JK Rowling Appeals To Judge's Emotional Side, Rather Than A Real Legal Argument Over Potter Guidebook

from the apparently,-her-fiction-extends-to-the-courtroom dept

Earlier this year, we wrote about how J.K. Rowling's lawsuit against the publishers of a guidebook about Harry Potter's universe was extremely misguided. That lawsuit got a lot more attention Tuesday, as Rowling herself showed up in court to play an emotional, rather than legal, strategy. The NY Times even reports that she was "stoically holding back tears." Cry me a river. Rowling is basically trying to get copyright law to do a lot more than it is intended to do -- and all of her emotional bunk doesn't change that. Claiming that the "stress and heartache" of such a publication had hurt her creativity for the last month seems excessively questionable. Furthermore, it doesn't change the fact that a derivative work, such as this guidebook, doesn't violate copyright. There are lot of things that cause me stress and heartache and which might make me lose my concentration. It doesn't make them illegal.

It appears that the publisher's lawyer had some fun, pointing out that Rowling didn't seem to have that same sort of stress and heartache when she gave an award to the website that "The Harry Potter Lexicon" came from. And, when presented with evidence of how the book took Harry Potter details and did more with them (making them more useful), Rowling tossed out the following: "This is theft. Wholesale theft." Well, no, it's not. If it were anything, it would be infringement (not theft), but more importantly, it wasn't about republishing the content, but making it more useful. It's the same argument we discussed recently with people overestimating the value of the content, and underestimating the value of the service of making it useful. The most damning point might be that Rowling herself in the past admitted to using the lexicon to check up on facts she didn't remember.

However, the real key point that Rowling went back to again and again in her complaint is that she just didn't think the quality of the Lexicon was very good. That seems like a bizarre complaint, as copyright has nothing to do with quality. In fact, as the publisher's lawyer asked, "You feel it's your responsibility to prevent people from paying their hard-earned cash for things you don't like?" At which point, she switched arguments again, reverting to the claim that it was "theft." Of course, if she really thinks that the book is awful, there's a really easy solution: to come out with her own version of a guidebook. Surely, people would be a lot more interested in buying the "official" version, written with Rowling's approval, than some fan-created one. In fact, Rowling admits that she's been thinking of doing exactly that (and throws in the totally separate from the legal issues, but good for an emotional tug, claim that she would donate all proceeds to charity). Of course, there's nothing actually stopping her from competing, other than what appears to be her own unwillingness to actually have to compete for readers.


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  1.  
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    Anonymous Coward, Apr 16th, 2008 @ 7:20am

    Love the books, wouldn't piss on the author if she were on fire.

    It's time to implement a better review system I think so some of these cases don't even get to court. The legal system is being bogged down in multi-million dollar lawsuits and real crime is on the up. All these spoiled little rich kids need to take a good look at themselves and ask why they need MORE money for something they've already profited handsomely from...

     

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    Chris, Apr 16th, 2008 @ 7:26am

    Harry Potter Wannabe's

    I am not a huge HP fan here but I see the problem that JKR has with someone else using her creative ideas for their own gain. Perhaps she is not taking the best legal approach. Don't condemn her for that, she is a writer, not a lawyer. Condemn her lawyers for allowing it. Regardless, it's plain and simple. Some Harry Potter nerd, probably a 27 year old kid living in his mother's basement, took material from a Potter book and recompiled it in his/her own "guide" of "useful" information. At the very least they should have asked permission. They probably didn't because they knew the answer would be no. Now we have another stupid legal battle clogging up the justice system from some dork trying to ride the coattails of a renowned author.

     

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    SteveD, Apr 16th, 2008 @ 7:28am

    Its always seemed that people who base their cases on 'its the Principal of the matter!' or similar (as Rowling has been doing in the UK media) do so in the absence of any real argument.

    The case seems to be based on nothing more then the fact that Rowling doesn't want the book published, and the fact that she created Harry Potter should be gaurentee so.

    The argument over the extent of which content creators should have control over their work is a messy one, but its surely not a debate thats going to be advanced very far by emotional appeals.

     

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    Pete Valle, Apr 16th, 2008 @ 7:31am

    Guides

    Has Rowling actually gone to a bookstore lately. There are a frakload of unofficial guides to HP already out there, I recently bought one for my wife. There is also loads and loads of guides about Star Wars, Star Trek and other stuff and you don't see them suing everybody.

     

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    Alimas, Apr 16th, 2008 @ 7:31am

    Re:

    I don't think its even money. Its an even baser extension of greed.

    She came up with the characters and such in her books and wants to be the only one that can ever get credit for anything related to their existence. Someone making up a guidebook on "her" characters infringes on what she perceives as her own little space.

    Kind of like if she worked hard to make a garden on her front lawn in a pretty shape using specific flowers. A neighbor than made shape in their own garden using the same flower selection and she feels all challenged.

    Like someone stealing her limelight.

    She needs to grow-up.
    And a review system should be put up and penalties for wasting the court system's time with stupid lawsuits.

     

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    TriZz, Apr 16th, 2008 @ 7:35am

    Cliff's Notes

    Where's the lawsuits there?

     

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    Jason, Apr 16th, 2008 @ 7:35am

    It's stealing, plain and simple

    I have no issues with the site and I have used it in the past, but this author is basically using her content, her characters and her books to restate the same material in a reference format. The author is not using parody, or other first ammendment covered rights to alter her material and make it his own, no, he is attempting to profit by restating her books' content, period. She loves the fan sites and supports their work. I do too - great content, editorials, fan fiction etc. which she supports. She does not support another author stealing her content and restating it as his own for profit.

