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."

Comments

Harry Potter

[Anonymous Coward]

The story is about a boy who lives in a cupboard ("in the closet"). His Aunt and Uncle are ashamed of him because his parents were quite eccentric ("flaming") and they are deeply concerned and afraid that he will turn out just like them. On his 11th birthday (i.e. roughly at the onset of puberty), the boy discovers that he is actually a "wizard", different in both style and substance from straight people, or "muggles" (breeders).

The boy is groomed into his new existence by a large, hairy bear of a man who shows Harry a hidden underground community of "wizards"(the gay subculture) living right under the noses of the general population . Harry's first visit to this subculture involves traveling through "Diagon Alley", a play on the word diagonally (not straight).

Re:Harry Potter

[FooAtWFU]

All that and you couldn't link to bash.org?!

Re:Harry Potter

[Bobb9000]

Congratulations. You've noticed that the plot of Harry Potter has parallels to real-life persecuted minorities. You now qualify for a degree in obvious literary interpretation! If you like, you might want to go for a PhD - perhaps you could examine Christian symbolism in the Chronicles of Narnia. I see a bright future ahead of you.

imitation of J. K. Rowling's writing style...

[JoeCommodore]

...(c) imitation of J. K. Rowling's writing style in portions...

Is that even an enforceable law? If so most authors should have their books contested, as people learn partly through imitation and experience. Throwing weak points out like that makes me suspect of the ruling.

Re:imitation of J. K. Rowling's writing style...

[binarylarry]

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).

Re:imitation of J. K. Rowling's writing style...

[nog_lorp]

"Imitation of [Author X]'s writing style" would cover any written satire of the author. Since satire is universally accepted as protected and allowed under copyright law, imitation of style cannot be considered copyright infringement.

As a matter of fact this extends beyond writing to all works that can be copyrighted. Imitation of style covers, essentially, any possible satire.

Re:imitation of J. K. Rowling's writing style...

[Spasemunki]

Fair use necessitates attribution- making it clear when text is being quoted or paraphrased, and when new material is being added by the author. One of the points cited by the judge was the sloppy attribution and long quotes. By imitating Rowling's style while including long, unattributed portions of her work the authors of the Lexicon are making it unclear where her text ends and theirs begins, making their work appear to be a new composite work derived from Rowlings text rather than a work that comments on, satirizes, etc. Rowlings material.

The gist of the decision seems to be that if the Lexicon did a better job of clearly identifying what is Rowling's work and what is their own. That makes it hard to argue that they are commenting on or sampling Rowling's test in a manner compatible with fair use. Imitating Rowling's style is part of what creates the confusion.

Re:imitation of J. K. Rowling's writing style...

[Hal_Porter]

I'm not sure you can compare the HPL and a research paper. The actual text in Harry Potter is the basis of a billion dollar industry and Rowling's publishers have very good lawyers. Fair use has rules about quote length and attribution and it seems like this guy broke them. Of course a lot of research papers may break those same rules but it would be very unlikely anyone would sue over that.

Slashdot is schizophrenic about copyright, if someone had taken big chunks of GPL code and used them in a closed source application everyone would be baying for blood, but for some reason Harry Potter is considered entertainment and therefore OK to copy, a bit like movies and music. In a sense Harry Potter is open source - the text is freely available. It definitely isn't Creative Commons though, so while you are free to cite it you are not free to make derivative works, unless you have an agreement with Rowling herself.

From what I've read this guy cut and pasted big chunks of the original text and didn't add much himself. While the whole thing was non commercial he was safe but as soon as he started to make money he wasn't. It's actually the literary equivalent of using GPL code in a commercial, closed source application.

Re:imitation of J. K. Rowling's writing style...

[NewYorkCountryLawyer]

...(c) imitation of J. K. Rowling's writing style in portions...

Is that even an enforceable law?

No, it isn't, IMHO.

Re:imitation of J. K. Rowling's writing style...

[cpt kangarooski]

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.

Re:imitation of J. K. Rowling's writing style...

[Hal_Porter]

I believe the case was Woosh vs Woosh 2006, Woosh County Court, State of Woosh

Re:imitation of J. K. Rowling's writing style...

[cpt kangarooski]

Fair use has rules about quote length and attribution

No, it doesn't. Fair use ultimately boils down to 'you can use as much as is fair, given the overall circumstances.'

When you time shift television, you're 'quoting' the entire thing, and stand a good chance of successfully claiming that it's a fair use. In other circumstances, however, excessive copying can sink a fair use argument handily.

