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J. K. Rowling Wins $6,750 In Infringement Case
Posted by
kdawson
on Wed Sep 10, 2008 12:37 PM
from the slap-it-into-gringott's-bank dept.
from the slap-it-into-gringott's-bank dept.
NewYorkCountryLawyer writes "J. K. Rowling didn't make enough money on Harry Potter, so she had to make sure that the 'Harry Potter Lexicon' was shut down. After a trial in Manhattan in Warner Bros. v. RDR Books, she won, getting the judge to agree with her (and her friends at Warner Bros. Entertainment) that the 'Lexicon' did not qualify for fair use protection. In a 68-page decision (PDF) the judge concluded that the Lexicon did a little too much 'verbatim copying,' competed with Ms. Rowling's planned encyclopedia, and might compete with her exploitation of songs and poems from the Harry Potter books, although she never made any such claim in presenting her evidence. The judge awarded her $6,750 and granted her an injunction that would prevent the 'Lexicon' from seeing the light of day." Groklaw has an exhaustive discussion of the judgement.
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An Appeal In the "Harry Potter Lexicon" Case 189 comments
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."
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Poor Harry... (Score:4, Funny)
"Please, Ms. Rowling, I'm so tired and bleeding from both ends..."
"Is J.K. gonna have to choke a bitch? Get me my money!"
Re:Poor Harry... (Score:4, Insightful)
"Please, Ms. Rowling, I'm so tired and bleeding from both ends..."
"Is J.K. gonna have to choke a bitch? Get me my money!"
Whoosh! That went over my head.
Rowling, I believe is a billionaire. This isn't about money; it's about control. I'm guessing here, but I get the impression that these books mean much more to her than as something that got her out of poverty and made her one of the richest women in the World. Like many creative types, their creation is almost like a one of their children. And I'd be pretty pissed too if someone copied things from me and published them as their own work.
Parent
Re:Poor Harry... (Score:5, Interesting)
It's typical to show contempt for those artists you consider crass or over-commercialized, by depicting them as metaphorically abusing their creations.
For example, Bill Watterson (of Calvin and Hobbes) famously sent Berkeley Breathed (of Bloom County) a comic of Breathed laughing in a powerboat and whipping Opus the penguin, who was frantically shoveling sackfuls of cash into the outboard motor. (I wish I could find this online, it's in one of the collections of C&H.) I don't think he even bothered with Jim Davis, who is beyond parody as a commercial artist.
All artists have a connection to their work; some establish the connection primarily to make money. I don't know where J.K. stands.
Parent
Re:Poor Harry... (Score:5, Informative)
Copyright is not trademark. You don't have to defend copyright to keep it.
Parent
Re:Poor Harry... (Score:5, Interesting)
If Rowling had let this slide, then the next person who copies the character or settings wholesale, and tries to publish "Harry Potter" sequels, would have a valid defense that Rowling didn't protect the copyright for this guy, so she effectively has given up the copyright.
Not at all, copyright holds whether you "defend" it or not. In fact, current laws (via the Berne Convention) don't have any provision for "losing" copyright. You have to explicitly grant or give up rights.
The whole thing is absurd. A popular work always has companion works and fan works. The way to "stop" that is wreck your work so nobody cares about it. One good way to start is beating up on anybody who shows any appreciation for the work.
A lexicon may be a bit over the line but, really, it's not like there isn't "enough to go around". Does she think her "brand" is so weak, the competing lexicon is going to damage hers? That's silly. Fans will snap up her work over anybody's. The dilution would be negligible. I think the risk of souring fans on the work is greater. The RIAA, for example, has been slitting its own fool throat for years, hacking off the music consuming public. Unfortunately, we can't measure "would have been" so it could be shoved in their faces.
I think getting the thing off the market entirely is overkill. One wonders if she even tried trying to negotiate some kind of agreement on the lexicon.
