“Previously on…” from the New York Times:
Ms. Rowling and Warner Brothers Entertainment […] are suing Mr. Vander Ark’s publisher, RDR Books, based in Michigan, to stop publication of the Harry Potter Lexicon. Ms. Rowling contends in the lawsuit that the lexicon copies large chunks of material from her own books while adding little new information and insight.
From the questioning of Vander Ark:
PLAINTIFF’S ATTORNEY: So isn’t it true that you’re not limiting sales of the Lexicon to people who read all seven Harry Potter books, right?
DEFENSE ATTORNEY: Your Honor, that’s a preposterous question.
THE COURT: Objection sustained.
Damn, I wish that questions could have been blocked due to being preposterous at the most recent Obama/Clinton debate.
(Links to trial transcripts here.)
* * *
That aside, the heart of the issue is gotten at in a pre-lawsuit letter sent by Rowling’s lawyers to the Lexicon folks:
The book purports to contain an alphabetical glossary of fictional facts from the Potter books, presumably with little or no independent analysis or commentary, e.g. hundreds of alphabetically arranged entries on Rowling’s characters, themes, settings, motifs, spells, positions, etc.
Although I’m a fan of the Potter books, I think Rowling should lose her lawsuit.
But the charts! The pretty, pretty charts! http://www.the-leaky-cauldron.org/docs/oppositiontomotion410.pdf (see last two pages of document). And yes, I realize I just linked to a Harry Potter fan site…
“Although I’m a fan of the Potter books, I think Rowling should lose her lawsuit.”
Really? Why?
Because those of us who don’t have the time to read all 7 books would like to be able to talk to our children who HAVE without reading all 7 of the books, all of which are thicker than should be for any book of that genre. Said optimal thickness being a 3 by 5 index card, 16 point type.
That’s a reason to hope she will lose. It’s not a reason why she should.
Rowling spent nearly twenty years creating this fantasy world, it’s a trademarked product, it seems the law is on her side. Sure there’s fair use, but an entire encyclopedia seems, well, extreme. So I think she should win.
And parents who want to talk to their children about their interests should take them seriously by engaging them on their own terms. The books are not hard to read. They’re actually quite good.
FCH, while your answer is amusing to those of us who either have kids, are fans of the books, or both, it’s probably not that amusing to people who write for a living.
it’s true that the big corporate publishing houses have gone way overboard in crying copyright infringement right and left. it’s also true that intellectual property of authors needs to be protected from piracy. it’s immaterial that rowling is richer than gold plated dookie – it’s not about her, it’s about legal precedent. if i publish a book about the martian weevil people, i don’t want some other joker thinking they can publish the martian weevil people encyclopedia without my permission, copying and pasting all of my creative work and profiting from it without dispensing any royalties to me. i know this is outright blasphemy to a lot of “information wants to be free” folks, but to them i have this rejoinder: sandwiches don’t want to be free, my electric bill doesn’t want to be free, my kid’s pediatrician doesn’t want to be free. much as i would like them to be – right now, i need to get paid.
Well, that and there’s rumors that Rawlings wants to print her own Harry Potter Encyclopedia. I’m with Rawlings on this one: I’m all for fair use, but this goes beyond “Educational purposes”.
I think Rowling should lose because a concordance or an encyclopedia, in alphabetical order, of an already existing work is a substantively new work. Readers cannot sit and read a Lexicon as a substitute for the novels, nor are the novels an adequate substitute for someone who just wants to look up Mrs. Norris in an encyclopedia.
If they can’t be substituted for each other, they’re different works, in my view. The Lexicon is a new work about Rowling’s work, just as a book of literary criticism about the Potterverse would be a new work about Rowling’s work. And I don’t think being the original creator should empower you to legally ban publication of work about your work.
(In my ideal world, there might be some sort of ” mandatory licensing” law, in which anyone making a profit off of new works derived from Joan Creator’s works must pay a royalty to Joan, but Joan has no right to prevent derivative works from being published. That would protect both Joan Creator’s right to make some money, and the right of free speech. But if we have to choose one or the other, I’d choose free speech.)
r@d@r writes:
FCH, while your answer is amusing to those of us who either have kids, are fans of the books, or both, it’s probably not that amusing to people who write for a living.