    If Danielle Steele wrote a steamy novel about Ginny and Harry, that would be fine. Hell there are already a million of those out there. But to add no personal value and no creativity and to simply steal another's work is wrong.

    I mean I must be missing something here? Is this site supporting sonmeone who uses another's work as their own?

     

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    Tara, Apr 16th, 2008 @ 7:37am

    You are clearly missing one important fact -- derivative works have to include substantial scholarly analysis in order to not violate the copyright. When the derivative work has insufficient analysis, it does not constitute fair use and is thus in violation of the copyright. The Lexicon encyclopedia in question does not provide enough analysis to be ruled fair use. 90% of the words in the Lexicon are lifted word for word for the books. Legal precedent in the area of copyright has already established that simply re-organizing someone else's work so it is more accessible and searchable does not constitute fair use.

    You may not like that she cried, but authors have a responsibility to defend their own copyrights, it's not about the money, it's obviously about the principle, and Rowling is on the right side of this.

     

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    Anonymous Coward, Apr 16th, 2008 @ 7:38am

    Re: It's stealing, plain and simple

    Amongst a number of problems with your comment, we don't have "first ammendment covered rights (sic)" in the UK.

     

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    yo ho ho...., Apr 16th, 2008 @ 7:46am

    Too bad...

    ... she went from an amazing "rags-to-riches" story which earned her well-deserved praise and recognition to nothing more than a cold, money-grubbing example of excessive greed. She could never spend her fortune in her lifetime -- and yet now she claims she is "distressed and heart-broken" and lost her creativity because of a FAN that has done nothing more than worship her works and bring them more attention!!!

    Deplorable! Despicable! UK's version of trailer-trash!

     

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    Chris Dotson, Apr 16th, 2008 @ 7:50am

    The real issues

    I'm so tired of people saying JKR is being greedy. Those statements are made from people who only know her by the news they hear reported about her. She is an extremely generous woman, giving loads of money to charities! There is the heart of this lawsuit.
    She IS planning on writing an encyclopedia on the whole Harry Potter universe. ALL of the money from that book, when it comes out, is going to go to charity. EVERY LAST CENT. She has said that publicly so many times that if she doesn't follow through with it, she will be called out on it.
    What Steve and the Lexicon have done is, in my opinion, plagiarism. They have taken her work and simply put it in a timeline and organized it. It's not a collection of essays or dissertations on Harry Potter. It's Jo's work, reworked.
    Before you flame me, put yourself in her shoes. If YOU had something you had created, how happy would you be if someone essentially took out all of the pages and just re-organized them?

     

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    Jeffro, Apr 16th, 2008 @ 7:51am

    trademark worth a try?

    Just trying to take a more novel approach on this - but if JK's issue was with the *quality* of the work, wouldn't trademark possibly be a more effective argument? I'm rusty on TMs, but could a legal argument for "dilution" have a place here? With all the focus on branding these days, I'd think there would be some more nuanced TM concepts that could be employed here (I'm recalling now that the effect of a dilution claim was being, well, diluted by the courts).

    I understand that it's difficult to attack a written work with a trademark slant - but if enough of the key names, places, etc are registered and or contribute to the value of the mark/brand of Harry Potter, couldn't a case be made?

    Not looking for flames here, because I know this is a stretch - but just trying to think creatively and see how others might approach it . . .

     

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    Chris Dotson, Apr 16th, 2008 @ 7:55am

    Re: Guides

    Most of the books out there about HP are an analysis or original thoughts regarding the books. She has no problem with those. She also has no problem with publishing an encyclopedia or Lexicon of her work so long as it remains free. You cross the line when you start to charge for things that are not original.

    Just because the owners of the copyright of Star Wars, Star Trek and other stuff don't stand up does not make what Steve and his publishing company are doing legal.

     

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    DanC, Apr 16th, 2008 @ 7:56am

    Re: Harry Potter Wannabe's

    took material from a Potter book and recompiled it in his/her own "guide" of "useful" information. At the very least they should have asked permission.

    The point is, permission is not required. There are plenty of unauthorized sourcebooks, guidebooks, and encyclopedias for Star Wars, Star Trek, and various other properties with a rich background. In fact, previous to the release of several of the Harry Potter books there were unofficial speculation books released. There's nothing illegal with them; most of them plaster the words 'unofficial' or 'unauthorized' across the cover to avoid customer confusion.

    Rowling is under the impression that she alone should be able to control content related to Harry Potter. Notice that she attacked the quality of the lexicon, but fell back on the theft argument when questioned on her statement.

     

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    jeffro, Apr 16th, 2008 @ 7:57am

    Re: The real issues

    I think you're sort of missing the point. Of course I wouldn't be happy if someone reorganized then sold pages of what I created - but when you're in a court of law, your "happiness" factor is irrelevant.

    The courts have spent a lot of time evaluating the purposes and effects of providing someone legal protection from copying, and they've established standards that one needs to meet in order to establish "copying" and for one to be reimbursed for it. The problem is, whether JK is right/wrong/good/bad/whatever, her crying in court is so inappropriate as to be sad - and it's a testament to the weakness of her case that she had to go that far.

     

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    DanC, Apr 16th, 2008 @ 7:59am

    Re: trademark worth a try?

    A trademark lawsuit is easily avoided by putting 'unofficial' or 'unauthorized' across the book cover. This has been used to publish other sourcebooks and guidebooks, as well as biographies.

