According to the Wall Street Journal Law Blog, Judge Robert Patterson addressed the courtroom at the end of the second day of trial:
“I’m concerned that this case is more lawyer-driven than it is client-driven. The fair use people are on one side, and a large company is on the other side. . . . The parties ought to see if there’s not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair use doctrine is not clear.”
Judge Patterson reportedly added:
“I’m bringing it up now so you can think about it before you get into the rest of the case. Maybe it’s too late; maybe we’ve gone too far down the road. But a settlement is better than a lawsuit.”
In addition to Steve Vander Ark taking the witness stand earlier Tuesday, afternoon testimony centered around the impact a published version of website The Harry Potter Lexicon would have on any encyclopedia J.K. Rowling might write. While publishing expert Bruce Davis stated that such a book would likely have a small print run and do little to harm the potential market for a Rowling-penned book, Suzanne Murphy of Scholastic stated that while she finds Vander Ark’s lexicon to be of “poor quality”, she believes it “has potential to do quite well in the marketplace”.
NotTheHBP, you asked why I think SVA and RDR might have a better legal case, when it looks like about 90% or more of the Lexicon is basically lifted from the HP books.
Ginny, you asked me if I might fill you in on copyright law, and asked if it’s not a violation of the law if you don’t cite correctly or have enough original material.
akemi42 and Lawyer, among others, have already shared some excellent insights on these subjects; I’ll try to add what I can. Fellow reptiles, please correct me if I’m wrong, because I’m on shaky ground whenever I venture into the civil world. :)
First – to understand the law, it’s always important to understand what the law is intended to do. Copyright law is intended to protect creators, as patent law is intended to protect inventors. The government believes the arts are useful and that artists should be rewarded for their efforts so that they will continue producing art. JKR mentioned how this whole thing has made her feel disheartened and has affected her writing, and it’s for that very reason we have copyright law: we don’t want people to stop writing because others can steal their work and profit by it. The person who should profit most from a creation is, ideally, the creator.
But copyright law is not absolute, because the government does not want to stifle innovation. It’s a truism that there’s really no such thing as an original plot. Shakespeare, for example, lifted almost all his plays from other people’s stories or from history. But what he did isn’t considered intellectual theft; what he produced often had more merit than what inspired him. So within copyright itself, you have the tension between wanting to protect creators so that they’ll continue to create – but not to such a point that will prevent innovators from innovating.
Then you have a tension with other areas of the law – First Amendment law, for example. How do you resolve restrictions on writing and expression – for copyrights are government-enforced restrictions on writing and expression – with the guarantee of free speech and freedom of the press? The areas of the law that are the most difficult to deal with are the ones that are balancing acts between rights that most everyone agrees with in principle. What do you do when two rights we believe in conflict?
Answer: the courts balance several factors to decide which right takes precedence. According to the Fair Use Doctrine, in a case asserting violation of copyright, the judge must weigh four factors:
1) the purpose and character of the use of the copyrighted work (in this case, the purpose and character of the Lexicon’s use of the HP novels);
2) the nature of the copyrighted work (in this case, fictional novels);
3) what amount and proportion of the whole work was taken; and
4) the effect of the use on the potential market for or value of the copyrighted work.
If, after weighing these four factors, the judge decides that the use of the copyrighted work is a fair use, then it’s not a copyright violation. If the judge decides that the use is an unfair use, it is a copyright violation. The Fair Use Doctrine is intended to protect legitimate discussion, reference, commentary, etc. It’s a fact-driven inquiry – which is why I think it helps JKR that she has a factually sympathetic case – and it’s really easier if you look at it from a variety of examples, not just trying to understand the doctrine on its own.
Some examples:
1) I publish a book called Larry Hotter and the Fugitive of Alcatraz. The plot and the characters are basically identical to Harry Potter and the Prisoner of Azkaban; I’ve just changed around some names and moved the action to America. I make certain that I don’t lift verbatim passages from the original work.
Fair use? No. Under factor 3, it doesn’t matter that I didn’t steal Rowling’s language, because I stole a huge portion of the whole work. Under copyright law, this is scarcely better than taking Rowling’s novel verbatim and publishing it whole under my own name.
2) I write a review of Harry Potter and the Deathly Hallows for my local newspaper. In the review, I include a few direct quotations from the book, a plot summary, and my comments and evaluation of the work.