So … write thinner books ;)
But seriously, an encyclopedia like that is not going to keep people from buying the books. Back in the ’70s I bought every Star Trek “technical manual” I could find (no comments, please) and then went on to watch all the movies, including “Save The Whales”.
it’s true that the big corporate publishing houses have gone way overboard in crying copyright infringement right and left. it’s also true that intellectual property of authors needs to be protected from piracy.
Copyright law isn’t designed to protect information that is published from being folded, spindled and mutilated, it’s designed to protect embodiments or performances. If she has trademarks on the names and terms, that’s one thing, but I’m unclear on how trademark law would work here — I’m much more familiar with copyright, patent and trade secret law. She didn’t invent the fantasy wizards and warlocks genre, and her major contribution to the art is that she wrote book on a level kids can read.
If the encyclopedia really is just a cut and paste job, and not an explanation of who the hell Voldermort is, I’m sure she will prevail. But if the entry for “Voldermort” involves original work, and not just cuts and pastes, Rowlings should lose (trademark law, notwithstanding) her case.
i know this is outright blasphemy to a lot of “information wants to be free” folks, but to them i have this rejoinder: sandwiches don’t want to be free, my electric bill doesn’t want to be free, my kid’s pediatrician doesn’t want to be free. much as i would like them to be – right now, i need to get paid.
Rowlings can still sell more Potter books. Have at it. If Trek, which was insanely popular with the same age group 40 years ago, is any indication, she’ll soon be richer than diamond encrusted gold dookie floating in an ocean of light sweet crude.
“Save The Whales”
That one was better than “Planet of the Hippies”. And I bought all the “technical manuals” too. Hell, I even played the PBM game.
Amp is correct. Publishing a concordance or a reference book based on an existing text is perfectly legitimate. Rowling’s lawyers gave her a bum steer, here. She’d have been better off promoting this kind of derivative work. (Which, I guess, by suing, she kind of is doing.)
My understanding is that a lot of the original content, essays and such, on the Lexicon was submitted by other users and thus is not in the SVA encyclopedia.
Supposedly, there is also a great deal of direct quotation as well.
From what I understand–there was an article on this in the NY Times the other day–Rowling’s claim is that there is too much direct quotation, and if her claim can be substantiated as plausible, then it is not unreasonable for her to have gone to court over it. Whether or not I think she should win is another question; as a writer–though one whose works will never be subject to the kind of attention Rowling’s has gotten–my initial impulse is to be sympathetic to her, but that impulse could be wrong.
Richard, I don’t accept that “extensive quoting” makes it impossible for a work to be a new work.
Suppose I create a poem about the banality of US culture which consists 100% — every word — of quotations from TV Guide. Should the owner of TV Guide be able to sue me and win?
I do not believe myself qualified to judge whether the author is in the right or wrong in this issue. As far as I am concerned, this depends on the amount of original work in the encyclopedia, and I am not going to spend the time to determine how much of it there is. People working in that court are paid for it, let them do it.
Amp, that’s a fair question, though I think the nature of the relationship between the found poem you imagine and TV Guide is sufficiently different from the relationship between the encyclopedia and the Potter books that your example muddies your point a bit for me. I will have to give this more thought. Right now, I have to get back to school-related work.
Ah, but that would be a ‘transformative work’, would it not? JKR did not sue over the many books of essays, theories, and predictions for future books that were published.
Richard, I didn’t mean for my “TV Guide Poem” to be a complete argument in favor of the Lexicon; I just wanted to establish the principal that just because a work is mostly or entirely made up of quotes does not, in and of itself, prove that it’s a copyright violation. (Or that it should be one.)
Snowe:
My point with that example was that a work could be effectively a new work, even if it is made up entirely of quotes from an already-existing work. It seems to me that you’re agreeing with that general point.
Moving from the general point to the specific case of the Potter Lexicon: I agree that the Lexicon is a less clear-cut case than “TV Guide Poem.” But my point was that just saying “the Lexicon uses a lot of direct quotes” doesn’t necessarily prove that its is, or it should be, seen as theft of copyright.
FCH
…
Wow, talk about yer meta-texts. First Amp goes –
So the act of presenting existing text in a new context would make it a new text? Deep.
Then FCH goes –
But then Tom Nolan goes –
So, like, when Nolan presents FCH’s remarks in a new context, do they become a new text? And by quoting the remark without comment, was that a comment?
This is getting too much for me, man….