Finally, and I think most important, copyright is not a "right". It's a grant from the public. We grant the creative (supposed to be) limited monopolies to, as the Founders put it, "encourage the useful arts and sciences". While copyrights and patents are allowed by the Constitution, they are not mandated. We could, if we wanted, via our elected representatives, abolish copyright and there's not a damn thing anybody could do to stop us. It's only too bad the public is ignorant of this fact, we could hold that threat over the heads of corporate beasts instead of being forced to genuflect to them.
My reaction to her being so greedy would be, "Fine, you wanna be a bitch? How 'bout we public domain Harry Potter? Hmmm?"
Parent
Re:Poor Harry... (Score:5, Insightful)
Shall I assume, then, that a starving first time author does have the protection of the law to prevent a clearly derivative 'lexicon' of their work?
Parent
Yes, you can give up your copyright (Score:5, Insightful)
Actually, there is no way to give up your copyright, either. At least, no easy way. That's why public domain licenses exist. You still own the copyright, but license it with no strings attached.
This is simply not true (at least in the U.S.). Please do not spread this misinformation.
First, there is an easy way to renounce your copyright and place a work in the public domain. You simply declare that that work is in the public domain; e.g., by a statement saying "This work is in the public domain."
But don't just take my word for it:
It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right. See Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960). Micro-Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998).
FYI, that is from Judge Kozinski's decision, not just some random judge.
The reason people claim it's impossible to do this is because they are afraid that someone, having placed something in the public domain, might come back and claim copyright to it, and that a court might uphold it. That may very well be an issue, but it certainly doesn't prevent you from renouncing your copyright - it simply means that some people might still refrain from using it.
Secondly, there's no such thing as a "public domain license." The very idea of the public domain means that the work is free for anyone to use in any way, without any license. You're obviously referring to copyright licenses like Creative Commons, which seek to provide an expansive, non-exclusive license along with a work. In these cases, you do still retain copyright, but this is not the same thing as the public domain.
For more information, visit http://cr.yp.to/publicdomain.html [cr.yp.to].
Parent
Re:Poor Harry... (Score:5, Insightful)
I agree. But the Lexicon, unlike most similar publications, failed to build upon the original works. WB/Rowling/Scholastic had no issue with the MuggleNet book, for instance, as it contained primarily analysis rather than just reprinting what Rowling had already written in slightly different wording.
Parent
Re:Poor Harry... (Score:5, Informative)
In the decision the judge wrote that though the Lexicon was a "work of love from the author" as you put it, the amount of verbatim copying was so pervasive as to disqualify it from Fair Use. I can't, for example, create Bob's Encyclopedia by directly quoting the majority of the Encyclopedia Britannica and pass it off as Fair Use even if I spend years doing it. In her NPR interview she mentioned other reference books she did not sue because they did not directly copy her work.
Also a part of Fair Use is the term "for public good". She did not object that much to the website because presenting information to the public served a public good. Trying to make money off of it, is not "for public good".
From what I read, it was RDR Books that was unwilling to negotiate and advised the Lexicon author not to negotiate. Even if your events are correct, if you wrote a series of books over 20 years, and someone came along and copied your work and tried to sell it, you wouldn't be bitchy about it? "Listen, it looks like I've copied your work. You want to discuss this. No? Bitch."
Parent
Re:Poor Harry... (Score:5, Informative)
This is not a fight between a Big Author and a Little Guy, this is a Scummy Company getting Bitchslapped.
Parent
Re:Poor Harry... (Score:5, Insightful)
Parent
What does her wealth have to do with it? (Score:5, Insightful)
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.
Re:What does her wealth have to do with it? (Score:5, Insightful)
Of course society's subjective judgment is important - if you don't make "enough" from your "intellectual property" you can't very well pay the lawyers to defend it, can you?
Parent
Re:What does her wealth have to do with it? (Score:5, Insightful)
Parent
Re:What does her wealth have to do with it? (Score:5, Insightful)
.
NewYorkCountryLawyer is also an idiot. Because he knows that kind of rabble rousing nonsense wouldn't be tolerated inside a courtroom.
The defendant lost because it was trivially easy to prove that his Lexicon was simply pasted together from passages in the books.
The thief remains a thief no matter how rich his victim.
