Neil Gaiman On JK Rowling, Fair Use And The Flattery Of Derivative Works

from the flattery-will-get-you-everywhere dept

Copyfight points us to a fun blog post from Neil Gaiman where he discusses the lawsuit involving the “Harry Potter Lexicon” that JK Rowling is so upset about. He makes a bunch of good points about fair use and derivative works, saying that he’d be flattered if someone had done something similar with his works, and also notes that his own first books probably could be found as violating copyrights as well, and he’s happy that no one acted like Rowling in trying to sue him for his work:

Lots of emails from people asking me to comment on the JK Rowling/ Steve Vander Ark copyright case. My main reaction is, having read as much as I can about it, given the copyright grey zone it seems to exist in, is a “Well, if it was me, I’d probably be flattered”, but that obviously isn’t how J.K. Rowling feels. I can’t imagine myself trying to stop any of the unauthorised books that have come out about me or about things I’ve created over the years, and where possible I’ve tried to help, and even when I haven’t liked them I’ve shrugged and let it go.

Given the messy area that “fair use” exists in in copyright law I can understand the judge not wanting to rule, and assume that whatever he says the case will head off to the court of appeal.

My heart is on the side of the people doing the unauthorised books, probably because the first two books I did were unauthorised, and one of them, Ghastly Beyond Belief, would have been incredibly vulnerable had anyone wanted to sue Kim Newman and me on the grounds that what we did, in a book of quotations that people might not have wanted to find themselves in, went beyond Fair Use.

He also goes on to note, if somewhat tangentially, that others have accused Rowling of copying his own works — specifically The Books of Magic that involve a young magician “with potential” who (at one point) goes off to a magic school. Gaiman points out that he does not believe Rowling took the idea from him (or even that she read his works), but that people writing within a certain genre are always going to overlap with ideas — some of which they glean from others and some of which they come up with themselves. And that’s a good thing. It’s only in this unfortunate era when people seem to think that all ideas must spring brand new from a virgin mind that the ideas of sharing, building on the works of others and creating new derivative works are seen as being bad.

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Comments on “Neil Gaiman On JK Rowling, Fair Use And The Flattery Of Derivative Works”

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56 Comments
Andrew Peterson says:

genre vs specifics

I’m gonna have to side with Rowling on this one. It’s not that a specific genre is overlapping, or that ideas are being borrowed. The entire book is based off of, and using direct quotes from Rowling’s work.

If you were to create a Star Wars Encyclopedia, Lucas would hang you high. If you created a book about a rebellion with main characters having mystical forces and follow all the other suggestions from Joseph Campbell, you would blend in with the 1000’s of other stories like this. No big deal.

The issue is with specifically using Rowling’s works to make a profit. And for that, she should have the final say on what is done with her works.

Pete Valle (user link) says:

Re: genre vs specifics

There a a whole lot of unauthorized Star Wars books out there, specifically encyclopedia-type books and trivia books. I’ve also seen unauthorized Harry Potter reference books before, so I don’t see the hoopla about this one, unless its that Rowling and co. were planning to release their own when this one came to light.

nipseyrussell says:

Re: genre vs specifics

“The entire book is based off of, and using direct quotes from Rowling’s work…The issue is with specifically using Rowling’s works to make a profit. And for that, she should have the final say on what is done with her works.”

i see no reason this should be. who cares if someone is “profiting off someone else???” this is not taking a single dime away from rowling. you think her fans wont buy her books because some no name wrote a book based on her ideas. ridiculous

Anonymous Coward says:

Re: genre vs specifics

I think the thing to consider is not whether someone else is profiting from her work. Undoubtedly they would be. The questions should really be – does the derivative work impede Rowling’s ability to sell her own product. In this case, I think JK is safe as houses. I have read all the books and have loved every single one. A “lexicon” would be a neat thing for a fan to have. Same as a bibliography or lyrics book for a favourite band.

I think the impression she’s giving here is that this work will detract from her own work and certainly it will not.

Mike (profile) says:

Re: genre vs specifics

I’m gonna have to side with Rowling on this one. It’s not that a specific genre is overlapping, or that ideas are being borrowed. The entire book is based off of, and using direct quotes from Rowling’s work.

Again, people seem to get blinded by the content, and miss the fact that the *value* is clearly not in the content. If it were, then no one would by the Lexicon. Why would they? The content is already out there.

The *value* is in the *organization* of the content — and that’s new to this book. That’s not Rowling’s work.