Fair use? Yes. Under factor 1, the nature of the use of the copyrighted work is to discuss the work. Under factor 2, my work (an article) is not the same as the copyrighted work (a fiction novel). Under factor 3, though I am commenting on the work as a whole, I am not taking a large portion of it. Under factor 4, depending on the nature of my review and how much the readers trust my judgment, it might inspire additional sales or deter additional sales, but my work is not a direct competitor with the copyrighted work.
3) I’m a college professor and I write a lengthy scholarly article on Tom Riddle, using many verbatim passages from CoS and HBP to support my points. The article is critical of Rowling’s decision to make Riddle more of a powerhungry sociopath than a bright, charming, talented boy whose ambition and bitter life experience destroyed his soul. I say that in COS, Riddle appeared to be more of the latter, though there were hints of the former. In HBP, however, he is mostly the latter. I say that the story as a whole would have been more compelling, and the parallels between Riddle and Harry more pronounced, if Riddle had started out in pretty much the same place as Harry but came to let the defining characteristic of his house (ambition) consume him in a negative way, while Harry let the defining characteristic of his house (courage) shape him in a positive way.
Fair use? Yes. Though I’m using major portions of Rowling’s work to make my points, and though my points may deter prospective readers from reading the book and thus have a negative impact on the market, I’m not trying to pass off the work as my own.
4) I’m fascinated by the characters of Sirius and Regulus Black and want to write a book about their relationship. I’m aware, however, that borrowing Rowling’s characters and writing my own book about them for profit would be unethical, not to mention illegal. So I think about what appeals to me about Sirius, Regulus, and their relationship. Turns out it has little to do with them being wizards, or great players in the wars against Voldemort, or anything like that. What really appeals to me is a story about two aristocratic brothers – the brilliant, charming, rebellious, hotheaded heir, and the dutiful, obedient, envious but ultimately loving younger brother. The end work is a book about two brothers in Revolutionary France; the older one defies his aristocratic, royalist family and sides with the Republicans; the younger one fights faithfully for the crown. In the end, both are disillusioned with their causes; together, they save their parents from the guillotine, and the entire family heads to America to start a new life.
Fair use? Yes. I was both inspired and influenced by Rowling, but my work, though a fictional novel, is meant neither to compete with nor replace hers.
5) I want to write a book about the relationship between Lily Evans and Severus Snape. Other than a very few scenes based on the ones that appear in DH, the plot and the language are my own. I want to be sure to give credit where credit is due, and so I dedicate the work to J.K. Rowling, encourage everyone to read the originals, and make it clear that I’m just a very enthusiastic fan who wanted to tell that part of the story that didn’t really get told.
Fair use? Probably not. However much I credit Rowling, however much I cite her, however much I make clear that the scene where Lily and Severus meet was written mostly by her, I’ve still appropriated her property and tried to make it my own.
6) I read a nonfiction book about the history of alchemy that includes a chapter on the philosopher’s stone. The author of the book argues that the philosopher’s stone really did exist and that it’s been hidden to protect it from powerhungry evildoers. He provides evidence of this fact. Inspired by this argument, I write a fiction book about a heroic boy trying to protect the philosopher’s stone from an evil tyrant seeking immortality. The author of the nonfiction book sues me, claiming I stole his idea.
Fair use? Yes. This is similar, in principle, to the lawsuit over the Da Vinci Code a few years ago. You can’t copyright a fact, you can’t copyright evidence. If you write nonfiction, you are copyrighting your expression of the facts, but you can never copyright the facts themselves.
Leaving the hypotheticals, let’s come to this case, and evaluate it under the four factors.
(1) Purpose and character of SVA’s use. He has taken information from Rowling’s books and arranged it into what is basically an encyclopedia. It seems much of the language is taken verbatim from the HP books. The purpose is not to compete with the Harry Potter books, or to replace them, but to supplement them—to make, basically, an easy and comprehensive reference guide. This works in SVA’s favor. One of the primary purposes of copyright law is to protect the creator from unfair competition. But the Lexicon, if anything, promotes the original.
(2) Nature of the copyrighted work. A reference guide. Again, this works in SVA’s favor. It is not a fictional work intended to compete or replace, nor is he trying to pass of JKR’s work as his own.
(3) Amount and proportion of whole work taken. Apparently substantial. SVA seems to have copied a great deal of material rather than just synthesized it, as reference works usually do. This works in JKR’s favor.