     

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    mike allen, Apr 16th, 2008 @ 8:02am

    this is a joke

    It is not illegal or copyright infringement for one auther to take up the charactor of another to wiite further novels in the same style. this has been done many times. for example Sherlock Homes. Many TV scripts were wrotten using Simon Templer (the saint) after the books ran out not sure of James Bond films but maybe. This want slinging out of court.
    And JKRs tears returning to the crocadile she borrowed them from.

     

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    SteveD, Apr 16th, 2008 @ 8:06am

    Re: trademark worth a try?

    You might be right, but in this case it would be difficult to attack the work based on its quality given that Rowling has previously presented an award to the site it was based on. As others have comented, unoffical encyclopedias are fairly common in bookshops. But another issue that no ones picked up on is the right of the Lexicon author to capitalise on his work. Given that the fellows put a lot of his personal time into creating and maintaining a fan site that has no doubt made a positive contribution to the franchise, doesn't he have a right to get some return from it? And I’m sorry for being a cynic, but this ‘donate everything to charity’ line seems like quite a blatant tactic for securing public opinion. That women has so much money she could give everything an encyclopaedia might make right now and not miss it.

     

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    Dan Stevens, Apr 16th, 2008 @ 8:12am

    Right to derivatives that add value

    What is a 'derivative'? Surely the nature of artistic creativity is drawing inspiration and ideas from existing work of others? Therefore isn't deny derivatives contrary to the concept of art? I'm not advocating taking credit for other's work without changing it or adding value, but surely if someone creates something of value, even if that value 'piggybacks' on value of someone else's creation they should be rewarded for the value they added?

     

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    Italian Revolutionary, Apr 16th, 2008 @ 8:14am

    Re:

    Is it not the case that if JKR loses the case she pays the defendant's legal fees as well as her own? Seems to me that with that as a possible result, ANYONE would think twice about taking civil action.

    Whether or not JKR is a greedy hack or despises freedom of speech, which does have a different point of view in the UK, it is also possible that she is being absolutely honest (since, I assume, she was under oath at the time of the comments): that she feels that anyone who plunders her intellectual (I use that word with some trepidation) property rights is wrong. I believe a case could be made similar to the one that was used when Ted Turner wanted to 'colorize' classic black and white films like Citizen Kane.

    Garibaldi

     

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    Michael Whitetail, Apr 16th, 2008 @ 8:15am

    Re:

    Its not up to you, JK, or anyone else other than the court to decide if the text in question is of "substantial scholarly analysis." Thats why the case is in court.

    As for asking permission, that was given when she endorsed the website that collected the facts and placed them online with an award of her own devising. Also as stated, she may have well damned herself in the eyes of the law by claiming that she has indeed used the work to gain facts that she previously forgot herself.

    On the accusation of plagiarism, while I have not read the lexicon myself, I highly doubt that the tome consists of the majority of the text of 7, multi-hundred page books. Using those works, reorganizing the information from story form to (fictional) encyclopedia form most certainly falls under the Derivative Works Clause, at least as we in the US understand it. Differences in the laws will be sorted out by the courts.

    The law/ international copyright treaties are all that matters here. Her anguish and heartache, the fact that shes worth over a billion dollars, or that she gives "vast sums" of money to charities is completely irrelevant to the case at hand.

    While I can understand her wanting to control her works and creations, that desire does not give her license to ignore the law or to make up her own interpretation of the law. That is the courts job.

     

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    Ima Fish, Apr 16th, 2008 @ 8:16am

    There is a difference between complimentary services and parasitic services.

    The road construction industry compliments the automobile industry. Without roads, there would be far fewer automobiles. And, vice versa, without automobiles, there would be far fewer roads built. Thus, those two services compliment and benefit each other.

    An example of a parasitic service is one that derives its customer base off of the work or content of another. An example of this could be P2P. The Pirate Bay, for example, obtains advertising dollars when people visit to obtain content owned by someone else. And generally, users searching for content at Pirate Bay does not benefit the content industries. In fact, they leach off those industries.

    In this case it is clear that any publication of the Harry Potter Lexicon would compliment J.K. Rowling's books. People would have to read J.K. Rowling's books to be entertained by the stories but would read the Lexicon to have a resource of facts from the stories. To put it simply, anyone who would buy the Lexicon and not J.K. Rowling's books probably would not have bought J.K. Rowling's books in the first place.

    It would be as if the television networks sued TV Guide for copyright infringement. It's possible to use TV Guide as a replacement for actually watching television programs, but I would guess it rarely happens.

     

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    Jason, Apr 16th, 2008 @ 8:18am

    Re: Re: It's stealing, plain and simple

    There is likely a lot wrong with my first comment LOL but the case is in NY, NY, USA so US laws are in effect and thus first ammendment rights. If the case were in the UK then I agree with you.

     

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    DanC, Apr 16th, 2008 @ 8:29am

    Re: Re: Guides

    Just because the owners of the copyright of Star Wars, Star Trek and other stuff don't stand up does not make what Steve and his publishing company are doing legal.

    Of course, the reason the copyright holders of those other properties don't "stand up" just might be because it isn't illegal.

     

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    Anonymous Coward, Apr 16th, 2008 @ 8:34am

    It would be really fun if JKR produces her own lexicon and copies from this one. Then the original lexicon writer could sue JKR for copyright infringement.

     

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    chris (profile), Apr 16th, 2008 @ 8:35am

    JKR killed fred

    i hope she burns in hell.

     

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    Ace, Apr 16th, 2008 @ 8:37am

    Really, shes not a business person then huh...

