An Appeal In the "Harry Potter Lexicon" Case 189
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."
imitation of J. K. Rowling's writing style... (Score:5, Interesting)
...(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... (Score:2, Interesting)
You can copy the style, but you can't copy the style and subject matter, and not clearly identify the true creator of the painting.
Re:imitation of J. K. Rowling's writing style... (Score:3, Interesting)
I guess that unless the law has changed, you can protect no such thing as "writing style" under any kind of "IP protection". Even words, which are still "quite concrete", IMO do not constitute a copyrightable work, unless you really made them up. Well, this might be just the case, but I still believe it is in public interest not to prohibit usage of *words*, no matter how exquisitely refined a word is from the creative point of view. I guess the best thing you can do is to apply for copious trademarks.
But - writing style? Do they really mean the thing that I would describe in my words as "a preference of particular words, collocations, phrases and syntactic structures specific to the author"? Ha ha. As I noticed, if there are people "ripping off someone's style", that someone is much more likely to be J. R. R. Tolkien, not a Joanne Rowling. Never seen Chris Tolkien or his old man complaining, though.
Re:imitation of J. K. Rowling's writing style... (Score:3, Interesting)
It's not even part of the law at all! Copying "style" is not covered by copyright or patent or any other intellectual property laws that I am aware of. This judge is effectively ruling based on his OPINION and isn't even considering the law. I have to wonder if that is even legal. I think judges get away with far too much.
Re:Wholesale copying (Score:3, Interesting)
Re:imitation of J. K. Rowling's writing style... (Score:5, Interesting)
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... (Score:2, Interesting)
Re:imitation of J. K. Rowling's writing style... (Score:5, Interesting)
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... (Score:3, Interesting)
I doubt you could make the argument that some chunk of source code or a research paper, shared and used by a very small minority of people, should be subject to the same rules as a cultural icon shared by over a hundred million people. At what point do corporations stand aside so that the PUBLIC can own their own culture? By the law as you (and many others) interpret it -- never. In my opinion, corporations can suck a big one on this -- they don't own culture, and that's what harry potter has become, whether JK Rowling and the Publishers of Doom want it that way or not.
Shall I give up telling my friends to "google the question"? Shall I avoid asking for a Kleenex? When my coworker does some hack job on a server, do I no longer get to call it a mickey mouse job? Seriously -- The book was designed by fans to serve as a companion to the books, quite ostensibly because after over ten thousand pages of text some people might be confused... That they quoted "large sections" of the text... how much material could they possibly have quoted compared to the original? 5%? 10%?
Please.
Re:imitation of J. K. Rowling's writing style... (Score:5, Interesting)
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:
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... (Score:4, Interesting)
But if you're going to publish a 'reference' book, you have to do so in such a way that it doesn't take on the qualities of a derivative work.
That's usually pretty easy.
If you take long quotes from a book and then insert additional explanatory text around them in the same style, you haven't created a guidebook, you've created a modified version of the source work./i>
I suppose that's possible. But it would be an odd guidebook. You're essentially describing Cliff's Notes with extensive paraphrasing of the story between long verbatim quotes. That's an abridgment, and it would be a derivative.
We can immediately see that the Lexicon in this case isn't like that; it's organized alphabetically, not chronologically. A lot of text about the man-eating Aardvark from book 4, followed by the entry for the magical Albatross from book 1 is hardly putting the original story back together out of snippets and paraphrases.
Please remember that the court did not find the defendant to have infringed on the derivative right; the Lexicon is not a derivative work. Rather, the issue was verbatim copying, and too much of it.
Re:imitation of J. K. Rowling's writing style... (Score:2, Interesting)
A long time ago when I was in an class someone told that all quotes had to be attributed and you could only quote one paragraph from each source, and you had to add some sort of original commentary tying the quotes together to make a point that was not present in any of them individually. Apparently in the US the rule of thumb is 300 words maximum and attribution. Now these are usually designed for safety rather than maximizing the amount you can quote. They are style rules too, so they vary from institution to institution. And actually it was ruled that quoting 300 words from Gerald Ford's biography, the crucial part about pardoning Nixon, was not fair use.
However if you've ever written anything formally you should have some idea about how to quote and not be at risk of a copyright lawsuit. You could probably work out a rule of thumb from research now.
From what I can tell this lexicon quoted way, way more than plausible fair use, didn't attribute and did not add original commentary. That's why the author was in trouble.