The Associated Press has a brief history of the trial, as well as the challenges of deciding when the claim of fair use has gone to far:
“Lawrence Pulgram, an intellectual property lawyer who represented Napster in a copyright fight with the rock band Metallica, said deciding where to draw the line is rarely easy.
“Fair use is the most erratically applied doctrine in copyright.”
The article notes that A-to-Z reader guides, such as a lexicon, may be allowed under law, but that J.K. Rowling and WB charge that Steve Vander Ark went too far with the Lexicon.
“Rowling said during her testimony that Vander Ark could still do his book, as long as he changed it to take less of her material.
“I never ever once wanted to stop Mr. Vander Ark from doing his own guide. Never ever,” she said, before asking the judge again to block it in its current form.”
RDR Books Publisher Roger Rapoport says he’s willing to consider a revision, but that neither J.K. Rowling or Warner Brothers have expressed a willingness to compromise. He was asked whether there is a “danger” in granting authors too much control in “books about them”. Said Rapoport:
“We would have to get approval before we could write or publish on people’s work. They would control critical commentary on their work, at any time, whether it is our kind of book or an Associated Press article. It would create total chaos in the area of critical commentary. Frankly, I don’t think that would be good for anyone, even the authors themselves.”
The article notes that Judge Patterson is not expected to make a ruling for another month.
Ah, I seem to have opened a can of worms here :-).
But to be clear – if the online lexicon is ok because it’s free to use, and the book is not because people would have to pay for it – then money has to be an issue. Whether that is due to :
1) SVA/RDR making money,
2) JKR/WB not, or
3) JKR’s charities losing out
is, however, open to debate. Having said that, I will be surprised if the lexicon website doesn’t close down if JKR/WB win this case on the basis of copyright violation. As regards JKR’s use of the lexicon, only she can know whether she did or did not go into internet cafés to check out facts while out writing. Nevertheless, I am not the only person who finds the assertion that she did not use the lexicon to help write her books and only claimed that she did in order to encourage fans to participate somewhat peculiar. But let’s see what happens…
Vander Ark did write JKR asking what he should add or take out of the book. Vander Ark seemed to have been talked into this by RDR. As Leakey says, this is a test case because it deals with the transference of information from a largely unregulated medium (the internet) to the more regulated media of print. Vander Ark is just an excuse to have this issue looked into.
JKR doesn’t own her work completely any more since she signed over some “intellectual property” rights to Warner Bros when she gave them rights over the movie version and HP merchandising. If JKR says, does or writes anything which leads to the loss of profits for Warner Bros, they can sue her for loss earnings under Chapter 11.
I don’t think Warner Bros makes anything over the sale of books, but I think they may have influenced the content of DH in that it reads like the Air Farce skit of when they put the seven second delay in Coach’s corner (as if one or more subplots were removed or altered and the editing to cover these holes was very minimal. DH was not as good as JKR’s other books, and easier to fit into one movie than even PS, but Warner Bros is so happy with its Hollywood format they wish to make two movies out of the book.
I think that what JKR wants to get out of this case is to see whether Warner Bros can sue Vander Ark for infringing on their property and profits. If Warner Bros loses on this, then JKR can be more free in what she says and writes.
This is no different than Disney suing Winnipeg over Winnie the Pooh.
From Leakey:
Another part of the fair-use test involves the effect on the published work’s market, essentially just how clearly the copyright holder has shown that the work will have a damaging economic effect on her publications.
From Winnipeg Free Press:
Warner Bros., the maker of the Harry Potter films and owner of all the intellectual property related to the Potter books and movies.
Quote cut off, but is very important in determining how much rights JKR has versus how much rights Warner Bros has concerning Harry Potter:
”... Warner Bros., the maker of the Harry Potter films and owner of all the intellectual property related to the Potter books and movies. “
Or the entire quote:
“Vander Ark testified on the second day of a trial in U.S. District Court in Manhattan, pitting his publishing company, RDR Books, against Rowling and Warner Bros., the maker of the Harry Potter films and owner of all the intellectual property related to the Potter books and movies. “
By: David B. Caruso, WPG Free Press, April 16, 2008, p. D2
Note that Disney was able to keep its rights over the movie and merchandising of Winnie the Pooh (based on a bear in the London Zoo named Winnipeg who was the mascot for the 2nd Canadian Infantry Brigade) despite writer Milne’s descendants wanting to get the rights back.
JKR had a deal that Warner Bros could not make spin offs (ie movies or cartoons which go beyond the book) – or thinks she did.
You seem to rebuke ElizabethJ for her opinion that this case is more about money than a copyright/plagiarism issue. You use the following in your reasoning: “The reason the Leaky website was not taken down by JKR was stated in my original post: it was a free-for-use non-profit fan site that JKRowling allowed to infringe for precisely those free-at-source free-to-use reasons,” so it seems to me you’re saying “It’s not about the money, because JKR allowed the website because it was free, but she’s not allowing the book because it’s a profit-making venture.” I’m confused. So how is that not about money? (if that is your reasoning…)
Then you tell us “You have to believe RDR and SVA and disbelieve JKR in order to sustain your position. Well, it’s a free country, but as RDR is a proven and congenital dissembler, and as SVA was caught essentially and repeatedly contradicting himself on oath, I would think twice.” In that same post, you offer us an example of JKR lying, when you say “The other oft repeated myth is that JKR used the Lexicon to write her book(s). JKR stated on oath in court during the trial the ONLY reason she posted the remark about looking at the Lexicon site was so that she could give it an award to encourage the sites’ non-profit making, free-to-use, fan-based nature.” So in other words, you’re saying that JKR stated on oath during the trial that she lied on her website? Is that accurate? So we should feel confident that she never lies then?
But from that moment on, Hermione Granger became their friend. There are some things you can't share without ending up liking each other, and knocking out a twelve-foot mountain troll is one of them.
A MONTH? That’s a long time, but I hope he decides soon enough, because I can’t bear this trial to drag, it’s been torturous enough.