(4)Effect of the use on market and value. To me, this is one of the more interesting issues, because this is where talk of the Scottish Book has come into play. But the work the judge would be comparing the Lexicon to would not be the Scottish Book, it would be the existing HP books. I don’t think publishing the Lexicon will have any effect at all on the market for the series or its value. I also don’t think, realistically, that it will have an impact on the Scottish Book (other than the fact that it might dishearten JKR and lead to her not publishing the Scottish Book). But under copyright law as it’s written now – at least, in my understanding of it – the comparison has to be between works that already exist. You can’t copyright an idea for a book. I think this factor works generally in favor of SVA.
I’m not saying that because I like that. I have a lot of sympathy for JKR’s point of view. But, looking at the Fair Use Doctrine, I’d say three of the four factors support SVA.
Does that mean that the judge agrees with me? No. Even if the judge did agree with me, does that mean he has to decide in favor of SVA? No. This isn’t a mathematical equation. Factor 3 alone is often enough for there to be a copyright violation, if the borrowing is substantial.
What this does say to me is that both parties have a fair shot at winning, and I think the judge believes there are compelling arguments on both sides.
As I said, I’m not a copyright lawyer. There are people in the world with far more knowledge and ability in this subject than I; many of them are involved in this case. The judge is an expert on the law, and even he finds it muddled, especially when you throw in the Scottish Book and whether or not that’s something that can even be properly considered, since it’s not yet a copyrighted work.
I like this judge too. I think the bulk of the conflict is coming from Warner and from RDR. If you have been following the case, you can see that SteveV himself has not acted with any ill-will or ill-intent.
I think the best solution all-round would be for JKR to PERSONALLY buy the HP Lexicon, and Warner to buy the rights to the printed book. That way, JKR could blend a bulk of the Lexicon into her own book, and that would remove a lot of the tedious portion of the task, and allow her to concentrate on the more personal and intimate knowledge that only she has.
For many years I have assumed that when it came time for JKR to assemble an encyclopedia of her world, she would enlist SteveV’s help since he has already done much of the work. I would still like to see this happen.
Further, I’m not convinced that JKR/Warner can win. Unauthorized ‘reference works’ have generally been allowed. In view of the fact that the case could go either way, I think a settlement is in everyone’s best interest. If JKR/Warner simply bought the Lexicon and the book, then JKR would own all the material including what I believe is SteveV’s own unique creations.
If this can be settled, I would still be thrilled if SteveV were allowed to join JKR in compiling and publishing her own reference, and given his experience and knowledge, I think SteveV would be a very valuable asset in the task.
If JKR/Warner bought out the Lexicon, that would allow everyone, including Leaky and the Lexicon, to rejoin on good terms with no hard feelings. I’m really disappointed that this has gone as far as it has. Again, I blame corporate Warner far more than I blame JKR or SteveV.
I think my suggestion provides the best result for all. Currently, as I see it, the only advantage JKR/Warner have is unlimited money to fight this in court until RDR simply runs out of resources.
Posted by Bluewizard (Steve) on April 16, 2008, 04:54 PM
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sighs Apologies for the bold print. If it’s not one tagging mistake, it’s another.
for the record, lest you think I am SteveV secretly making his case, I am NOT SteveV. I am SteveB from Minnesota.
I applaud those who support JKR, but I support the Law above fan adoration. I trust the law, and fair and reasonable interpretations in this matter. But I am disappointed by those who blindly choose sides out of fan adoration rather than a regard for the law or the facts. Even this judge said the facts are not crystal clear, and that this case, could go either way.
In the case of Warner vs RDR, I could care less.
But, in the case of JKR vs SteveV, I confess myself heartbroken at this sad turn of events.
Posted by Bluewizard (Steve) on April 16, 2008, 05:06 PM
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Elizabeth, as one who is following the story as an ‘impartial observer’ (er, I don’t count myself as a fan), I am indebted to you for your post, which sheds a whole lot of light on the subject! ;)
My question is: Why would any sensible person (a) buy Steve’s book when his website (and others) can be read for free, and (b) why buy this book instead of waiting for Rowling’s to come out? I think it’s nothing but consumeristic and irrational to buy Vander Ark’s.
Bluewizard, I’m with you on this one (I posted a similar comment on earlier coverage of the trial ;) ).