Parent
Re:What does her wealth have to do with it? (Score:5, Insightful)
Kdawson is an idiot for not removing the personal bias from the blurb.
Point of order. Why is it wrong for a Slashdot post to express an opinion? Especially where the submitter provided the actual, 68-page, decision so that readers can make up their own mind.
Parent
Re:What does her wealth have to do with it? (Score:5, Funny)
"Why is it wrong for a Slashdot post to express an opinion?"
Because of the borg, you will be assimilated, resistance is futile. opinion must be shared by all, or not exist. there can be no bias, except that of the slashdrone. there must be no argument on what is right, for the slashdrones can not argue.
Parent
Re:What does her wealth have to do with it? (Score:5, Insightful)
First, because few people read the article (especially when it's the size of a small novel), so making a hugely biased summary distorts the facts. Second, it's supposed to be a news site. Maybe CNN and Fox don't worry about showing their bias, but that doesn't make it right, and it'd be nice if there were slightly higher standards here.
Also, in this case specifically, the "didn't make enough money" comment is just plain stupid, not to mention irrelevant. Is it legal to commit crimes against the wealthy now? Or maybe there's a new law saying you can only make so much money? What does it even mean to make too much money, and who are you to make the determination?
Not really what I expect from a highly over-paid lawyer. ;-)
Parent
Re:What does her wealth have to do with it? (Score:5, Informative)
/. is not, nor has it ever been a news site. It is a current events discussion forum with a tech slant.
Parent
Re:What does her wealth have to do with it? (Score:5, Informative)
Not only that, but Ms. Rowling explicitly said that she had no objection if the Lexicon continues to be published for free on the web.
It's really, really hard for me to get worked up over this.
Parent
Re:What does her wealth have to do with it? (Score:5, Insightful)
Exactly,
And the fact that the judgment wasn't for more that about 6,750 bucks goes to show that this was about principle, not the money.
The submission's author's bias, coupled with someone tagging the article with "greed" is just disgusting.
Mod Parent up +115
Parent
Re:What does her wealth have to do with it? (Score:5, Interesting)
They are far from irrelevant if you listen to those arguing for extending copyright laws. They cite the need of creators to earn a living from their work. Here [arstechnica.com] is EU Commissioner McCreevy arguing for term extension: "Copyright represents a moral right of the performer to control the use of his work and earn a living from his performance." Then it's perfectly reasonable to argue that this purpose of the law has already been fulfilled.
More importantly, the law is meant to serve us, not the other way around. We have every business talking about what the law should be, not only what it is. Laws are created and changed by our elected representatives. Limiting one's vision to the letter of the law is infantile and irresponsible for a citizen in a democracy.
Whether our representatives really represent us is a different matter. They certainly won't if we treat their actions - including legislation - as beyond criticism.
Parent
Re:What does her wealth have to do with it? (Score:5, Informative)
That is true when it comes to trademark protection and patent protection, but NOT copyright protection.
Parent
Re:What does her wealth have to do with it? (Score:5, Informative)
You're confusing 'standing to sue' with 'losing a trademark'.
In the U.S. (and probably in the U.K., too), if you become financially damaged in a given situation, and you knowingly allowed that situation to occur, you lose your standing to sue by failing to mitigate your own damages. This is called the 'doctrine of laches [wikipedia.org]' and is a form of estoppel.
Parent
Re:What does her wealth have to do with it? (Score:4, Insightful)
The ancillary to this is she could have given him tacit permission to make his lexicon, or worked out an exclusive licensing scheme. Of course, she's not always in control of who gets sued - just because she owns the IP doesn't mean she retains all publishing rights everywhere.
Parent
Re:What does her wealth have to do with it? (Score:5, Interesting)
Care to elaborate on why the judge screwed up? After reading the groklaw analysis, I'm having a hard time being outraged, as does the defendant's lawyer:
As much as I generally fawn on your analysis of copyright law, I'm finding myself disagreeing on this one. If groklaw is to believed, the defendant copied a lot, especially from the companion books. I don't see why reorganizing original details verbatim should be protected under fair use, but I'd be interested to read why you think they should - or why you don't think that is what the lexicon did.
