a sale of the infringing material.

Also, I'm not sure if I agree with Mac H.'s definition of "transformative." The Supreme Court appears to view transformation of a work as requiring addiition of new expression or meaning or adding value to the work via new insights, aesthetics, understandings, criticisms, etc. While Vander Ark could argue that the Lexicon adds value to Rowling's work, this is a murky area as well.

girlyswot
04-23-2008, 05:41 PM
Interestingly, Vander Ark's website does have the essays and additional content that would arguably seem to bring it within the fair use doctrine. Unfortunately it seems that because he didn't write those essays/additional content himself, he didn't include it within the book.



Also because many of those essays were written years ago and are now irrelevant - there's one that carefully and painstakingly tries to explain why Harry will never end up with Ginny, for instance.


Is he SELLING the lexicon itself?

If not, then I don't see how it's infringement of copyright.
Well, he isn't selling it because JKR slapped a lawsuit on him. ;) But he was certainly planning to.

Momento Mori
04-23-2008, 06:05 PM
Mac H.:
'transformative' has a very specific meaning in copyright law.

I know. I'm a lawyer by day (super ninja by night). ;)

I disagree with your example of thumbnails though as being transformative (although I'm not US qualified and am coming from an English law standpoint). I don't think that it's enough to say that you're putting something to a different use and agree with MeowGirl's assessment as regarding some kind of additional material, which would almost certainly be required under English law (although as both Christine N. and MeowGirl point out, it's a murky area that's ripe for debate).


Mac H.:
Could someone give examples of excerpts that are simply a copies of existing text?

I can have a root around in the transcripts when I get a moment. I know that Vander Ark was specifically questioned about a couple of entries where he admitted that he'd essentially reproduced descriptions in the book word for word because there was no other way of describing them.

MM

Christine N.
04-23-2008, 07:54 PM
Which would have been FINE, had he cited them properly. Every college student does it every single day (says the girl hip deep in articles psycholanalyzing Iago's closet homosexuality in Othello) and it's perfectly acceptable in that way.

I don't think it matters in the end - JKR's got hundreds of pages of notes that no one else has seen. Backstory, geneology charts, all that stuff fans are going to drool over. When she publishes HER encyclopedia, it will be completely canonical, and blow VanArk's little book out of the water.

icerose
04-23-2008, 09:23 PM
I don't know about all this. JKR is being made out to be a very bad person in this light. I highly sympathize with her and I have no idea what I would do in her situation. I would probably ask to team up so I had some control over it and 50% of the profits without having to do all of the work and gathering all that info, and still allow that fan some space with a reprimand that next time they should talk to me first.

The publisher that is trying to go ahead with this is the bad guy here I think. They should have sought permission first. They should know better.

Sheryl Nantus
04-23-2008, 09:44 PM
seems to me that the problem is simple - while it's free and open to the public, it's not a problem.

if he had decided to shut the website and offer paid memberships it'd be the same as him wanting to publish it - you're making money off of HER work, not to mention the other writers who donated their time and work to the project. Notice he's not saying anything about paying those contributors anything out of this.

toss the book at the jerk.

z10
04-23-2008, 09:46 PM
The integrity of Rowling's work dictates that it's her right to sue here

Scribhneoir
04-24-2008, 06:52 AM
The publisher that is trying to go ahead with this is the bad guy here I think. They should have sought permission first. They should know better.

Someone correct me if I'm wrong, but I believe they did seek permission first. JKR said no. They didn't like that answer, so they ignored it.

IceCreamEmpress
04-24-2008, 06:54 AM
Someone correct me if I'm wrong, but I believe they did seek permission first. JKR said no. They didn't like that answer, so they ignored it.

You are correct, and this was well-documented.

Mac H.
04-24-2008, 08:57 AM
"... he'd essentially reproduced descriptions in the book word for word because there was no other way of describing them."

Which would have been FINE, had he cited them properly. Every college student does it every single day ... and it's perfectly acceptable in that way.If you look at the excerpts posted above, you'll find he cites the original in tedious detail.

It may not be a very 'university approved' manner, but you can't say that he isn't citing !


Someone correct me if I'm wrong, but I believe they did seek permission first. JKR said no. They didn't like that answer, so they ignored it.
There is case law that supports the fact that even if you ask for permission and get refused, it doesn't nullify all the reasons you can use for doing it without permission.

The 'Pretty Woman' case covered this.

Mac
(PS: Momento - there is plenty of US case law that indicates that thumbnails are transformative. The case everyone quotes ia Kelly .v. Arriba Soft:

http://www.eff.org/files/filenode/Kelly_v_Arriba_Soft/20030707_9th_revised_ruling.pdf

To quote:


We find that Arriba’s use of Kelly’s images for its thumbnails was transformative.

Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience.
... Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose .. as a tool to help index.