It would be a win-win situation. Rowling retains control, assures the quality and she can still ensure that her charitable organisations will profit. You HP fans would go mad for the official Encyclopaedia! :P
I have even detected a little love for Vander Ark and his Lexicon since my original post (hey, just a little).
I really can’t imagine why anyone would want to buy the book anyhow. Perhaps people who have only watched the movies and not read the books, but if It has no new or background material besides what Jo has already put in her books then most of us HAVE all that info in the books we own. Who cares if it is a labor of love…come up with your own ideas or opinions, don’t make money on tail end of someones hard work. IT IS JO’S WORK…She has a right to do this and she should NOT settle. As for the MEDIA…because they’re so reliable in every other area of reporting…Grrr Sad that they are trying to make Jo look bad, but it is nothing new that they put a little “twist” on the news, and most people don’t have any idea that they are being fed a line of garbage. Just an opinion!
I have to say that the Leaky bias is finally showing itself. I came to your website because you’ve had the most complete information on the trial so far. Yesterday you printed JK Rowling’s testimony in great detail, so I was expecting that SVA’s testimony would receive the same attention. Alas, all I find is this:
“In addition to Steve Vander Ark taking the witness stand earlier Tuesday, afternoon testimony centered around the impact a published version of website The Harry Potter Lexicon would have on any encyclopedia J.K. Rowling might write.”
Shame on you. You’re about as impartial as a Michael Moore “documentary”.
Melissa was forced to recuse herself from the case because an e-mail to her was brought up in court. Therefore, her notes from Day 2 could not be used. She told us this in the comments in an earlier post and warned us that there would not be equal space given to SVA’s words because she would no longer be allowed to post her notes. If the said e-mail had been brought up on Day 1, Melissa wouldn’t have been allowed to use her notes from that day either.
You really think Steve’s job is so lucrative that RDR would recover their costs in a suit against him? I am guessing this case is expensive and he is judgment proof.
While interesting from a legal perspective, this indemnity clause issue is irrelevant to the main issue of the case which is whether the Lexicon is fair use. I don’t see the point in discussing it other than to try and somehow make the argument that SVA is terrible because someone could sue him. It’s just not relevant.
@ Elizabeth:
Thanks for getting back to the issues. I think your post illustrates just how fact-based and unpredictable fair use can be.
Yes I agree with the judge “A settlement is better than a lawsuit” BUT I think that ship has long since sailed. When this whole thing started, JKR expressed her wishes … And it was (and is) her right to say how her property should be treated. Now it is too late for a “settlement” or compromise.
And for those that think a “collaboration” is the answer …. GOOD GRIEF!!!!
JKR CREATED IT! Why should she share with that usurper? Shoot she wouldn’t even share details of her unpublished work with her own family!
I am a fan of HP and especially JKR. Not only her generous philantropic activities but her technique and writing talent is remarkable and laudable. But I do have the ability to be objective. As a minimally published writer myself … I totally have to agree with JKR and WB.
RDR and SVA have NO RIGHT to JKR’s hard work. She has been most generous with her fans and allowed them to create unabstructed. And as a teacher she has been proud that her creation has been the springboard to more creative endeavors. Some of the fanfiction I have read is quite good. Others have made valient attempts but in every case it has been a homage to the Creatrix herself. I guess because she has been so generous, SVA thought she would not object to his little endeavor….WRONG!!!!
He stepped over the line. What SVA is trying to do is different ENTIRELY … he is BLATANTLY Stealing her work and contributing virtually nothing.
He wants to be a writer???? What if some opportunistic, no-talent, never-was tries something like this on him? Would he object? He bloody well would! Not that I really think that he is in danger of something like that happening, he has not demonstrated any writing talent, only the ability to steal the work of others FAR more talented!
He is getting his “radiated glory” ... he really is spotlighting his true character!
Spare me the meladrama, please, and keep the misinformation you’re attempting to spread, as well. Sorry underscore, but you’re incorrect in what you affirm. You work from one aspect of a creative endeavor and I am sure what you state is what you believe based upon contracts that you personally have entered into. I work on the other side of it, in the preparation and witnessing of contracts, not for one specific individual or company but many different clients. Believe it or not, that IS the truth. It is VERY rare for such a thing as an indemnification clause to be contractually offered and agreed, and even rarer still to specifically protect an author from legal action brought by a singular individual {specifically JK Rowling or her assignees} to occur. It is the norm that the Author is solely responsible for copyright lawsuits and their contract will generally state that they, the Author, indemnify the Publisher from copyright lawsuits.