Back in the ’70s I bought every Star Trek “technical manual” I could find (no comments, please) and then went on to watch all the movies, including “Save The Whales”.
and i’m pretty sure universal got a piece of all that. maybe even gene roddenberry.
Publishing a concordance or a reference book based on an existing text is perfectly legitimate.
I work in copyright compliance (not as counsel, just admin) and I’m not familiar with this precedent – do you have a link? Thanks.
Suppose I create a poem about the banality of US culture which consists 100% — every word — of quotations from TV Guide. Should the owner of TV Guide be able to sue me and win?
17. U.S.C. 107: Fair Use – […]work is “not an infringement of copyright” if it is used “for purposes such as criticism […]” I think it falls within bounds of the Four Factors… ;)
As for a compendium of quotes, it’s all about quantity. And I think it’s definitely pertinent whether or not Rowling’s publisher had plans to release their own encyclopedia.
I’m curious what Warner Bros. [who did the movies] have to say about all this.
I’m just from a different century I guess. I can’t imagine being a fan of a series of books, and then trying to make money off of material based on the characters in the books, without getting permission from the author of those books. The whole concept is foreign to me. It’s not “homage” and it doesn’t strengthen the commercial viability of the property in some nebulous way. According to everything I know about intellectual properties, it’s pretty much just theft.
But, like I said, I’m from a different century – I may just be a dinosaur.
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Amp wrote:
No, but it is one criteria that can be and is used. If I understand it correctly, and I may not have this precisely right, this is what the principle of fair use is about, at least in part. If I quote someone in something I have written, there is a line that gets crossed somewhere between fair use and copyright infringement and one important way of defining that line is in terms of how much material I quote. That is certainly one of the things I teach my students when I teach them how to write research papers (and I am not arguing that the lexicon is the same thing as the research assignment I give in my class, though I can see similarities). So, there is “a lot” and then there is a lot, but there is also the question of the use to which that material is put. As someone said upthread: if the lexicon weaves the quotes into the author’s/editor’s original work/writing concerning the Potter books, then I think Rowling probably has less of a leg to stand on, though I do wonder how it is that the publisher of the Lexicon is not required to obtain permission from, and to pay, Rowling’s publisher for the privilege of using the content.
When The Silence Of Men was published, I had to paraphrase quotes that I originally used as epitaphs to poems and put the material in the endnotes because neither the publisher nor I had the money to pay the publishers of the original material for permission to use the quotes. (I don’t know that they would have charged me, but they would have had the right to, and I just didn’t want to delay publication of the book taking a chance on something that might not have gone my way.)
Also, as someone who was once paid the grand sum of $.10/word to write for an encyclopedia of Jewish folklore that was, for some reason, never published, I can tell you that the work I submitted–all of which was rewritten based on other encyclopedias and reference works so as not to violate copyright–was very carefully scrutinized to make sure that I was not quoting too much from these other sources.
I will say again that I am not sure that Rowling should win her case; I don’t have enough information. I do, however, sympathize with her wanting to put the question before a court, assuming that the amount of material quoted in the lexicon is as extensive as the charts linked to in the first comment indicate.
I distinctly remember posting an empty comment to usenet in response to someone who said “no comments please”, or words to that effect. Assuming I could find it on Google (how do you search for nothing?) has Tom infringed my copyright?
whew, is it getting meta in here, or is it just me? ;)
I’m consulting m’learned friends. They’re sanguine.
r@d@r:
I assume you’re referencing Jurassic Park part 8, where dinosaurs are re-created in the 24th century? Because throughout most of history, up until fairly recently, the ability to freely copy information has been the norm.
Learn more at http://questioncopyright.org/
“…”
You have permission to quote the ellipsis in quotes above, but this sentence explaining that you can is only available, with permission, from my publisher.
This page and all pages linking to it are copyright 2008 by Robert Hayes, and you are all in violation of my rights. Shoo!
This is my understanding, based on “Clean-Room” software development I did back in the 1990’s. My employer was trying to avoid being sued by someone with enough money that all their dookie is diamond encrusted and gold plated.
I don’t think it matters that JKR might, some day, when the Moon is in Uranus and Jupiter is invaded by giant black domino shaped objects, write a lexicon has any bearing on the matter. Until she writes that lexicon, writing a lexicon isn’t a derivative work of a non-existent lexicon. It’s a new creative work.