So why do people get so upset by this?

Matt says:

Re: Re: genre vs specifics

100% agreed.

Also note: if Rowling wins this case, it has a bit of really bad legal precedents it could be setting. Specifically when it comes to video game guides and whatnot as well, not by name of guide, but by organization.

I really hope Rowling’s publisher can remove the Harry Potter broomstick from her ass.

neil says:

Re: Re: genre vs specifics

Mike you cant switch arguments.

you argue that the value is not in content or in the orginization of it.

for you the value is in advertising and only advertising.
Everything must be free and we will all profit from the advertisers.

respond when you figure out the flaw in your free market concept.

Mike (profile) says:

Re: Re: Re: genre vs specifics

you argue that the value is not in content or in the orginization of it.

Hmm? Not at all. I’ve always argued that the value is in the organization. When have I said otherwise.

for you the value is in advertising and only advertising.

Again, not at all. If you look at my posts on business models, I explain why advertising is *not* always the right business mdoel.

Everything must be free and we will all profit from the advertisers.

Again, not at all. In many cases, advertisements are a bad way to monetize.

Please do not ascribe to me positions I have not taken.

Deb (profile) says:

Re: Re: genre vs specifics

I dunno, but I would be pretty upset if I spent a decade of my life creating these ideas, nurturing them, devoting countless hours to make them come to a life on the page…

…only to have someone lift whole passages without credit and print them presented as his original research and conclusions which is what the fan in question is doing.

If he used small parts of the descriptions and then followed with critique or expanded based on his view and interpretation, I would have no problem with it. But that isn’t what he’s doing.

He pulls entire passages from the books without changing a word, doesn’t cite what book or what page and which edition, that’s a problem. He’s presenting her work as his own simply by organizing it in reference form.

That’s copyright infringement. Not flattery.

“Copyright infringement is a violation of the rights of the copyright holder, when material is used without the copyright holder’s consent.”

He’s taking material (names, items, full passages from the books wherein the item/person is described) from the books, directly.

If he were to interpret it and write a different, non word for word description, I’d support him. But the way he’s done it, I won’t.

ehrichweiss says:

Re: Re: Re: genre vs specifics

“He pulls entire passages from the books without changing a word, doesn’t cite what book or what page and which edition, that’s a problem. He’s presenting her work as his own simply by organizing it in reference form.”

You do realize that he couldn’t cite what page these were from because there are hardbacks/paperbacks and there are massive differences in U.S vs U.K. editions as well. The book it was in would be helpful(I don’t know anything about it..I hate Horny Porter personally) but I don’t think it’s necessary by any means.

Cygnus says:

understanding copyright law and flattery

Mike,

You seem to get the “idea/expression dichotomy” of copyright law when it suits your needs and forget it when it doesn’t. In another context, you would have responded to “He also goes on to note … that others have accused Rowling of copying his own works … that involve a young magician ‘with potential’ who (at one point) goes off to a magic school” by correctly noting that copyright does not protect and idea; it only protects the expression of an idea.

Also, this entire copyright-infringement-as-flattery argument is lost on me. Flattery doesn’t pay the bills. Flattery in this sense really means riding someone else’s coattails without their permission and without paying for the ride.

C

chris (profile) says:

Re: understanding copyright law and flattery

this entire copyright-infringement-as-flattery argument is lost on me. Flattery doesn’t pay the bills. Flattery in this sense really means riding someone else’s coattails without their permission and without paying for the ride.

JKR *totally* has to worry about paying the bills, i mean this guidebook is going to sell one millionth of the number of books that the harry potter series has sold, so clearly her ability to pay bills is in danger.

thank god the richest woman in england has you looking out for her welfare.

Anonymous Coward says:

Re: understanding copyright law and flattery

Let’s say I write a big encyclopedia on Gaiman’s works; pick whichever one suits your fancy. I take direct quotes, piece together information from his different books, and maybe (but not necessarily, if you hold it would ruin my analogy to the Vander Ark bit) extrapolate to fill in the empty spaces. I publish it and sell it and it gets to be really popular. Maybe I make a lot of money.

Now, I submit there are three people who will have read and bought my book: those who read gaiman’s books, those who hadn’t read his works but were directed toward them after discovering his world through me, and those who hadn’t read his works but decided after reading mine they didn’t care for it anyways.

The first group has already benefitted Gaiman, and if I’m ‘riding his coat-tails,’ it’s only because I’ve offerend the information in a useful way that hadn’t been available before. (Mike will note how significant ‘Official’ is in these cases, and Gaiman could still make an Official Encyclopedia that would likely trump mine.