The specific clause that we are discussing says, and I quote:
”...[b]except[/b] that the Publisher indemnifies the Author for any claims of copyright infringement by J.K. Rowling and/or her licensees or assignees.”
No matter how many times you or anyone else would claim otherwise that indemnification of the Author IS very, very odd.
I’ve a comment to post here, from an author of young adult fiction, who gave an opinion of Steve’s contract based upon a post from someone who took the time to list the specifics of Steve’s contract {as can be seen in document 37, attachment 10 on justia.com}:
Caramel said: Publisher indemnifies author from infringement lawsuits;
12% net sales, English version {retail/wholesale} in US;
10% net sales, English version {retail/wholesale} abroad;
10% of foreign language rights;
For each book is listed on NYT bestseller list, $500 bonus per week added to royalties;
50% of net income that is derived from ordering book online via 3 site links {Floo Netwook}
50% percent of paperback reprints rights by other publishers or book club editions;
All other nonbook subsidiary rights reserved by author;
Publisher will provide 500 copies of book at no charge {Author’s copies} additional copies available for purchase at discount of 50% off retail sails; no royalties for Author’s copies or additionally purchased copies of the book.
I guess the reason I’m so intensely curious is that I’ve seen people discuss his contract, people who claim to be in the publishing industry, and they seem shocked at it…so I’d like to hear from some that I “know” are indeed part of the industry and would be able to say if this were a fairly standard first time contract or not.
The question was answered by an author on ‘Smart Bitches’ who said:
Wow, Caramel, that book deal is bizarre all right. (For reference, I’m a UK-based young adult writer with several fiction titles published.) I don’t know the non-fiction side of the business, but the fact that the publisher indemnifies the author from infringement lawsuits strikes me as very, very strange; all my contracts require me to declare that all content is totally original to me, I’ve dealt with any potential copyright issues myself, and that if I haven’t, it’s all on my shoulders and not the publishers’ problem at all. It’s insane for a publisher to overturn that, especially for such a controversial title.
The percentages quoted for net sales are generous, but not wildly out there (7.5-10% is more normal in my experience, but I don’t know what’s typical in the US). Foreign language rights at 10% is also normal. The bonus for the NYT bestseller thing is nothing I’ve ever heard of before, though. And the 50% cut of orders through those links is very off. Assuming there’s a special offer involved, the publisher is getting less of a profit from those copies, so why are they giving a huge cut away? The only time I would ever expect to see a 50% royalty is on an e-book.
As for the 500 author copies… WTF? Is that a real figure or a typo? (Serious question – I can’t load the docs through my dial-up.) 20, sure. 50… well, that would be seriously over the top, but maybe. 500? What kind of publisher gives away more than ten thousand dollars worth of merchandise for no return? I honestly, literally can’t believe that these guys are for real. They’re crazy!
Everything I’ve heard about this case makes me more and more convinced that RDR are not a proper publisher on any level, but a cowboy outfit trying to make a buck off of publishing books with very little grasp of the standard practises or legalities involved. They have no idea what they’re doing, and they’re arrogant and duplicitous on top of it. They’re going to get utterly creamed by JKR’s lawyers, and I for one think they deserve it.
Thanks for clarifying. I was astounded not to see the same evenhanded coverage for SVA. I don’t visit Leaky every day, and don’t read all of the comments, so I missed Melissa’s information.
"So ends the famous Harry Potter... Alone in the Chamber of Secrets, forsaken by his friends, defeated at last by the Dark Lord he so unwisely challenged. You'll be back with your dear Mudblood mother soon, Harry... She bought you twelve years of borrowed
NotTheHBP, you asked why I think SVA and RDR might have a better legal case, when it looks like about 90% or more of the Lexicon is basically lifted from the HP books.
