Day two begins today in the court case of J.K. Rowling versus RDR Books/HP Lexicon's Steven Vander Ark. The media continues with reports about the case, including one that mentions the fact that J.K. Rowling had bestowed the honor of a Fan Site Award from her website. Read more to see what she had to say and continue to check here for all of today's news on the case.
In an article by mlive.com, Jo mentions that she was extremely shocked to find out that Vander Ark was planning on publishing a book, as he had always stated on his site that he was not going to do this. One morning, she had "almost choked on my coffee" when she read that Vander Ark warned others not to copy portions of his Web site.
She did acknowledge she had bestowed an award on Vander Ark's web site in order to encourage a very enthusiastic fan. However, she now has second thoughts about all the encouragement she has given to online discussions and Web sites devoted to her books.
RDR lawyer Anthony Falzone stated the Lexicon book was a reference guide, claiming it would, "organize and discuss the complicated and very elaborate world of Harry Potter." RDR Books is not contesting that this book infringes upon Jo's copyright, but instead states that it is a fair use allowable by law for reference books.
Vander Ark, 50, stated he had declined proposals to convert his website into an encyclopedia, partly because he believed until last August that the book would represent a copyright violation. Vander Ark was contacted by RDR Books after the release of Harry Potter and the Deathly Hallows last summer, and was told that publication of the lexicon would not violate copyright law. However, to protect himself, Vander Ark insisted RDR Books include a clause in his contract that the publisher would defend him and pay any damages that might result from claims against him.
Jo, who has begun her own encyclopedia but does not expect to complete it for two to three years, stated that if Vander Ark's lexicon is published, "I'm not at all convinced that I would have the will or the heart to continue with my encyclopedia."
Courts have decided that the four pillars of the fair use defence must be weighed against the value and substance of the new work. In other words, a judge may decide that 83-90% of the text used is necessary to create an encyclopaedia of facts. If you put a definition of quidditch in an encyclopaedia he may decide it necessitates much of the text in the original story. He has latitude to consider the nature of the new work in regards to this argument. If RDR and SVA were to publish a novel using 83 -90% of Rowling’s text that would clearly torpedo any fair use argument but since it is an accumulation of definitions and facts in book form, the first pillar may be a part of a valid defence. The judge gets to decide.
The second part of the first pillar concerns commercial use and the weight of this argument has been eroded in courts because, in a lot of copyright cases, just about everything has commercial use and it has been allowed. Sony v. Universal has nothing but commercial gain written all over it but Sony still won the case.
The third pillar, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" (I cut and pasted that, btw :) )relates to the above. This may fail or it may pass because of the nature of the new work being an encyclopaedia.
My feeling is judges tend to hang their hat on the strongest argument and minimise the effect of the other pillars when passing judgement. In other words I think he will find,
“The nature of writing a compendium of facts on another artists work may necessitate a great amount of text from the original work in order to present an encyclopaedic format but in this case the writing of a compendium infringes to a great deal Rowling’s ability to market a similar type of work. I find for the plaintiff.”
Bang, bang, goes the gavel.
“This case is closed.” as he quickly rises and exits. Much to the astonishment of the gathered crowd but it was a long day and he was rather annoyed he forgot to set his vcr to record the hockey game. He didn’t quite slam the door behind himself but he was in a hurry to get home to catch the last period.
by Aragorn @ 16 Apr 2008 - 11:54
@ Just Browsing A fair use defence does, however, have to meet the following portion of the Fair Use definition, "allows *limited use* of copyrighted material without requiring permission from the rights holders". With an estimated 83-90% of the material taken directly from the text, it fails to meet this miserably. That is called plagiarism, not just copyright infringement.
The first pillar of fair use also happens to be "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes" which the Lexicon case again falls flat on its face with - it's for profit and, as Rowling says in her statement, "it takes far too much and offers precious little in return".
The second pillar, nature of the work, holds only a little ground in this case. The work is fictional, which means that much of what is in his Lexicon existed only inside her head before the Potter series.
The third pillar of Fair Use is, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole". Yet again, the Lexicon falls flat on its face with regard to this pillar. The amount it lifts directly from the original series has been estimated at 83%-90%, far exceeding anything reasonable.
The fourth pillar of fair use is, "the effect of the use upon the potential market for or value of the copyrighted work". As put out in testimony, the Lexicon would substantially harm the market for Fantastic Beasts and Where to Find Them, Quidditch Through the Ages, and the Scottish Book, all of which are out for charitable cause.
Also, in Campbell v. Acuff-Rose Music, Inc., it was established that "in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement" which, in my own personal opinion, RDR and SVA have very clearly failed at. How they can explain away 83% of directly plagiarised material is beyond me, however.
by just browsing @ 16 Apr 2008 - 10:59
A fair use defense does not necessarily have to provide new material(re: Betamax, Sony v. Universal), it must, however, be transformative. Changing the original storybook format into an encyclopedia of facts is indeed that transformative argument.
The fair use defense in this case may fail on the potential use pillar. In Rogers v. Koons a sculpturist made models of a photographers work arguing the photographer would never have thought of doing this. Although the work was transformative, what mattered to the courts was that a potential market for the original work was being compromised.
In this case Rowling has argued that her potential market for an encyclopedia of her work is being undermined. This could be the fulcrum of her case.
That the work is not transformative is a weak argument as shown above.
Because the work is being changed into an encyclopedia of facts the nature of the original work is inconsequential, similarly weak.
The encyclopedic format of the new work necessitates a substantial amount of infringement and this could be allowed because of its transformative nature.