Parent
Re:What does her wealth have to do with it? (Score:5, Insightful)
Obviously JK knows something you don't.
That said, there are serious fans of Dostoevsky that have respect
for Rowling's later novels. Although the first one is said to have
been written with her editors in mind.
You are probably in no position to comment on either author, or the
other 2.
Parent
Re:simple (Score:5, Funny)
Correct, they're baby goats.
Parent
Re:What does her wealth have to do with it? (Score:5, Insightful)
BWAHAHAHAHA! _wipes tear away_....you flunked English lit didn't you?
Parent
Hold your horses! (Score:5, Informative)
Whoa, whoa, whoa. Back up a moment! NewYorkCountryLawyer, I normally respect your posts, but this one is in need of some serious scrutiny.
As it happens, I was listening to the details of the case this morning on NPR. The problem with this specific book is not that it focuses on the Harry Potter series. The problem is that nearly every description was lifted from the books in a reasonably clear case of plagerism and/or derivitive works. Most reference books contain unique descriptions and commentary above and beyond the information presented in the source material. However, this particular lexicon made no effort to add such value over the books themselves.
In effect, it was merely a reorganization of J.K. Rowling's books into a dry reference. Something for which only the author has a legal right to grant.
THAT is why the judge found against the lexicon. And he did so with a strong warning that this book is an exception to the usually legal practice:
Re:Hold your horses! (Score:5, Insightful)
Parent
Re:Hold your horses! (Score:5, Informative)
Bingo. Coppying excerpts for purposes of ccommentary and criticism of a work is generally an acceptable practice that is considered fair use. Compiling a bunch of excerpts and publishing them as a lexicon without adding anything original and of value is a clear case of infringement.
Parent
Link to NPR Audio (Score:5, Informative)
http://www.npr.org/templates/story/story.php?storyId=94407484 [npr.org]
Parent
Re:Hold your horses! (Score:5, Insightful)
You hinged your argument on the wrong part of that sentence. "Dry reference" is not illegal, nor is it the judge's words. "Reorganized", however, IS illegal when we are speaking about copyrighted works. That is what the judge found against.
Hardly. The lexicon was read aloud in court, along with the source material it pulled from. The book was a clear case of plagiarism to the court. The publisher can feel free to appeal the decision, but I doubt they'll find much sympathy from an appeals judge.
The crux of your defense appears to be that a website previously existed that Rowling was happy with. Yet one has to be clear on one aspect here: There is a large gulf between publishing large pieces of someone's work for a no-cost reference and publishing someone else's work for profit. The defendant may have had a website that Rowling was happy with and thus not inclined to take legal action against (effectively giving approval for the use), but the book should have either added significantly more value over the source material OR have sought approval from the Rowling before attempting to go to press.
FWIW, PJ does an excellent job in reaching the same conclusion in her Groklaw post. Kudos to kdawson for adding that useful link to balance out an otherwise defamatory post.
Parent
Re:Hold your horses! (Score:5, Insightful)
You mean selected snippets of the Lexicon were read in order to trick the judge into believing that that was all there was. A clear logical fallacy, but common tactic in cases like this.
Did the defense not have a chance to demonstrate the unique descriptions and commentary above and beyond the information presented in the source material?
Parent
Re:Hold your horses! (Score:5, Insightful)
Of which the defense simply allowed without showing the substantive quantity of original text following the lifted text? Please. If any lawyer is that incompetent, he deserves to lose. Otherwise, for what purpose does legal defense exist?
I will reiterate: It is up to the author to decide how their work is used. Given that there was no charge to the readers of the site, and that web advertising rarely does more than defray operating costs, I can see how she would have given it a nod as an excellent fan reference.
That still conveys ZERO legal right to publish a work of plagiarism for profit. Only Rowling can make that decision. Which (if you read the decision) she attempted to convey in correspondence with the author and publisher. Correspondence that they chose to disregard.