Ginny, you asked me if I might fill you in on copyright law, and asked if it’s not a violation of the law if you don’t cite correctly or have enough original material.
akemi42 and Lawyer, among others, have already shared some excellent insights on these subjects; I’ll try to add what I can. Fellow reptiles, please correct me if I’m wrong, because I’m on shaky ground whenever I venture into the civil world. :)
First – to understand the law, it’s always important to understand what the law is intended to do. Copyright law is intended to protect creators, as patent law is intended to protect inventors. The government believes the arts are useful and that artists should be rewarded for their efforts so that they will continue producing art. JKR mentioned how this whole thing has made her feel disheartened and has affected her writing, and it’s for that very reason we have copyright law: we don’t want people to stop writing because others can steal their work and profit by it. The person who should profit most from a creation is, ideally, the creator.
But copyright law is not absolute, because the government does not want to stifle innovation. It’s a truism that there’s really no such thing as an original plot. Shakespeare, for example, lifted almost all his plays from other people’s stories or from history. But what he did isn’t considered intellectual theft; what he produced often had more merit than what inspired him. So within copyright itself, you have the tension between wanting to protect creators so that they’ll continue to create – but not to such a point that will prevent innovators from innovating.
Then you have a tension with other areas of the law – First Amendment law, for example. How do you resolve restrictions on writing and expression – for copyrights are government-enforced restrictions on writing and expression – with the guarantee of free speech and freedom of the press? The areas of the law that are the most difficult to deal with are the ones that are balancing acts between rights that most everyone agrees with in principle. What do you do when two rights we believe in conflict?
Answer: the courts balance several factors to decide which right takes precedence. According to the Fair Use Doctrine, in a case asserting violation of copyright, the judge must weigh four factors:
1) the purpose and character of the use of the copyrighted work (in this case, the purpose and character of the Lexicon’s use of the HP novels);
2) the nature of the copyrighted work (in this case, fictional novels);
3) what amount and proportion of the whole work was taken; and
4) the effect of the use on the potential market for or value of the copyrighted work.
If, after weighing these four factors, the judge decides that the use of the copyrighted work is a fair use, then it’s not a copyright violation. If the judge decides that the use is an unfair use, it is a copyright violation. The Fair Use Doctrine is intended to protect legitimate discussion, reference, commentary, etc. It’s a fact-driven inquiry – which is why I think it helps JKR that she has a factually sympathetic case – and it’s really easier if you look at it from a variety of examples, not just trying to understand the doctrine on its own.
Some examples:
1) I publish a book called Larry Hotter and the Fugitive of Alcatraz. The plot and the characters are basically identical to Harry Potter and the Prisoner of Azkaban; I’ve just changed around some names and moved the action to America. I make certain that I don’t lift verbatim passages from the original work.
Fair use? No. Under factor 3, it doesn’t matter that I didn’t steal Rowling’s language, because I stole a huge portion of the whole work. Under copyright law, this is scarcely better than taking Rowling’s novel verbatim and publishing it whole under my own name.
2) I write a review of Harry Potter and the Deathly Hallows for my local newspaper. In the review, I include a few direct quotations from the book, a plot summary, and my comments and evaluation of the work.
Fair use? Yes. Under factor 1, the nature of the use of the copyrighted work is to discuss the work. Under factor 2, my work (an article) is not the same as the copyrighted work (a fiction novel). Under factor 3, though I am commenting on the work as a whole, I am not taking a large portion of it. Under factor 4, depending on the nature of my review and how much the readers trust my judgment, it might inspire additional sales or deter additional sales, but my work is not a direct competitor with the copyrighted work.
3) I’m a college professor and I write a lengthy scholarly article on Tom Riddle, using many verbatim passages from CoS and HBP to support my points. The article is critical of Rowling’s decision to make Riddle more of a powerhungry sociopath than a bright, charming, talented boy whose ambition and bitter life experience destroyed his soul. I say that in COS, Riddle appeared to be more of the latter, though there were hints of the former. In HBP, however, he is mostly the latter. I say that the story as a whole would have been more compelling, and the parallels between Riddle and Harry more pronounced, if Riddle had started out in pretty much the same place as Harry but came to let the defining characteristic of his house (ambition) consume him in a negative way, while Harry let the defining characteristic of his house (courage) shape him in a positive way.
Fair use? Yes. Though I’m using major portions of Rowling’s work to make my points, and though my points may deter prospective readers from reading the book and thus have a negative impact on the market, I’m not trying to pass off the work as my own.