    Maybe I am being a Jackass, but earth to JK Rowling, inpersonation is a form of flattery. Also the books have taken on a life of thier own, with fans apprently wiling to spend thier time composing a manual, or Lexicon. Would a better strategy be to be part of the process, license the use and images, offer editing, you know colaborate and correct things and take a percentage cut for ole time sake! Your a Billionaire now, this would hurt you just grow the universe and eventually make you more and more...
    Nope there in court trying to strangle off something they should be embracing

     

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    bshock, Apr 16th, 2008 @ 8:41am

    if i ever had any interest in this person's work, i've lost it

    Ms. Rowling has more money than the Queen of England (literally). She's known and loved by millions. She gets to sit at home all day and make up stories for a living. What could she possibly have to cry about?

     

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    Ima Fish, Apr 16th, 2008 @ 8:46am

    What could she possibly have to cry about?

    Since when did a woman ever need a reason to cry?

     

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    Anonymous Coward, Apr 16th, 2008 @ 8:46am

    Re: Harry Potter Wannabe's

    From what I understand the guy who wrote the book even felt like it was copy right infringement and made sure his contract when selling the book to the publisher included a comment freeing him from any responsibility and that the publisher understood how he felt.

     

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    Beefcake, Apr 16th, 2008 @ 8:58am

    If it's deviant to make derivative works...

    ...why is every argument nothing but an emotional attempt at diversion rather than based on logic or legality?

     

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    Sean (Ireland), Apr 16th, 2008 @ 9:06am

    ABKCO vs. Richard Ashcroft, anyone?

    Isn't this more of less the same situation as when Richard Ashcroft got permission to use a sample of a Rolling Stones song, turned it into a hit single, and then got sued and lost?
    The new song wasn't sufficiently original, and even though the copyright owners had previously given permission, they still won?
    I reckon JK is onto a winner here - crocodile tears or no. Running a fan website is one thing, publishing a book based entirely on the work of another author is way out of bounds.
    BTW, can't stand the books, they're stupid. People should read Terry Pratchett instead, and maybe learn a little something.

     

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    Anonymous Coward, Apr 16th, 2008 @ 9:08am

    Re: Re: Harry Potter Wannabe's

    From what I understand the guy who wrote the book even felt like it was copy right infringement...

    Even if true, that wouldn't make it so. Feelings aren't law.

     

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    Reverend Joe, Apr 16th, 2008 @ 9:10am

    Re:

    > ... authors have a responsibility to defend their own copyrights, ...

    Bollocks, WTF do you get that idea? There is no "responsibility" for an author to defend their copyrights; never has been. Not in US law, anyway, and since our copyright laws were pretty much lifted wholesale from the English "Statute of Anne" rules, I seriously doubt there is any such OBLIGATION for authors under UK law, either.

    This is the problem with the term "Intellectual Property", and why it should NEVER be used. You've obviously heard of the obligation of someone who has been granted a trademark to defend that trademark, or lose it, and then conflated that concept into some sort of notion that authors are perforce required to "defend their own copyrights".

    Nonsense; JKR is free under nearly all of the world's copyright laws to allow some fan fiction (obviously derivative works) and not allow others, and also to allow or not allow works like this encyclopedia, if it, in fact is also a derivative work, as you say it is.

    > 90% of the words in the Lexicon are lifted word for word [from] the books.

    Heh. I haven't seen this so-called "Lexicon", but if what you say is true, this gives rise to an interesting question about what exactly JKR thinks of the quality of her own work, if she is protesting this work on the grounds that it is "low-quality", and 90% of the words are hers.

    Sticky legal questions aside, I think this whole discussion misses the overarching point of most of the discussions on this site, which is, is it really in JKR's, or ANY author's, BEST INTERESTS to cherry-pick the "bad" derivative works for persecution, or, rather, should she / they simply allow the "industry" around derivative works flourish, in order to drum up more interest in, and sales of, their own work?

     

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    Petra Mitchell, Apr 16th, 2008 @ 9:15am

    It's WB, not Rowling

    RDR is being sued by Warner Brothers, not J. K. Rowling. (If you check the copyright notice on your copy of Goblet of Fire or the later books, you'll see that WB claims ownership of all the intellectual property associated with Harry Potter save the text of the books themselves.) Whatever ridiculous IP-related statements she may make are based on what WB's lawyers tell her.

     

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    Petra Mitchell, Apr 16th, 2008 @ 9:17am

    The judge says it's iffy

    As for whether this is fair use or not, the judge has already given a preliminary opinion that the case is in a grey area and could go either way.

     

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    Anonymous Coward, Apr 16th, 2008 @ 9:19am

    Re: Harry Potter Wannabe's

    He's actually a librarian and set up the lexicon in his spare time.

    And, as others have stated, you don't need permission. Copyright doesn't extend to guidebooks or compilations of information. The point isn't that we should feel for Rowling or decide whether it's right or wrong, it's decide what's legal and what's not. And it's not legal for her to stop him from publishing, or sue him in the future.

     

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    Anonymous Coward, Apr 16th, 2008 @ 9:27am

    Re: It's stealing, plain and simple

    But to add no personal value and no creativity and to simply steal another's work is wrong.

    JKR has been going around crying "theft" but did JKR file a criminal theft complaint with the police? No, she did not. Why not? Perhaps because she knows no theft occurred? So, if JKR is claiming something that even she knows to be untrue, what does that make her? Several words come to mind, none of them very flattering.

    I mean I must be missing something here? Is this site supporting sonmeone who uses another's work as their own?

    Has the author of the guidebook claimed Harry Potter to be his own work or are you being a little less than honest yourself?