It is clear why the judge said that the result of this case isn't obvious)

Momento Mori
04-24-2008, 01:19 PM
Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience.
... Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose .. as a tool to help index.

Ah - okay. I can understand why it was transformative in that situation. Interesting. Scary. But interesting.

Cheers for posting that, Mac. :)

MM

girlyswot
04-25-2008, 02:28 AM
If you look at the excerpts posted above, you'll find he cites the original in tedious detail.

Yes, he does cite everything. The significant differences between this and an academic essay are (a) the quantity of material cited as a proportion of the whole and (b) the reason for the citations. In an essay you would normally expect the citations to form a relatively small proportion of the whole and the majority to be original work. And in an essay, the citations are used to support an argument or as the subject of critical analysis. The HP lexicon is primarily composed of material that is unoriginal and the citations serve no purpose other than reproduction. There is no way that this would be acceptable, even in an academic essay.

That seems to me to be the crux of the matter. What do you get from the Lexicon that you don't get from the HP books (and other material provided by JKR)? A few snarky comments and some hoky etymology. That's not 'fair use' as I see it. But this is a legal case and stranger things have happened...


"... he'd essentially reproduced descriptions in the book word for word because there was no other way of describing them."


I think this speaks volumes, actually. Presumably JKR could find other ways of describing these things - because she's an author and they're part of her imagination. The reason SVA couldn't describe them any other way was because he couldn't take the risk of coming up with something different from JKR.

Bubastes
04-25-2008, 02:33 AM
There is case law that supports the fact that even if you ask for permission and get refused, it doesn't nullify all the reasons you can use for doing it without permission.

The 'Pretty Woman' case covered this.


However, the Pretty Woman case had a lot of other facts (e.g., the fact that 2 Live Crew made a parody) that tilted the scales in favor of fair use. In the case of parody, one would not expect the copyright holder to grant permission to someone who's going to make fun of the original work anyway, so that's why the lack of permission wasn't a huge issue in the Pretty Woman case.

mscelina
04-25-2008, 03:57 AM
But the Lexicon isn't--and is not intended to be--a parody. It is the result of thousands of (unacknowledged)people listing these references from Rowling's work solely. Any and all entries in the Lexicon result as the creation of the author solely, without analysis or review. Vander Ark owns the site where these facts were collected and categorized, and now seeks to capitalize off of someone else's work.

I still think that the primary culprit in this deal is the publisher. With Potter fever unabated and three more movies on the way, the Lexicon would have sold more than a paltry ten thousand copies.

Bubastes
04-25-2008, 04:24 AM
But the Lexicon isn't--and is not intended to be--a parody.

Exactly, which is why JKR's denial of permission may be a factor in this case even though it wasn't in the Pretty Woman case.

Deanna Lee
04-25-2008, 04:45 AM
As an author I believe that JKR has a the right and an obligation to protect her work from such infringement.

The publisher and the "fan" are in the wrong for going on with this after she said no. If he really was a "fan" - he would respect her and her work enough not to steal from her.

Mac H.
04-25-2008, 06:56 AM
In the case of parody, one would not expect the copyright holder to grant permission to someone who's going to make fun of the original work anyway, so that's why the lack of permission wasn't a huge issue in the Pretty Woman case.Fortunately we don't need to guess why that lack of permission wasn't an issue in that case.

The judges actually publish their reasoning. To quote:


We reject Acuff-Rose's argument that 2 Live Crew's request for permission to use the original should be weighed against a finding of fair use. Even if good faith were central to fair use, 2 Live Crew's actions do not necessarily suggest that they believed their version was not fair use; the offer may simply have been made in a good faith effort to avoid this litigation. If the use is otherwise fair, then no permission need be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use.
They are clear that being denied permission to use a work doesn't weigh against a finding of fair use.

They are clear that this has ZERO to do with the use being a parody.

Mac

Bubastes
04-25-2008, 05:30 PM
I do agree with you that being denied permission doesn't weigh against a finding of fair use. However, I disagree that it had nothing to do with the use being a parody. The key phrase, IMO, is the one just before the one you highlighted:


If the use is otherwise fair, then no permission need be sought or granted.

Parody is a form of fair use, so permission was not need in that case.

I do apologize for any confusion in my earlier posts, by the way. You are correct that denial of permission "doesn't nullify all the reasons you can use for doing it without permission." I want to make that clear.