The second group didn’t know about Gaiman’s works before I introduced them to the world. Maybe they’d seen his books on the shelf, maybe not, but he was an unknown quantifty. As a fan, I’ve explained to them in my book what I love so much about Gaiman’s works and having discovered this world, they go out and buy his series. You can’t say I’m riding his coat-tails if my audience has never read him, and what’s more I’m just directed new readers his way. I’ve benefitted him.

The final group is those who read my book and DON’T go on to read his series. As my encyclopedia is decidedly not the same thing as a narrative story, the only conclusion to be drawn is that they don’t care for Gaiman’s work and, as such, wouldn’t have bought his series anyways. As above, I can’t be riding his coat-tails if my audience is not already his fans. What’s more, I haven’t hurt him because these people who didn’t buy wouldn’t have bought even in my absense. And if you allow for direct quotations in my encyclopedia, you can’t argue that it’s my poor portrayal of his works that turned off prospective readers: if they liked his writing, they would have checked out the books.

Motown says:

Re: Re: understanding copyright law and flattery

As a musician (read: poor), I love the idea of using being able to use open source/ public domain stuff without having to pay for it (check out my screen name). On the other hand, as a songwriter who one day hopes to profit from my craft, copyright infringement is taking food out of my mouth. That, I feel, is the real issue at stake. Those who accuse Rowling of being greedy are probably right, but her insistence on controlling how her creative work is used also helps protect the millions of authors, songwriters, painters, etc. who aren’t so rich and who stand to lose big time.

Gaiman appears to be in a position where he can afford to have his work ‘ripped off’. Many, though, can’t. History (particularly the music industry) is full of examples where the people who did the remake, version, or other derivative work made millions, but the one who penned (painted, or sang) the original receives little (Consider, who wrote Twist and Shout? It wasn’t The Beatles).

Yes, I’m as annoyed as the next guy at the greedy rantings of the George Lucases and JK Rowlings of the world when they cry, “Copyright infringement!” None-the-less, their rantings and insistence on the law can help the little guy protect him or herself from the predatory practices of those who would like to profit from their work without paying for it (or at least asking permission)

Anonymous Coward says:

Re: Re: Re: understanding copyright law and flattery

You make a wonderful point regarding musicians and covers: some bands can just make better music that the original artists. I LOVE covers because I love hearing songs in different styles. Performance is almost 100% of what music is, and if you complain that other bands perform better than you… well, maybe music isn’t your place.

Songwriters are in a sticky place, especially if they’re “freelance” and make a living selling transcripts of their songs. I think a much better place would be to attach to a certain band, at least until you make a name for yourself and can get paid on a hire basis. But that’s neither here nor there.

Anyways, there’s a big difference between writing an encyclopedia and ripping off a series wholecloth. The series the encyclopedia is ABOUT is already popular, otherwise no one would care enough to write it, let alone read it. Rowling is not being harmed here, nor is she “protecting” other writers. No one writes an encyclopedia about a series people have never heard of. And no one imagines that an *unofficial* encyclopedia is anything but the ideas of another person, collected and organized in a formal way.

joel says:

Re: Re: understanding copyright law and flattery

I think there’s a flaw in your reasoning. Some hypothetical readers of your near-copy didn’t know in advance whether they would like it or not. They paid you for the chance to find out, and decided they didn’t like it, or didn’t like it enough to buy Gaiman’s in addition. Absent your near-copy, some of those readers would have bought his instead–after all, people don’t know in advance which books they will like; rather, they pick books based on plot synopses, genres and favorite sub-genres, indicators which your near-copy would be a near copy. So you’d be getting some money he otherwise would have gotten, when he did hard work and you did easy work.

This does not, of course, address the Rowlings situation at all–I just thought there was a missing step in your reasoning.

Briefly, I think Rowlings is almost certainly not worried about the money. I think either her sense of fair play is offended, or perhaps she has a fairly tender sense of possessiveness about her creations. I’m not sure what the public policy should be, but on an emotional level, I’m inclined to give her the benefit of the doubt and allow that she may not be a crazy witch.

SomeGuy says:

Re: understanding copyright law and flattery

It’s flattery because you’re enough of a fan — you care enough about the characters and world they’ve created — that you not only take the time to think and learn about everything they’ve presented, but you want to share that love of their works with the world. That’s fairly flattering.