     

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    Ima Fish, Apr 16th, 2008 @ 9:37am

    Re:

    "You are clearly missing one important fact -- derivative works have to include substantial scholarly analysis in order to not violate the copyright."

    Not true. See my comment in 22. Does TV Guide provide a "substantial scholarly analysis" concerning the television programing information it provides? No. That is why no one is claiming that TV Guide violates the copyrights of the television broadcasters.

    The Lexicon is not even a derivative work which has to be primarily a new work which incorporates some previously published material. There is no "new" work here. The Lexicon is merely a collection of "facts" from the Harry Potter series.

     

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    Anonymous Coward, Apr 16th, 2008 @ 9:42am

    Re: It's WB, not Rowling

    Whatever ridiculous IP-related statements she may make are based on what WB's lawyers tell her.

    Isn't it illegal for lawyers to tell witnesses to say things under oath that they don't believe to be true? So, you're saying that WB's lawyers and JKR have conspired to commit perjury? Wow.

     

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    Selina, Apr 16th, 2008 @ 9:47am

    Re: Sean(ireland)

    Dont need u pushing Terry Pratchett. What r u getting paid for advertising? If ur not a fan why'd u read it in the first place. Who said u have to learn anything from fiction it's all fun! Isn't Terry ficiton? Yea ok!

     

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    Anonymous Coward, Apr 16th, 2008 @ 9:54am

    Do your homework

    It's not about copyright. They're not claiming that it doesn't violate the copyright on the books. They're claiming that it's covered by Fair Use.

    Also, Steve is 50 years old and has been working on this for over seven years.

    JKR needs to grow up and stick to the facts of the case and stop threatening to not write anymore. Plain and simple all her creative 'juices' were used in the Potter books and she's looking for an excuse to not have to write anymore because she can't. Also, she knows that the Lexicon encyclopedia will be a lot more organized and accurate than her own.

     

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  43.  
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    Ryan, Apr 16th, 2008 @ 9:56am

    Maybe Not infringement

    It is infringement, because she did have a copyright on the name "Harry Potter." I agree that she is NOT a lawyer, but she does have a right to be upset at someone else making money on her hard work.

    She poured her heart and soul into these books, and (like it or not) someone who throws it all together in a week from her creativity which was years in the making and makes a killing on it.

    It would be like spending 10,000 and 5 years of your time inventing a widget, just to have someone a week later make a very similiar widget for $10 and promote it with your widgets name and make millions. How would you feel?

     

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  44.  
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    Petréa Mitchell, Apr 16th, 2008 @ 10:00am

    Re: Re: It's WB, not Rowling

    "So, you're saying that WB's lawyers and JKR have conspired to commit perjury?"

    Nope, I'm saying WB's lawyers have given Rowling an interpretation of US copyright law, and she believes it, and says it in all honesty. Just as Vander Ark relied on RDR's legal advice when he signed the contract with them.

     

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  45.  
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    Petréa Mitchell, Apr 16th, 2008 @ 10:04am

    Re: Maybe Not infringement

    "It is infringement, because she did have a copyright on the name 'Harry Potter.'"

    No one has a copyright on the name "Harry Potter". There is a trademark on it, but it's owned by WB.

    "It would be like spending 10,000 and 5 years of your time inventing a widget, just to have someone a week later make a very similiar widget for $10 and promote it with your widgets name and make millions."

    More like someone creating a manual for it. The amount of quotage in the print version of the Lexicon is vastly reduced from the amount on the Web site.

     

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  46.  
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    amalyn, Apr 16th, 2008 @ 10:29am

    Re: Re: trademark worth a try?

    The 'donate to charity' comment is based upon her previous two auxiliary works - Fantastic Beasts and Where to Find Them, and Quidditch Through the Ages - were sold with profits going to charity - specifically through Comic Relief in the UK.

    Rowling had informed the fandom in the past that she intends to create an encyclopedia reference to aspects of the world she has created within the Harry Potter novels, and that it would be sold to support Comic Relief.

    The Lexicon's content is really interesting to consider, as how much of it was derived from the novels versus other' analysis - and whether the analysis has been credited correctly. I have not gone through every single page of the lexicon, as it is a lot of material. However, I have experienced in the past having my analysis lifted and essays plagiarized by others within the fandom - and not realizing until fans of the plagiarists accused me of plagiarizing, despite my postings having a much earlier timestamp.

    As for franchise -- I'd honestly like to see WB work out something for really dedicated fans to be able to write supportive works, that add to the universe - i.e. texts, historical accounts - that are approved and checked for continuity.

     

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  47.  
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    Severus Snape, Apr 16th, 2008 @ 10:34am

    Re: Re: Re: It's stealing, plain and simple

    Exactly what in the First Amendment covers copyrights? "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Nothing. Learn your own laws before publicly comment on them and make a fool of yourself in the process.

     

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  48.  
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    Jason, Apr 16th, 2008 @ 10:43am

    Re: Re: Re: Re: It's stealing, plain and simple

    The first ammendment covers "satire and parody" so any tom, dick or harry can parody Harry Potter and sell that book because that right is protected.

    However my research says Jo is in the right here. She owns her characters and no person can use that character for their own gains UNLESS they parody, satire etc.

    This author is using her characters, without change to make his own profit.

    Sorry, but that is wrong IMO and does not allow an author to protect their "work". After Jo dies, and 70 years passes then people can re-use her characters as they are now part of the public domain.

    What would happen if you used Mickey Mouse in a book? Disney would own you. Same here, Harry is Jo's and no one elses to use.