You appear to think that one cannot plagiarize and yet be guilty of poor research at the same time. Allow me to disabuse you of that notion.
Let's say we have original text that looks like this: "Harry Potter's wand is a 14 inch long, magical instrument that is capable of some very powerful spells indeed! Yet Harry knows that its power is strong and that he should only use it only in dire situations."
Now let's create text that both plagiarizes and adds unsubstantiated claims to the text: "Harry Potter's wand is a 14 inch long, magical piece of wood that is capable of powerful hexes. Harry is a pacifist and thus feels that the power is strong and that he should only use it only in dire situations."
With those very simple changes, we have managed to achieve "getting it wrong" without adding sufficient research to be considered either for fair use or as an original work.
See, that is opinion. The facts presented in the case disagree with your opinion. Until someone demonstrates facts that are contrary to the judge's findings, then I'm afraid you have no leg to stand on.
--
As a personal note, I'd like to add that I have no stake in wanting Rowling to win or lose this case. I have been avoiding the Harry Potter series since its inception and am entirely turned off by its premise. My only interest in this situation is the matter of law and justice. The decision, while an obviously difficult one for the judge, appears to be correct according to everything I have seen about the case to date. Until someone proves otherwise, NewYorkCountryLawyer's post is reactionary and defamatory.
Parent
Re:Hold your horses! (Score:5, Informative)
And if you've ever looked at the Lexicon website, you know that it does precisely that.
The website does, yes. My understanding of the book though is that a lot of this was being driven by the publisher, not really the author of the Lexicon website. The publisher decided to strip out virtually all of the original material from the website in order to shorten the book. The Lexicon book, as opposed to the website, supposedly is almost entirely direct quotes from the Harry Potter books.
Parent
Just like the books... (Score:5, Funny)
Avada Kedavra!
Thanks, NewYorkCountryLawyer! (Score:5, Funny)
Re:Thanks, NewYorkCountryLawyer! (Score:5, Funny)
I noticed you accidently wrote at least one sentence that doesn't totally drip with contempt for this ruling.
Dammit. Sorry about that. I don't know how I let that slip through.
Parent
Re:Thanks, NewYorkCountryLawyer! (Score:5, Informative)
I am curious what is it that makes you so mad about this case.
The decision troubles me because it is flagrantly wrong, and -- because it is widely publicized -- will affect decisionmaking by creators and by publishers. I.e. it will have a 'chilling effect'.
Parent
Erm...What? (Score:5, Insightful)
Why the bad attitude in the submission post?
Someone was trying to release a commercial product whose premise was stealing content from an established work.
If they didn't get hit hard on copyright infringement, they'd get hit hard on trademark infringement, and rightly so.
Like it nor not, J. K. Rowling created the series, and decided to turn it into a commercial enterprise. It's well within her moral and legal rights to make sure a bunch of idiots don't cling to her coattails trying to milk dollars from a popular franchise that they have no legitimate claim to.
Re:Erm...What? (Score:5, Insightful)
Like it nor not, J. K. Rowling created the series, and decided to turn it into a commercial enterprise. It's well within her moral and legal rights to make sure a bunch of idiots don't cling to her coattails trying to milk dollars from a popular franchise that they have no legitimate claim to.
Well, the judge seems to think there's room for at least some idiots to cling to her coattails and milk dollars from a franchise they have no legitimate claim to. From Groklaw:
Notwithstanding 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. See Twin Peaks, 996 F.2d at 1377 ("The author of 'Twin Peaks' cannot preserve for itself the entire field of publishable works that wish to cash in on the 'Twin Peaks' phenomenon"). The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one.
I.e., no, it's not within her legal rights to prevent other people from making money off her work. There are reasons for why this case wasn't fair use, but that doesn't speak to the issue of people riding her wave as a whole.
Parent
Amazingly slanted summary (Score:5, Informative)
The lawsuit was to stop the publication of the book; it had nothing to do with the $6k.
Ok, let's look at this clearly (Score:5, Insightful)
For those of you defending this decision... (Score:5, Insightful)
actually read it, please. It's linked there. The judge relied on VERY fair-use unfriendly Second Circuit case law to come to his conclusion.
