As a writer, historian, and researcher, I think this sets a dangerous precedent.
Yes, I understand that Ms. Rowling is planning on publishing her own Reference Work on the Harry Potter universe and this case is no doubt at least partially about ensuring that she gets as much cash as possible from that (ie without having to deal with “competition”), and that the “Lexicon” the court case centres over might not have had as much “commentary” or “original content” as Ms. Rowling and her lawyers might haved liked, but even so, this case seems more about making sure Ms. Rowling can get even more money than she already has and less about possible damage to her intellectual property, vis a vis the Harry Potterverse
The “Lexicon” author and the publishers raised a “Fair Use” defence, on the (IMHO perfectly reasonable) grounds that, well, basically, Reference Works tend to need to borrow heavily from the source material, especially when it’s a Reference Work on a fictional universe, and Harry Potter is a worldwide phenomenon, with several books and movies out, and the author (allegedly) is primarily motivated by his love of the series and desire to share and make information available to other fans. I’ll leave it to you to decide if you actually believe that.
To put it another way: There are countless Star Wars and Star Trek and X-Files (and almost any other popular TV, Movie, or book series) Reference Works out there; I really don’t see how the one the “Lexicon” author was planning on publishing is any different except that it was about Harry Potter and not, say, Buffy The Vampire Slayer.
I’ll be interested to see how it all turns out on appeal, but I for one and not comfortable with the implications if the decision is upheld.
It looks like the creator of the Lexicon has let the online version’s domain expire, but it was heavily based on the canon. As an example, here is the Google cache of the Lexicon’s profile of Severus Snape. Someone who is more familiar with the series may wish to correct me, but I see nothing new at all - all of the information appears to be taken from Rowling’s books.
In the past Rowling has made it quite clear that she supports fan works, including this one, as long as they comply with a few simple requests. One of those is not to sell them for profit. I don’t have much sympathy for fans who get in trouble for not playing nice in other people’s sandpits.
I’m pretty sure that everyone that writes for the Star Wars EU, even for things that are far less derivative than the Lexicon, gets permission from Lucas&Co beforehand. I’d assume that something similar applies for the other series you mentioned.
The people buying these fan works aren’t doing so in lieu of purchasing the Harry Potter novels; they’re doing so to complement those novels, specifically because of the value added by those works on top of what Rowling has already given them. Granted, they may purchase these fan works in lieu of a future Rowling-compiled lexicon or other Rowling projects, but why, simply because she wrote the novels, should she have an exclusive right to profit off of further works complementing those novels?
Because they’re her novels, her stories, her characters. She created them, she owns them. If you really want to write a lexicon featuring made-up stories and characters, you should invent your own. Otherwise you’re just a parasite living off the product of another’s ingenuity.
The decision is available online. It’s clear that the court weighed each fair use factor carefully, and the decision was that in sum these factors failed to weigh in favor of the defense. It’s well reasoned stuff and hard to argue with. Especially damning were:
The inconsistency of the encyclopedic value. Some very long entries had only a few citations to lead readers to the original books.
The unnecessarily widespread adoption of specific turns of phrase originally created by Rowling, often without quotation marks.
The use of information that came from other encyclopedia-like works instead of from the main novels. It did not benefit the defense that they repeated information that was already summarized for the reader in other copyrighted works.
What the court did make clear, though, was that the very fact of creating the encyclopedia was transformative, and therefore protected by fair use. If the authors of the work had just been more consistent in their citation procedures and more original in their descriptions, the case would’ve turned the other way.
In other words, this isn’t some tragic defeat for fair use. It was arguably the right decision. With that said:
Utter nonsense. The court specifically upheld the basic right of the defendants to create the Lexicon. The problem was simply that they were too inconsistent with their citations and too borrowsome with their expression.
They weren’t leeches just for wanting to write a “lexicon”. They just weren’t careful enough.
So, if I did a guide to spycraft based on the ideas of Robert Ludlum’s books, he should be entitled to some of the proceeds of my works, if they sell? Is he going to subsidise me up until the point I am making some money, if I suggest this idea, or is he more likely to steal this idea from me ?
Our modern idea of Santa Claus was invented by the Coca Cola company. Every time you tell your kid a Santa story, you are acting like a thieving vampire. If you want to tell a story so badly, make up your own Christmas legend.
If Rowling needed to make money off a reference like that so badly she could make here own. And if she made it faster or better, she might sell more copies. This is what we call competition, and it usually results in better products than monopolies.
I agree with the court’s decision. I haven’t read the Harry Potter books because my girlfriend keeps giving them to her friend who is a black hole when it comes to games, DVDs, books, etc.
When my gf read the lexicon on-line, she remarked how noticeably similar it was in style to Rowling – until she discovered, her words: “This is whole passages taken from the book.”
Indeed reading the opinion, the court found that whole entries had one or no citations. Reasonable people could argue against the amount of actual copying actually needed to accomplish the dissemination of information required of a lexicon/encyclopedia, but without actual or inconsistent citations, that is nothing but pure copying.
To answer your question, my opinion (not legal advice) I think Vander Ark would’ve been ok if he kept quotations to a minimum, properly cited them, and did his own analysis for the entry. I mean, 5 pages to describe Dumbledore? One can still add flair and creativity while presenting an objective account of the history of Dumbledore. From the decision, Vander Ark was taking whole turns of phrases, the very creative work that courts seek to protect. imo, the Lexicon should’ve been more like a wikipedia entry to firmly establish a fair use defense and defend an infringement claim.
To put it simply, the court found that this type of reference work is legitimate, but that Vander Ark’s extensive use of direct quotes and “close paraphrasing,” often of the most important passages of the original works killed the fair use argument.
And the court agreed with this.
The law is pretty clear in stating that the future market for the author’s own works is relevant.
What I don’t understand is that the court “permanently” blocked publication. Did the court really do that, or are reporters misunderstanding the decision? Or, does “permanently” mean something different in legal jargon than in ordinary language?
I’m wondering because copyright protection lasts only for a limited time. Once that protection is gone, even plagiarizing derivative work would not violate it. “Permanently” blocking publication would seem to be contrary to the copyright law. Do any lawyers want to clarify this?
And I just read Orson Scott Card’s commentary. He shows a complete lack of knowledge about copyright law. Not that I’m an expert, but he makes two basic mistakes.
First, copyright does not protect ideas. His whole comparison between his story and Rowlings has no bearing on copyright infringement. Ideas are protected by patent law. I’ve never heard of an author patenting their plot.
Second, copyright does not protect single words. His example of the word “ansible” has nothing to do with copyrights. If a single word is protected, it’s under trademark law. Some authors have trademarked words (“droid”, for example). But this wasn’t a trademark lawsuit.
Whatever point he was trying to make about the lawsuit is completely lost on me when he shows such ignorance of the basic laws.