     

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  49.  
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    bob bobersome, Apr 16th, 2008 @ 11:23am

    Re: Harry Potter Wannabe's

    I think that permission was implied when they flew the dork to the latest movie and used him and his book in making those movies. When the supposed author herself used his website for her own use.

    One, I am happy to say I have never read her book, or seen a single movie. I wonder why I have not seen these types of cases before when people without permission create almanacs for Narnia and LOTR, Star Wars, Star Trek, Matrix.
    If she and her representatives had the slightest business acumen, they would have signed this guy to a contract and released his book as an official book for the series.
    Since she is bored with the series she could also support fan fiction using secondary characters, like other popular mythos owners have done.

    It appears to me, she had planned on writing a book like this herself, so it is a ploy to stifle trade so she can create one herself. I would not have been shocked if in her mind she had planned to use his site as a resource for that book, since she feels all his content was just hers anyways. That is just conjecture though.

     

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  50.  
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    Anonymous Coward, Apr 16th, 2008 @ 11:30am

    Re: Maybe Not infringement

    ...she does have a right to be upset at someone else making money on her hard work.

    No, she doesn't have any such right. She does seem to think though that she has a right to be paid for the work of the author of the guidebook. Hypocritical, no?

    It would be like spending 10,000 and 5 years of your time inventing a widget, just to have someone a week later make a very similiar widget for $10 and promote it with your widgets name and make millions.

    Or someone making and selling automobile accessories to enhance an automobile? Or someone making and selling computer programs to enhance a computer? I don't think those kind of things in any way infringe the rights of the original manufacturers. You may think so but the law disagrees.

    And if you're trying to claim that the guidebook is so "very similar" to the original books that people would buy it instead of the original books then I'm saying that you're either being dishonest or you're out of your mind.

    You seriously need to learn how free markets work.

     

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  51.  
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    Erv Server, Apr 16th, 2008 @ 11:40am

    money hungry

    no matter how much money she has she isn't happy. She needs to talk to Dr Phil

     

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  52.  
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    jonnyq, Apr 16th, 2008 @ 11:46am

    "Prima" publishes "unofficial" guidebooks to many video games.

     

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  53.  
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    Brian, Apr 16th, 2008 @ 11:47am

    Re: Harry Potter Wannabe's

    Very simply, if JKR was fine with the website but not the book, she is a hypocrite.

    Just because something is in paper instead of the internet doesn't change its status as copyright infringement.

    Either the website is also illegal or neither are.

    Also, Chris (who I'm replying to) is ignoring Masnick's point that the Lexicon is providing a SERVICE. It's not STEALING content, just giving you a method of viewing the content.

    If JKR herself actually used the Lexicon and it helped her in the creation of the later books, does that not mean SHE is infringing on the Lexicon creator's service by using it in her books? (assuming that the Lexicon itself did not infringe)

     

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  54.  
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    DanC, Apr 16th, 2008 @ 12:05pm

    Re: Re: Re: Re: Re: It's stealing, plain and simple

    The first ammendment covers "satire and parody"

    This author is using her characters, without change to make his own profit.

    Actually, it's the principle of fair use that covers the use of copyrighted works for a variety of purposes, including satire and parody. It also makes allowances for research, scholarship, and commentary among others.

    The question is whether the lexicon copies a significant enough portion of the work to constitute infringement. After taking a quick look at some of the entries off the website, it doesn't appear to be all that different from the multitude of other guidebooks I've seen. I certainly don't see anywhere near the vaunted '90%' copied material.

    She owns her characters and no person can use that character for their own gains

    Warner Bros. owns all IP related to Harry Potter with the exception of the books.

    What would happen if you used Mickey Mouse in a book? Disney would own you

    A hypothetical situation does not contradict the numerous examples to the contrary. While I'm certain that Disney would file a lawsuit if an unauthorized encyclopedia of Disney characters were published, it is by no means certain that Disney "would own you." As noted, there are plenty of unauthorized reference books ranging from Dr. Who to Star Trek to Middle Earth, all of which cover copyrighted material. The assertion that an unauthorized guidebook cannot be published if it uses copyrighted characters is simply incorrect.

     

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  55.  
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    Mike (profile), Apr 16th, 2008 @ 12:11pm

    Re: It's stealing, plain and simple

    I have no issues with the site and I have used it in the past, but this author is basically using her content, her characters and her books to restate the same material in a reference format.

    It's that last part that's important. IN REFERENCE FORMAT.

    In other words, the Lexicon is something different, made more useful for reference purposes. The value is not the *content* but the *format*.

    I mean I must be missing something here? Is this site supporting sonmeone who uses another's work as their own?

    No one said that he was implying HP content is his own. It's quite upfront what's being done.

    What we're saying is there shouldn't be anything wrong with making someone else's content *more useful*.

     

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  56.  
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    Kristin, Apr 16th, 2008 @ 12:23pm

    Re: Re: Ima Fish

    Ima Fish wrote: "The Lexicon is not even a derivative work which has to be primarily a new work which incorporates some previously published material. There is no "new" work here. The Lexicon is merely a collection of "facts" from the Harry Potter series."

    And facts about fiction are not copyrightable. For example, under the entry Harry Potter, you could write: "A wizard who was orphaned at a young age and sent to live with his aunt and uncle by Dumbledore." Or something like that. And it's allowable.

     

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  57.  
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    Jaisne Blue Sexton, Apr 16th, 2008 @ 12:42pm

    Considering the murky origins of the original Harry Potter novel - and yes I know she defeated the person who sued her claiming she stole the material - she's really got a lot of nerve.