If Vander Ark doesn’t copy any actual text — and he’d be a fool if he did, because there is case law that says too many little quotes is no longer covered by “Fair Use”, while some smaller number is — I think the only remaining theory is “Derivative Work”, and a lexicon is a different type of work than a fantasy fiction novel, movie, action figure, lunch box or sleepwear.
However, even if Rowlings DOES, some day, produce a lexicon, the class of work called “lexicons” isn’t patented or trademarked or any other form of protection. It’s a TYPE of creative work, much like “Bad Romance Novel” is a type of creative work and “Overdone Sequel” is a type of creative work.
So, the question is, what legal theory is being invoked? Seeing the filings would be instructive.
(And now I’ve read the opposition motion to the motion to dismiss certain pieces of evidence.)
The filing I did see — the one with the pretty charts — only mentions “Word Counts”, it doesn’t say how long the word sequences were. “Evil wizard”, even if it appears in JKR’s work, is not copyrightable. “Big meanie evil wizard” isn’t either. For example, “A Quidditch field is a large outdoor stadium in which students fly on their brooms while chasing a flying ball thingy” may contain phrases that are in the books, but Yankee Stadium is also a “large outdoor stadium” where people “chase” a “flying ball”. Difference being, they catch the ball more often in Yankee Stadium.
At this point I’m leaning more strongly in favor of Vander Ark.
I’ll also point out that if this case goes against Vander Ark it means that “lexicon” is essentially a dead form of art. And I can’t see the court ruling that people can’t write lexicons, indices, concordances, or other such works. And then there is the issue of actual damages, which, if history is any guide, could well be negative as readers of the lexicon purchase the original books now that they have an “index” they can use to help understand them better.
I wouldn’t say that this case going against Vander Ark would mean that the lexicon is dead as an art form. I think it means that if you want to make a lexicon of some other author’s copyrighted work you’d have to pay them a royalty. That doesn’t kill the art form.
And I expect this to be the ultimate outcome here. If Vander Ark loses, they’d face the choice between 1) cutting in Rowling/Scolastica/et al. for a slice of the proceeds from publishing the lexicon, or 2) not publishing. Rowling would have the option of publishing her own lexicon in the face of all the bad will and bad publicity she will have generated among fans, or not.
And if Vander Ark wins, they’d still face the choice between cutting in Rowling/Scolastica/et al. for a slice of the proceeds AND getting Rowling’s blessing AND getting authorization to use illustrations from the books, etc., or publishing without it, running the risk of offending a segment of the market that remains loyal to Rowling, and of competing against a forthcoming lexicon from Scholastic that will enjoy Rowling’s blessings, fuller quotations, illustrations from the books/movies, etc.
Before litigation, each side has a powerful economic incentive to do a deal, but also had a powerful economic incentive NOT to do a deal: that is, they had the hope of prevailing in court. After litigation – regardless of outcome – each side still has an incentive to do a deal, but will then much less economic incentive to refuse. The outcome of the case will influence the terms of the deal, but I expect a deal regardless of outcome. (Compare to the Coase Theorem: Clear property rights permit socially optimal arrangements, regardless of who holds those rights; unclear property rights impede transactions, and therefore impede optimal arrangements.)
Of course, I can’t rule out the possibility that people would act counter to their economic incentive. In particular, because the lexicon’s author initially created the lexicon as a labor of love, and is feeling pretty badly treated now, he may no longer be willing to work with Rowling under any circumstances. (Compare to the incentives Clinton and Obama have to name each other as running mates vs. the actual inclination they have to campaign together.)
Actually, most polls on fansites are strongly in her favor. A lot of fans don’t like the idea of paying for a lesser version of what they can get for free on the site. They don’t like the way that SVA has possibly endangered fansites and fanwork of all types.
Also, in my opinion, the Lexicon is eclipsed by the Harry Potter wiki, which is much easier to navigate. If the SVA Lexicon is published, I don’t think it will sell very well.
Interestingly enough, I have just such a book at home about the universe of the Lord of the Rings/Hobbit books. It goes into details about the characters, races, languages, battles, etc. I’ll have to grab it and see if it was licensed through the Tolkein estate or not.
It’s my (perhaps mistaken) impression that Rowling and Warners doesn’t want to give permission for the Lexicon to be printed at all. They don’t want a cut; they want it not to be published in book form.
Ah, I’d forgotton about that possibility. But that doesn’t mean the death of lexicons as an art form, it just means that Rowling gets a higher level of protection of her intellectual property. I’m not going to get into what level is appropriate, though.
