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An Appeal In the "Harry Potter Lexicon" Case
NewYorkCountryLawyer writes "RDR Books, the would-be publisher of the book version of the 'Harry Potter Lexicon' Web site, has filed an appeal from the judge's decision in Warner Bros. Pictures v. RDR Books, the case involving the Harry Potter Lexicon. The judge, after a bench trial, issued an injunction and awarded statutory damages of $6,750 (as we discussed at the time), holding that the Lexicon was not protected by fair use due to (a) sloppiness in attribution in sections, (b) the length of some of the quotes, and (c) imitation of J. K. Rowling's writing style in portions. I recently wrote an article criticizing the opinion, but doubting that an appeal would be taken in view of the small damages award. I guess I underestimated the resolve of the defendants and defendants' lawyers — who include the Stanford Law School Center for Internet and Society."
Uhhh, wtf?
You can do things in the same style, you just can't copy an original work (i.e. note for note, stroke for stroke).
Mod me down, my New Earth Global Warmingist friends!
...(c) imitation of J. K. Rowling's writing style in portions...
Is that even an enforceable law?
No, it isn't, IMHO.
Ray Beckerman +5 Insightful
have to disagree with this. Copyright is there to protect the creator from the theft of what he creates.
No, it is not. Copyright is there to encourage the creation of more works into the public domain. The idea is that if we delay its entry into the public domain, the public's gain (incentive for artists to create more work) outweights the public loss (the temporary monopoly on the right to make and distribute copies).
After all, the idea that you can't do anything you wish with something you bought and paid for (actual, physical property), including copying the content and handing out the copies to everyone you want is ludicrous. The public would only accept it if we had something to gain for it, and that's why the constitution specifically qualifies the right of congress to establish copyright with for limited times, and indicates that it's purpose is to promote the progress of science and useful arts. It doesn't say, "to protect property," because if it had been considered property, there would be no reason to limit the length of the copyright.
And to those of you who will undoubtedly claim that US constitution is invalid because Rowling is British, the lawsuit in question is in US jurisdiction.
Fair use necessitates attribution- making it clear when text is being quoted or paraphrased, and when new material is being added by the author.
No it doesn't.
This particular defendant, however, claimed that he had written a reference guide. Since the novels are not reference guides, this would be a transformation of the copyrighted works, and it strengthens a fair use argument to show that the defendant has used the underlying work in a transformative manner. The court noted, however, that due to the lack of attribution, it wasn't actually a very good reference guide. This undercut the claim of it being a transformative work. That, in turn, weakened the fair use argument.
If he had instead written a parody, he would not have had to include attributions, since parodies are a type of transformative work where attributions aren't really expected. Such a parody could easily be a fair use.
Imitating Rowling's style is part of what creates the confusion.
It might further harm the 'it's a reference guide' argument, but copyright does not protect mere writing styles, nor does copyright care about confusion. Copyright chiefly cares about copying. A novel written in Rowling's style that didn't copy anything protectable from her corpus of work, would not infringe her copyrights.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
That's true. But not really all that relevant here. The Lexicon was not supplanting the market for the novels. And as the court pointed out, "[n]otwithstanding Rowling's public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works." There was a concern, however, that the lexicon might harm the market for some of the existing ancillary works it copied from, since it copied so much.
And more generally, there still isn't a right to profit. Remember, fair use only arises where there is prima facie infringement of an actual right, such as the right to reproduce the work in copies. Writing a bad review would not be infringement at all, unless it included quotes or something. Writing a competing series of terrible books would not be infringement either. Only if there is some underlying infringement would a fair use argument (and the fourth, monetary, factor) come into play. In the case of a review, I would be utterly amazed if a court decided that the loss of sales attributable to the review was relevant under the fourth fair use factor. I certainly cannot recall such an absurd outcome ever having happened.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
That is all very nice, but it is terribly inaccurate. I mean, you could have at least looked at Wikipedia!
Without getting bogged down with details, fair use was not created for the benefit of universities or academics, though they have certainly been beneficiaries. And as law that was essentially a creation of the courts, until quite recently, there wasn't even a statute. Congress didn't even formally take note of the doctrine until the 1976 Act (fair use dates at least to the mid-19th century) when they included a statute (17 USC 107) which I shall reproduce here, in its entirety:
That is fair use. And notice what it actually said: "[T]he fair use of a copyrighted work ... is not an infringement of copyright." The factors are just components in a test to figure out if a test is fair. And it's not a mathematical test, or a bright line test. You needn't succeed with all four factors. In some cases, you can do quite poorly on most, and still succeed. But it depends on the details of "any particular case." Just because it was fair for Alice to do something doesn't mean it will be fair for Bob, if their circumstances are not precisely identical.
There are no numerical limits here, no 10% of this, or 2500 of the other, or any such nonsense. Those are not legal guidelines, those are the creation of laypeople who are flummoxed by the lack of clear guidance from the courts, since with the case-by-case nature of fair use, and the rules and interpretations (not included here; they'd be too much work than I'm prepared to invest in a /. post) there can never be clear guidance. Even canonical examples (parody, time shifting, etc.) are not really inevitably fair. It is a fuzzy, messy matter of equity, and apparently those folks just can't stand that, so they have guessed and unfortunately, you think their guesses are gospel.
This is of course, not true, and I can immediately see instances where what they advise is probably fair (they don't know, of course, no one does) might not be, and where what they say is probably not fair might be.
If you're interested in fair use, if you want to get a grasp on what it is, and where it comes from, and what the rules are, you will have to read a lot of cases regarding it. And then, like the courts, you will be left with a vague sense of it, which defies easy explanation, but at least you can look at a set of circumstances and have a good idea of whether it is fair or not. Because fair use must be able to accommodate any circumstances (the Folsom court could not have even imagined time shifting video tape) it can never be pinned down.
In any case, you might want to stop spreading your misinformation. Those are just guesses by and for people who can't stand fuzzy rules, regardless of the fact that the rules actually are fuzzy, and need to stay that way.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.