     

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  58.  
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    daretoeatapeach, Apr 16th, 2008 @ 1:45pm

    What is considered "copying" is an important legal distinction

    I am not a lawyer but I do work in a publishing house that has jumped through legal hurdles to publish an HP-related book. Creating a dictionary involves more than cutting and pasting. The editorial process of indexing and organizing each word is lengthy and not to be trivialized. Furthermore, if you take the time to visit the website (www.hp-lexicon.com) you will see that the content is original. For example, (from the site) "banshee - Rating Unknown (PA7, GF21, FB) A Dark creature with the appearance of a woman with floor-length black hair and a skeletal, green-tinged face. Its screams will kill. Seamus Finnigan is particularly afraid of banshees (PA7). The Bandon Banshee was supposedly defeated by Gilderoy Lockhart (CS6) but was actually defeated by a witch with a hairy chin (see CS16). The singer Celestina Warbeck performs with a backing group of banshees (DP)." Clearly this is not the text from the book but a definition of the word "banshee". The copywrite protection is to protect from someone else selling a book that steals sales of your book, for example, condensing it or changing the names and selling it cheaper. Obviously, this book wouldn't take sales away from any of the existing HP books. It may take sales away from the Encyclopedia that she hasn't written yet--there's the rub! The years it took for the lexicon to evolve naturally indicate that it may be as good, at least from an organizational perspective, as Rowling's own Encyclopedia. Dictionaries, after all, don't call for much in the way of creativity. I don't believe that she would be making such a fuss unless she thought it to be an actual threat to her book. But that book hasn't been written yet. She is trying to apply the copywrite of her existing book to the sales she things she will lose on her forthcoming book. While this is unlikely, I can see her up at night worrying that her book won't be as comprehensive as the Lexicon that already exists. Which, when you come down to it, means that she has gotten used to having no competition and feels that she should not have to compete when it comes to characters she created. Unfortunately for her, the U.S. (I believe the Lexicon is an American site, though I may be wrong) system loves competition. She can cry all she wants but that doesn't mean she has a case. Personally, I used to be a fan of Rowling (as a person, not just her books) but her claims that this case has forced into some kind of dramatic writer's block disgust me. I suppose she'll have to take to drugs like all the other great writers out there. Or maybe stop surrounding herself with lawyers and yes-men that coddle her. Sorry this is so long! It should be a damned blog!

     

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  59.  
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    Ima Fish, Apr 16th, 2008 @ 1:48pm

    Re: Re: Re: Ima Fish

    Exactly, this would be like arguing that Rolling Stone music reviews were somehow derivative works of the underlying songs. Talking about a work is different from expanding upon a work.

     

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  60.  
    identicon
    Anonymous Coward, Apr 16th, 2008 @ 5:44pm

    Re: Re: Re: It's WB, not Rowling

    Nope, I'm saying WB's lawyers have given Rowling an interpretation of US copyright law, and she believes it, and says it in all honesty. Just as Vander Ark relied on RDR's legal advice when he signed the contract with them.

    OK then, when JKR testifies that RDR "stole" her works she is only repeating what WB's attorneys have told her? In that case then WB's attorneys would have to be either dishonest or all totally unaware of the Supreme Court ruling that said copyright infringement is not theft. Which do you contend that it is?

    And how do you claim to know what is going on between WB's attorneys and JKR? I'm beginning to suspect that you're just making stuff up.

     

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  61.  
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    oregonnerd, Apr 17th, 2008 @ 5:34am

    Re: Guides

    I have it. Let's 'copyright' the comments in the forum, and...well, I guess we'll have to leave it to Mike for the details.
    --Glenn

     

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  62.  
    identicon
    Anonymous Coward, Apr 17th, 2008 @ 7:03am

    Re: Re: It's stealing, plain and simple

    What we're saying is there shouldn't be anything wrong with making someone else's content *more useful*.

    But only if the creator / copyright holder grants you permission to make his or her content 'more useful.'

     

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  63.  
    identicon
    DanC, Apr 17th, 2008 @ 8:02am

    Re: Re: Re: It's stealing, plain and simple

    But only if the creator / copyright holder grants you permission to make his or her content 'more useful.'

    Except as allowed by fair use, which, as previously stated, makes allowances for the transformative use (such as a reference book) of copyrighted works without the need for the author's permission.

     

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  64.  
    icon
    Mike (profile), Apr 17th, 2008 @ 10:11am

    Re: Re: Re: It's stealing, plain and simple

    But only if the creator / copyright holder grants you permission to make his or her content 'more useful.'

    Why should someone need permission to make something useful?

     

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  65.  
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    kirsty, Apr 17th, 2008 @ 10:51am

    i think JKR is right to pursue this as hp is her world that she created and gave up part of her life to getting it published, why should someone be able to make money of somthing that they had nothing to do with!

     

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  66.  
    identicon
    Anonymous Coward, Apr 17th, 2008 @ 11:24am

    Re: Re: Re: Re: It's stealing, plain and simple

    Why should someone need permission to make something useful?

    That's not the question. The question is, why should the copyright holder grant you any rights to reproduce the work in question? He or she decides how to make the work useful, not you.

     

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  67.  
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    Petréa Mitchell, Apr 17th, 2008 @ 11:54am

    Rowling not opposed to making her work more useful

    Stop the presses! The New York Times reports that on the last day of the trial, Rowling said, "I never ever once wanted to stop Mr. Vander Ark from doing his own guide never ever ... Do your book, but please, change it so it does not take as much of my work."

    So she's apparently not opposed to the general idea, just under the impression that if one book gets out with too much quotage, suddenly she will lose control of everything.