RonF writes:
There would have to be a form of copyright protection which extended from a work of one kind, to a “lexicon” in order for royalties to be due. Which means that there is no legal right to produce a lexicon (or diction or index or concordance or …) as a new creative work. I can’t see the court ruling that way — unless Vander Ark did nothing more than cut and paste.
What is interesting in all the things I read is that Vander Ark may have a counter-claim (IANAL) against Rowling since she admits to using Vander Ark’s website as a resource. I think an even more damning piece of information is that Rowling gave Vander Ark some kind of “award” for his website, and apparently the two of them had extensive communication over the years, much of which involved him publishing this growing body of reference material.
At any rate, interesting stuff.
Amp, If I remember correctly from the article I read, Rowling is perfectly happy to let the lexicon be published, with changes sufficient to address her concerns. (Whether her concerns are reasonable or not is still up for grabs, I know; I’m just saying that from what I remember she is not, or is no longer, trying to block publication wholesale.)
“Because those of us who don’t have the time to read all 7 books would like to be able to talk to our children who HAVE without reading all 7 of the books, all of which are thicker than should be for any book of that genre. Said optimal thickness being a 3 by 5 index card, 16 point type.”
Well, when I was in physiotherapy in 2002, I heard from many of the (female) workers there that they recommended the books. They didn’t seem to think it was a children’s book. It seems to be of lesser interests to adult men than to adult women though. I’ve not been particularly interested in the books, though I saw the first 4 movies.
Nitpicking on my part that, while I consider innate ability as a concept to be okay, I don’t consider innate uniqueness of ability – and as such unattainable by the common of mortals – to be valid.
In short, I don’t consider that the ability to use magic, as something that is reserved for ‘the chosen’ is a concept I like. If magic exists in real life, then there is no bloodline that makes it so you can, or else you can’t. It means you develop abilities and some people might be better at it, but nobody is cut-off from it.
Just like everyone* can run, and some people can run better, either due to genetic or training (most likely both), but everyone can still run, not only the chosen ones.
*I realized I may have been ableist with that last comment and do not mean to say anything against people who have never had usage of their legs, or lost it later in life. It is just meant as a generalization.
Richard, I think that the article you read was probably a little misleading.
A number of newspapers have quoted Rowling saying that she “never, ever once wanted to stop Mr. Vander Ark doing his own guide, never.”
However, although the Judge in this case repeatedly urged both parties to try to reach a settlement, they did not in fact do so. Rowling and Warner Bros. are still pushing to enjoin the book.
In fact, that particular line of Rowling’s — coming as it did at the very end of a three-day trial over the course of which the parties had repeatedly refused to settle — provoked a minor explosion of annoyance from Judge Patterson, who labeled the entire line of questioning “inappropriate,” rather irritably repeated his belief that the case would be best handled out of court, and then chastised Rowling’s attorney for, in effect, trying to talk the compromise talk without walking the compromise walk.
The transcripts are rather a fascinating read, really.
At least, they are to a sad geek like me.
Ouch. Orson Scott Card gets up in Rowling’s face on this one.
Wow, what a terrible article from Scott Card.
Card says that Rowling is a hypocrite because she is suing the Lexicon despite borrwing from other authors herself. But his examples are 1) She uses iconic elements of fantasy adventure stories that Card himself, like hundreds of other writers, has also used, and 2) the Stouffer lawsuit. What Card doesn’t tell his readers is that Stouffer forged documents in order to bolster her claim that Rowling plagiarized her, and the court found that Rowling hadn’t plagiarized. (Read the judge’s ruling.)
Neither of those examples is at all the same as the Lexicon; the situations are too dissimilar to sustain the hypocrisy argument Scott Card is making.
There’s also something very disturbing about Card’s gleeful tone as he describes the future of humiliation and failure that he believes is in store for Rowling, who he describes as exhibiting “evil-witch” behavior. I don’t know what motivates Card’s mean-spirited tone, but it feels ugly.
I agree with Card that the outcome of the case should be that “Publication of Lexicon will go on without any problem or prejudice, because it clearly falls within the copyright law’s provision for scholarly work, commentary, and review.” I don’t share his confidence that such will be the outcome of the case.
“Wow, what a terrible article from Scott Card.”
The redundancy…
If we’re going to start on the politically problematic elements of the Harry Potter books, we’ll be going for a long, long time.