4) I’m fascinated by the characters of Sirius and Regulus Black and want to write a book about their relationship. I’m aware, however, that borrowing Rowling’s characters and writing my own book about them for profit would be unethical, not to mention illegal. So I think about what appeals to me about Sirius, Regulus, and their relationship. Turns out it has little to do with them being wizards, or great players in the wars against Voldemort, or anything like that. What really appeals to me is a story about two aristocratic brothers – the brilliant, charming, rebellious, hotheaded heir, and the dutiful, obedient, envious but ultimately loving younger brother. The end work is a book about two brothers in Revolutionary France; the older one defies his aristocratic, royalist family and sides with the Republicans; the younger one fights faithfully for the crown. In the end, both are disillusioned with their causes; together, they save their parents from the guillotine, and the entire family heads to America to start a new life.
Fair use? Yes. I was both inspired and influenced by Rowling, but my work, though a fictional novel, is meant neither to compete with nor replace hers.
5) I want to write a book about the relationship between Lily Evans and Severus Snape. Other than a very few scenes based on the ones that appear in DH, the plot and the language are my own. I want to be sure to give credit where credit is due, and so I dedicate the work to J.K. Rowling, encourage everyone to read the originals, and make it clear that I’m just a very enthusiastic fan who wanted to tell that part of the story that didn’t really get told.
Fair use? Probably not. However much I credit Rowling, however much I cite her, however much I make clear that the scene where Lily and Severus meet was written mostly by her, I’ve still appropriated her property and tried to make it my own.
6) I read a nonfiction book about the history of alchemy that includes a chapter on the philosopher’s stone. The author of the book argues that the philosopher’s stone really did exist and that it’s been hidden to protect it from powerhungry evildoers. He provides evidence of this fact. Inspired by this argument, I write a fiction book about a heroic boy trying to protect the philosopher’s stone from an evil tyrant seeking immortality. The author of the nonfiction book sues me, claiming I stole his idea.
Fair use? Yes. This is similar, in principle, to the lawsuit over the Da Vinci Code a few years ago. You can’t copyright a fact, you can’t copyright evidence. If you write nonfiction, you are copyrighting your expression of the facts, but you can never copyright the facts themselves.
Leaving the hypotheticals, let’s come to this case, and evaluate it under the four factors.
(1) Purpose and character of SVA’s use. He has taken information from Rowling’s books and arranged it into what is basically an encyclopedia. It seems much of the language is taken verbatim from the HP books. The purpose is not to compete with the Harry Potter books, or to replace them, but to supplement them—to make, basically, an easy and comprehensive reference guide. This works in SVA’s favor. One of the primary purposes of copyright law is to protect the creator from unfair competition. But the Lexicon, if anything, promotes the original.
(2) Nature of the copyrighted work. A reference guide. Again, this works in SVA’s favor. It is not a fictional work intended to compete or replace, nor is he trying to pass of JKR’s work as his own.
(3) Amount and proportion of whole work taken. Apparently substantial. SVA seems to have copied a great deal of material rather than just synthesized it, as reference works usually do. This works in JKR’s favor.
(4)Effect of the use on market and value. To me, this is one of the more interesting issues, because this is where talk of the Scottish Book has come into play. But the work the judge would be comparing the Lexicon to would not be the Scottish Book, it would be the existing HP books. I don’t think publishing the Lexicon will have any effect at all on the market for the series or its value. I also don’t think, realistically, that it will have an impact on the Scottish Book (other than the fact that it might dishearten JKR and lead to her not publishing the Scottish Book). But under copyright law as it’s written now – at least, in my understanding of it – the comparison has to be between works that already exist. You can’t copyright an idea for a book. I think this factor works generally in favor of SVA.
I’m not saying that because I like that. I have a lot of sympathy for JKR’s point of view. But, looking at the Fair Use Doctrine, I’d say three of the four factors support SVA.
Does that mean that the judge agrees with me? No. Even if the judge did agree with me, does that mean he has to decide in favor of SVA? No. This isn’t a mathematical equation. Factor 3 alone is often enough for there to be a copyright violation, if the borrowing is substantial.
What this does say to me is that both parties have a fair shot at winning, and I think the judge believes there are compelling arguments on both sides.
As I said, I’m not a copyright lawyer. There are people in the world with far more knowledge and ability in this subject than I; many of them are involved in this case. The judge is an expert on the law, and even he finds it muddled, especially when you throw in the Scottish Book and whether or not that’s something that can even be properly considered, since it’s not yet a copyrighted work.