Note: the quote you cited was in a footnote (fn. 18), not in the opinion itself. The text of the opinion where the footnote occurred was an analysis of the first factor of the fair use test (the purpose and character of the use of the copyrighted work). In the Pretty Woman case, the Court discussed whether the 2 Live Crew song was a parody and whether it was for commercial (as opposed to non-profit) use. More importantly, it emphasized the need for a careful weighing of the interests (free expression vs. protection of copyright) rather than any bright line presumptive rules in determining fair use:


[The Sony case] itself called for no hard evidentiary presumption. There, we emphasized the need for a "sensitive balancing of interests," 464 U. S., at 455, n. 40, noted that Congress had "eschewed a rigid, bright line approach to fair use," id., at 449, n. 31, and stated that the commercial or nonprofit educational character of a work is "not conclusive," id., at 448-449, but rather a fact to be "weighed along with other[s] in fair use decisions." Id., at 449, n. 32 (quoting House Report, p. 66). The Court of Appeals's elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the "fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use." 471 U. S., at 562. But that is all, and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance. The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own sake, let alone one performed a single time by students in school. See generally Patry & Perlmutter 679-680; Fisher v. Dees, 794 F. 2d, at 437; Maxtone Graham v. Burtchaell, 803 F. 2d 1253, 1262 (CA2 1986); Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1522 (CA9 1992). [n.18]

Text of the whole opinion in case anyone wants to read it (I do get a kick out of imagining the Justices writing this opinion):
http://www.law.cornell.edu/supct/html/92-1292.ZO.html

---------

Ooops, sorry for the digression into the Pretty Woman case. Back to the JKR case.....

Thus, Mac H. is absolutely correct that permission/lack of permission should not be weighted in the fair use analysis because fair use does NOT hinge on whether or not permission was granted. You don't need to get permission if the use is fair. But then we're back to square one: is the Lexicon fair use? If yes, then no permission was needed. If not, then permission was needed. In other words, fair use is fair use independent of whether or not the copyright holder granted permission.

However, being denied permission and going ahead anyway does show the accused infringer's lack of good faith, which may color the court's decision. Although, as you correctly noted, it may not weigh against a finding of fair use in the actual analysis, it does make the accused infringer "smell bad" (a highly technical legal term :D), which may color the way the court sees the case.

One other thing to note from the Pretty Woman case: whether or not the Lexicon was done for profit IS another factor, but again, not a presumptive one. Non-profit website tilts toward fair use. For-profit book takes it closer to the infringement line.

Did I already mention that fair use is the bane of IP lawyers?

Christine N.
04-26-2008, 01:38 AM
The problem, as someone else pointed out to me, is that JKR encouraged this site from the beginning. She CONTRIBUTED to it, she linked to it, she praised it. So there is this strange relationship with the work already, and it's not as clear as who is violating copyright (if they are, I think publishing a reference guide to an existing property might not fall under that) because up until now she's been all gung ho about the Lexicon.

mscelina
04-26-2008, 01:43 AM
The SITE--yes. The BOOK--no. That's the whole point. The site makes no profit from Rowling's work, unless Vander Ark gets a salary as administrator and that still is inconsequential. But the BOOK would generate income for him (and the publisher) and very little (if any) of the work within it is their own.

Mac H.
04-26-2008, 03:28 AM
However, being denied permission and going ahead anyway does show the accused infringer's lack of good faith, which may color the court's decision.Does it? Let's look at the other footnote again:


Even if good faith were central to fair use, 2 Live Crew's actions do not necessarily suggest that they believed their version was not fair use; the offer may simply have been made in a good faith effort to avoid this litigation.
In business (and in normal life) it is common to 'ask permission' for things you don't actually need permission for, just to make the road smoother.

Mac

Christine N.
04-26-2008, 05:05 PM
I get that she doesn't want anyone else to make money off her work. That seems completely reasonable to me. She put ten years worth of her life into the series. I've just been following the case with fascination, because of all the little intricasies that have come about.

And again, I think once her own encyclopedia is out in the world, it'll blow the Lexicon away as far as sales, so it won't even matter.

Rolling Thunder
12-06-2008, 10:28 PM
Bumping this to keep the history in context.


http://www.eonline.com/uberblog/b71935_muggles_beware_rogue_harry_potter.html

TrickyFiction
12-06-2008, 11:15 PM
http://www.eonline.com/uberblog/b71935_muggles_beware_rogue_harry_potter.html

Wow. I mean, I'd be too embarrassed, personally.

Darzian
12-07-2008, 03:49 PM
After everything that's happened, he still pushes on!

In a way, I admire his dedication to Harry Potter, but after a lawsuit filed by the author- this is just.........................

Red-Green
12-07-2008, 07:41 PM
Well, if he's rewritten the entries, so that they don't infringe on Rowling's copyright, it's no different than any other academic "guide to" work. If he hasn't scaled back his direct quotations to fair use levels, though, he better get a hat and hold the eff onto it. I can only imagine Rowling will crush him if it's the latter situation.

Rolling Thunder
12-07-2008, 07:56 PM
The article stated 'everyone' is happy at present so I can only assume JKR is, too. Time will tell.

IceCreamEmpress
12-07-2008, 09:52 PM
Well, Rowling has no opposition to derivative works in general, as she said in the court proceedings. So if Mr. Vander Ark has created a book that's an actual work of commentary rather than rearranged passages from Rowling's books, I imagine her reaction will be "Good luck with that."