There's also no attribution requirement, but if you claim that you were engaged in a particular type of fair use, and that type of use normally involves attribution, failure to include the attribution may harm your argument, and ultimately, your defense.

Re:imitation of J. K. Rowling's writing style...

[NewYorkCountryLawyer]

I'm puzzled by the mention of "writing style".

Me too. I don't know why the Judge considered that a factor at all. I think the 2nd Circuit will disapprove that.

Re:imitation of J. K. Rowling's writing style...

[cpt kangarooski]

Rowling has an exclusive right to create derivative works

Which is not implicated in this case; the guidebook was not a derivative work. Rather, the author got in trouble for his excessive verbatim copying.

imitating the style used in the series and its associated works

Would also not constitute a derivative work.

Derivatives are defined in the law:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

As you can see, merely being based upon a preexisting work isn't enough. In practice, the derivative has to recast, transform, or adapt the preexisting work. An adaptation, like "Harry Potter: The Opera" would be a derivative. A sequel book, such as "Harry Potter and the Endless Revenue Stream" would be a derivative work. But as the court pointed out, a mere reference guide is not a derivative work, because it does not recast, transform, or adapt the thing to which it is a guide. This was covered pretty well in the Beanie Baby case, and the point was repeated in this case.

Likewise, merely using the style of the Harry Potter books would not constitute a derivative work, because that doesn't recast, transform, or adapt the preexisting books.

undercuts Rowling's ability to profit from the work in a way that a guide book written using a different style would not.

So? Copyright does not include a right to profit. Imagine the absurd results that would occur if it did: A scathing review of the latest book or movie that caused it to be a big flop would constitute copyright infringement! Even if it didn't copy so much as a word. Likewise, a rival author who wrote a series of dreadful books about vampires which drew away the audience for Harry Potter could be accused of infringing on the basis that her (bad) original works were undercutting Rowling's profits, despite a total lack of copying anything.

Re:imitation of J. K. Rowling's writing style...

[cpt kangarooski]

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.

Re:imitation of J. K. Rowling's writing style...

[ozmanjusri]

Slashdot is schizophrenic about copyright

It's weird, isn't it?

You'd almost think there was more than one person posting here.

Re:imitation of J. K. Rowling's writing style...

[cpt kangarooski]

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:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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.

diagonally (not straight)

[Anonymous Coward]

Diagonal lines are as straight as any other lines.

Wealth is relevant, at least in theory

[langelgjm]

What does her wealth have to do with it? I was not aware that society's subjective judgment of whether someone has made "enough" money from one's intellectual property was a factor in copyright law. Either there's a copyright infringement or there isn't. Rowling's wealth and success are irrelevant.

I remember seeing this comment in the earlier discussion some time back.

While wealth might not be a factor in whether there's an infringement or not, wealth is relevant to the theory of copyright law. Copyright doesn't exist to make people lots of money. It exists to provide incentive for people to create things they otherwise wouldn't have created.

In terms of economics, paying a dollar more than is required to provide that incentive, or providing a day more copyright, is inefficient. If the author would have created it without that extra little bit, then that extra little bit is a waste. Society is overpaying for creativity.

Of course, determining the exact amount of incentive in each case isn't feasible, so there will always be some overpaying. However, the point is that if copyright were making every rights holder wealthy, it would probably indicate that society was in general overpaying for its creativity. And, as in the case, if one rights holder becomes very wealthy, society is probably overpaying in that instance.

Would Rowling still have written her books if the work only got her half her current earnings? Probably. A quarter or a tenth? Still probable. Would she have written the books if copyright only lasted 15 years, instead of decades? Probably. Society is undoubtedly overpaying for this creativity.

Re:Wealth is relevant, at least in theory

[LateArthurDent]

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.

Re:Wealth is relevant, at least in theory

[Captain Sarcastic]

Her wealth has nothing to do with whether it's a copyright infringement. It has everything to do with her being greedy and selfish and forgetting from whence she came.

And this relates to the lawsuit how?

I mean, I understand that you don't like Ms. Rowling, because you see her as a money-grubbing miser who is trying to milk as much out of her work as possible. Fine with me.

However, your arguments are starting to sound as though you wish that there were be a legal mechanism to say, "OK, you've made enough money from this, now shut up and let us have at it."

Your posts are usually cogent on other areas... actually, your posts are unusually cogent in other areas, and I admire your expertise in copyright law. Could you give this topic a rest?

Re:Wealth is relevant, at least in theory

[NewYorkCountryLawyer]

Fair enough. Sorry if I goofed on the context.

No problem. I understand. You're a purist, you don't like your issues blended. :)