Thus the judge is left with the same potential market argument as in Rogers v. Koons, except that in this case the original artist is expressing a desire and forethought to capitalize on that market. This is a much stronger argument that has exact precedent.
by Aragorn @ 15 Apr 2008 - 15:07
@Reality
It's true that fair use isn't limited to just commentary. I never said it was. I've noted that it's also inclusive to parodies, critical review, etc., but the fact remains that the Lexicon still does not fall under any of these categories. The Lexicon cannot in any way, shape, or form be classified as fair use. To do that it must provide material that does not already exist within the series. The Lexicon fails to do this, as has been brought up in the court and in numerous documents.
by seeker15 @ 15 Apr 2008 - 14:53
i definately support Jo. if the reports are right, the lexicon book is basically a condensed copy of the series divided up into sections that contains no commentary. now if the book was like the others where the authors try to better interpret the books, it would be a lot better. but a clone of the series is just unacceptable. Jo put LOADS of time and effort into them, probably more than anyone will ever know. she should take back that fan site award.
by Reality @ 15 Apr 2008 - 14:35
True, she does hold the rights. But these things must be considered:
Fair Use isn't just limited to comments on copyrighted works. It also includes the use to criticize, and to teach. Where the market for the Harry Potter Books will not be displaced because of the sale of the Lexicon Encyclopedia, it can be weighed as Fair Use of the Original Series. Primarily because it is transformative of the original works making the new composition unique from the original work by way of one being the material and the other being a fact list.
by MDS @ 15 Apr 2008 - 13:31
Reality,
No, the fair use allows you to write an book on Harry Potter. If say you wanted to write a book, that says explores the mythic underpinnings of the series, that's legal, and I don't think Rowling would have a problem with that. The example that comes to mind "What is a Christian to do with Harry Potter." Yes, it was writen to cash in on her work, but it is covered by fair use.
What Rowling is objecting to is a book that is similar to one she wishes to offer, and is largely a rehash of her own words. Basically she said most of the work is directly lifted from her books and doesn't tell Potter fans anything they don't already know. Her position is you can't take work someone already produced, repackage it, and publish it. While that might be okay for a fan site, its not for a money making effort.
by Aragorn @ 15 Apr 2008 - 13:29
@Reality:
1. If it is your impressions, thoughts, and ideas - which implies commentary and critical review - no, she wouldn't be able to stop you. Why? Because material like this easily falls under fair use. She's never tried to stop books like this before. There are even books out there that harshly criticise the series, but they're all permissible because they follow the four fair use guidelines. She's actually happy that people really are interested enough to comment in review books of that nature. The Lexicon, however, does not offer commentary whatsoever. 2. Yes, true fans *will* buy the encyclopaedia. That's a given. But what about the parents or grandparents who want to get their child 'the best' present for their birthday or for Christmas? They don't know the difference between some guide purporting to be official and an official one. It's partially these innocents that are the cause for concern. Your second point in this number is that she wants to be "the only source of Harry Potter information". Um, no duh, she does. It's her world. She created it - therefore she is the ONLY person who can really and truly offer proper information on the subject. Again you bring up your book about opinions. Yes, that would be permitted - HOWEVER - the Harry Potter Lexicon print edition is NOT AT ALL commentary, opinion, or critical review. It simply takes her seventeen years of hard work, slices it up, and arranges it alphabetically. It offers nothing new, no insight whatsoever. The OTHER books that have been permitted DO. In another article she praises two such companion books for their delving into the mythological past of creatures that happen to be included in the series, go on in depth about possible roots to things contain in the pages. It's all a matter of THEIR WORK. IE: If it's their work, even if it's to comment about her work, it's permissible. The Lexicon DOES NOT fall under this category.
by Aragorn @ 15 Apr 2008 - 13:20
@Just Browsing:
The reason she's having second thoughts is because if RDR wins this case, that sets precedent that, if she permits a site, they can make a print version of their content without her permission for their gain.
This site, and others like it, have been permitted for years by J. K. Rowling and by Warner Brothers because they act like publicity machines. Rowling and Warner Bros. both don't want to have to pull the plug on them, they really don't, but if RDR wins this, they will very seriously have to tighten controls on these fan sites, even to the point of closing down some of them.
by Reality @ 15 Apr 2008 - 13:19
1) If I wrote a book on my impressions of the Harry Potter series is it right for her to keep me from printing it and selling it? 2) Even IF this encyclopedia is crap and it doesn't contain all the details that really went in to the books—IF (or when) she comes out with her OWN encyclopedia, true fans will buy that book hands down. EVEN IF THIS LEXICON BOOK GETS PUBLISHED! What she is trying to do is make sure that she is the ONLY SOURCE of Harry Potter information. And like I said before, if I were to write a book on MY interpretations of her books pointing out my opinions—it's my OPINION and she can't call it theft... so how is this different? Really.
by just browsing @ 15 Apr 2008 - 13:09
Quote "she now has second thoughts about all the encouragement she has given to online discussions and Web sites devoted to her books."
China would like this. It would make things a little easier for them. Sue anyone who participates in an online discussion about anything chinese.
This website? ...illegal.
by Aragorn @ 15 Apr 2008 - 11:17
Is she really, though, freedom? Is she really? Is she not allowed to protect her own work? Seriously, think about what you say before you say it. The fact remains that the Harry Potter series is ROWLING's work, not Steve VanderArk's, no matter how much he wants it to be. That gives HER the right to say what goes and what doesn't - and if you've read what he has for the print version of the Lexicon, you'd be nodding in agreement that his 'encyclopaedia' royally blows, just like she said.
by @ 15 Apr 2008 - 10:51
GET OVER YOURSELF ROWLING... you are just another rich cry baby
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