     

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  68.  
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    DanC, Apr 17th, 2008 @ 11:58am

    Re: Re: Re: Re: Re: It's stealing, plain and simple

    why should the copyright holder grant you any rights to reproduce the work in question

    Fair use makes allowances for derivative works of a transformative nature. Therefore, a reference book, such as the lexicon in question, is covered by fair use. Permission is not needed, and the copyright holder has no say in the matter.

    The crux of the lawsuit seems to rely more on whether the lexicon contains an excessive amount of verbatim quotes from the novels than the legality of an unauthorized guidebook. If the lexicon contains whatever the court determines as "excessive" quotes from the novels, than it may be violating copyright. But it is hardly illegal to release a reference book based on copyrighted material.

     

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  69.  
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    Mike (profile), Apr 17th, 2008 @ 12:06pm

    Re: Re: Re: Re: Re: It's stealing, plain and simple

    The question is, why should the copyright holder grant you any rights to reproduce the work in question? He or she decides how to make the work useful, not you.

    Why should it be their right in the first place? You're not taking anything away from them in making their work useful.

    If we always had to ask for permission before making anythign else useful, no work would ever get done. The economy would grind to a standstill.

    Google certainly wouldn't work, because it would have to ask permission of every site it searched and indexed. Newspapers would need to ask permission from all participants before writing a news story. Travel guides would need to get permission from each business they review.

    That's not exactly a reasonable world.

     

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  70.  
    identicon
    Madfoot713, Apr 17th, 2008 @ 8:09pm

    Re: The real issues

    "Before you flame me, put yourself in her shoes. If YOU had something you had created, how happy would you be if someone essentially took out all of the pages and just re-organized them?"

    As a writer, how would I feel if someone took my content and made an encyclopedia of it? ...Jeez, I'd probably be honored.

     

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  71.  
    identicon
    Willton, Apr 17th, 2008 @ 11:16pm

    Re: Re: Re: Re: Re: Re: It's stealing, plain and simple

    Why should it be their right in the first place? You're not taking anything away from them in making their work useful.

    Wrong: you're taking away the author's right and ability to create derivative works. And why does that right exist? Because Congress says so.

    You may say that Congress shouldn't say so, but Congress has an interest in encourging the creation of original works. However, it is much easier for an individual to create a work derivative from an existent work than it is to create an original work, as the amount of effort needed creating the derivative work is lessened by the already existent basis for the work. If a copyright holder did not have the right to control works derivative from his copyrighted work, then 1) more people would be inclined to create derivative works as opposed to original works, and 2) the original copyright owner would derive less value from his original work, thus discourging him to a degree from creating another original work. Congress likely did not view this consequence as beneficial, so it decided to secure the right to create derivative works to copyright holders.

     

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  72.  
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    Mike (profile), Apr 18th, 2008 @ 2:48am

    Re: Re: Re: Re: Re: Re: Re: It's stealing, plain and simple

    Wrong: you're taking away the author's right and ability to create derivative works. And why does that right exist?

    Not at all. Nothing in that takes away the right or the ability of the author to create a derivative work. I'm confused as to why you would suggest otherwise.

    Because Congress says so.

    Congress has said lots of dumb things...

    You may say that Congress shouldn't say so

    Indeed...

    but Congress has an interest in encourging the creation of original works.

    Indeed. But stopping these types of works doesn't do that.

    However, it is much easier for an individual to create a work derivative from an existent work than it is to create an original work, as the amount of effort needed creating the derivative work is lessened by the already existent basis for the work.

    I think you're selling derivative works short here. Recognize that almost *every* bit of content these days is a derivative work in some form or another. Can you even find a work done by Disney that doesn't bite off of someone else's work?

    Congress has an interest in having people create new content, but that INCLUDES works built on the work of others.

    If a copyright holder did not have the right to control works derivative from his copyrighted work, then 1) more people would be inclined to create derivative works as opposed to original works,

    Which would only suggest that you're doing quite well. Those derivative works will only really occur if the original has something worthwhile. It helps to promote it.

    See the fashion industry and the studies on why it's thriving *because* of knockoffs to see how this works in practice.

    2) the original copyright owner would derive less value from his original work, thus discourging him to a degree from creating another original work.

    Again, in practice this is not true at all. The fashion industry has shown exactly the opposite. The knockoff content helps INCREASE the amount of value that the original creator can derive from his or her work, and it INCREASES the incentive to create new original works to stay ahead of hte curve and to derive more value.

    Congress likely did not view this consequence as beneficial, so it decided to secure the right to create derivative works to copyright holders.

    Only because Congress apparently does not understand the economics of what happens in these types of markets.

     

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  73.  
    identicon
    Anonymous Coward, May 9th, 2008 @ 7:23pm

    Re: Maybe Not infringement

    Ryan,

    You can't COPYRIGHT a name. You can try to get a TRADEMARK for a name.

    Feelings have nothing to do with the law.

    Patents protect widgest. And yes, it happens. It's call independant invention. And it is no defense for infringement. So if I invented it first I can patent it. Time for a lawsuit.

     

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  74.  
    identicon
    Aoresteen, May 9th, 2008 @ 7:32pm

    Re: this is a joke

    Mike,

    Don't spread false informatiom. You know nothing a bout copyright law.

    Yes it is illegal to use characters of a copyrighted book without permission. An author has all rights to derivative works. Title 17 Section 106 para 2.

    http://www.law.cornell.edu/uscode/17/usc_sec_17_00000106----000-.html

    Sherlock Homes is in the Public Domain. The Saint TV show was authorized by the coyright holder for a fee.

     

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