While the judge does admit that the author does not have control of these types of works, and the judge states that some types of works should be encouraged, the actual analysis of what would constitute transformation really does make the likelihood of such works being published less likely.
The judge left a pretty darned high threshold for what is considered "substantial" copying, and mentioned things like "fictional facts" and "paraphrasing" used to determine infringement.
In any rate, the ruling is vague enough in its analysis that I'm confident it will act as a bar towards publishing similar works, even when verbatim copying does not occur. I expect publishers and potential authors will be more reluctant to pursue such works in the future.
Goody for her, good for us (Score:5, Interesting)
There are fans out there who associate so deeply with their favorite writers that they mistake themselves as "owners" of the work. We see that all-too-often in the fan fiction arena.
Some writers and their publishers will jump all over these people with cease-and-desists. Viacom did that on fan-based Star Trek web sites for a time until CBS took control of the Original Series rights as well as (through their official magazine) lauding notable fan fiction such as the Star Trek: New Voyages episode project.
I'm a contributor on the Battlestar Wiki, which, as that lexicon web site did, serves as an unofficial encyclopedia on all aspects of the three Galactica series. We even have cast and crew visit and answer questions when they have time. It's a nice site. Plenty of equally great sites like it, too.
But the contributors on Battlestar Wiki, and Memory Alpha, and Wookieepedia know very well that we always enjoy what we do so long as we do not profit in any way, don't claim data as our own, or make derivative works (such as what that lexicon does). If any of these were done, the results that occurred for that lexicon would have been the same.
And I don't want to tick off NBC. They're grouchy.
The fact she only sued for a few thousand dollars shows she was out to prove her rights, not to soak the defendant. I'd be surprised if she bothers to collect.
hrm, biased much? (Score:5, Funny)
I'm reading this blurb like this, "Judges, in a remarkably stupid an uninformed decision, said that JK Rowlings can be a greedy bitch." Wow.
Re:Before the outrage starts... (Score:4, Funny)
Because she's got lots of money and that's not fair? Somebody better call a waaaaghmbulance for NewYorkCountryLawyer!
Parent
Re:I Fail to See... (Score:5, Interesting)
By the points: 1) I fail to see how JKR is "damaged" by this lexicon, unless it misrepresents her books, which there is no argument that ever did.
There was no damage, hence the $6750 statutory damages award.
2) For JKR to claim that this "discouraged" her from writing her own encyclopedia (and giving all that money to charity, which is supposed to melt our hearts in sympathy for her), appears spurious and said to bolster her case is simply because it is so hard to prove false. One is left to believe that JKR has killed a superior work because she fears she can't compete with a better author here.
One of the most bizarre arguments ever made, that it competed with something she was thinking of writing.
3) Despite the large amount of copying that weighed against the lexicon author I find his work transformative rather than mere cut & paste because: a) A huge amount of original research, organization, and sheer effort was put into its creation. b) How can you write any lexicon without referring directly to and quoting the original facts in their most original (hence correct) form? c) This is not intended to, nor would it ever be confused with, being a new, unauthorized HP novel.
Even the judge agreed it was mostly transformative. Only a lunatic would buy the 'lexicon' rather than the novel.
4) JKR is a very controlling author. You need only refer to her tightly demanded release dates for each new book and their draconian enforcement of early released copies for no apparent reason more than to bring additional fame to herself and allow her to read a couple chapters to a few children on the first night of official release.
Well her bringing such a mean-spirited lawsuit certainly supports that notion.
5) How could this have ever been infringement at all when it was never published due to prior restraint shown here? There should have been no statutory damages at all!
Should have been a defendant's verdict.
To me, when JKR put HP out in the world (and was rewarded more than handsomely for it) it became part of the world at large. It succeeded because we cared about it so much. To then say that only JKR can dictate who is allowed to comment on it afterwards def[ie]s logic, humanity, and reason.
That JKR found a judge to agree with her is equally sad.
Very.
Parent