Mike (profile) says:

Re: understanding copyright law and flattery

Also, this entire copyright-infringement-as-flattery argument is lost on me. Flattery doesn’t pay the bills. Flattery in this sense really means riding someone else’s coattails without their permission and without paying for the ride.

Copyright isn’t designed to pay the bills either. And, the point is that *anyone* who writes anything is somehow “riding on someone else’s coattails.” But, the real point is that if this book didn’t have significant value above and beyond Rowlings’ work, no one would buy it.

That’s the point. If it were just a copy and added no value, no one would buy it anyway. The fact that people are interested in it suggests that it *adds* value, and therefore does *more* than what Rowling had done.

That should be encouraged.

Neverhood says:

Ideer belonging to a person

I think it is crazy to suggest that an idea can belong to a person… but I guess that is just my personal opinion.

The whole concept gets impossible to put in to practice if you just dig a little under the surface.

Rowling wrote Harry Potter, and i agree that she alone should have the right to sell copies of that book and make money on it. But if she should have the right to all DERIVED products aswell, then everybody should have that right.

Did she invent the art of writing? No.
Did she invent the concept of story telling? No.
Did she invent the computer/pencil she wrote the story on/with? No!

She used the work of all the inventors of these things to make her book, and you don’t see her paying them a dime!
Why?
Because it doesn’t make sense to look at ideas as property that can be owned.

But that is exactly what our society is trying to do now, and it creates all kinds of problems like this.

Boys will be boys… Even when they grow up and make laws.

duderindo says:

Re: Ideer belonging to a person

“Did she invent the art of writing? No.
Did she invent the concept of story telling? No.
Did she invent the computer/pencil she wrote the story on/with? No!

She used the work of all the inventors of these things to make her book, and you don’t see her paying them a dime!
Why?
Because it doesn’t make sense to look at ideas as property that can be owned.”

That is just plain illogical. She did pay for the computer/pencil. No “one” invented story telling, it’s open source. But when it comes to using someone else’s work to gain profit, especially considering the guy quoted so much of her work, you need permission. I don’t think her “people” are worried about her ability to make profit, it’s just, had this guy asked permission, it would have been a different story.

BinaryWorld says:

Put It In The Hands Of The Fans

The fans are the ones that made her. They bought her books, they watched the movies, they bought the DVDs, etc. I don’t see a true fan refusing to buy her ‘Official’ version just b/c they had already bought the ‘Unofficial’ version. Let the fans decide what they want or don’t want. She seems to have quickly forgotten how truly lucky she is that the Harry Potter craze caught on. I bet if she was still a struggling single mom, she’d embrace the exposure the Lexicon book would create.

oh noes (profile) says:

rehash of old ideas

hmmm….welcome to science fiction, where witht the current state of laws of physics, means that everyone is copying someone else anymore because there just isn’t any new science. Saying jk is being hurt by this, is like saying azimov was hurt by all the “bad” portayals of robots run amok. Is like Sir Clarke being hurt bacause someone showed a satellite going nuts. The list can go on and on. There is overlap because, ideas are finite. There are only so many ways you can describe bloodthirsty robots. There is only so many ways you can describe first contact. The “father’s” of sci fi would, by the comments posted here, have the right to sue every other sci fi author out there.

Dr. Mounir Bashour (user link) says:

Agree with Neil

I have to agree with Neil Gaiman on this. Copyrights, trademarking and IP protection in general has gotten out of hand in the last 30 years as humans fall deeper into the illusion of scarcity. Hopefully as with Creative Commons and open source software the ideas of sharing, building on the works of others and creating new derivative works will start to shape our world more favorably as time goes by and we will begin to realize that scarcity is an illusion born of fear.
http://www.drbashour.blogspot.com

John says:

Gray area

I am friends with the owner of Mugglenet, another site that acts as a forum for discussion on Harry Potter. Rowling has always maintained a good relationship with her fans and especially the owners of the fan websites. My friend says that his site uses plenty of content that could potentially infringe on WB and her copyrights, but that their good relationship allows the site to use the material. He recently wrote a book about predictions for the 7th book, and many of his predictions were spot on. Rowling had no problem with the book because it offered independent literary criticism and created new ideas. It clearly fell on the side of fair use. I think in some sense Rowling feels betrayed by this guy writing the encyclopedia. On a common-sense level, I think this guy is being an arrogant prick who is ruining his relationship with Rowling and the HP community in order to make an encyclopedia that essentially organizes existing knowledge. On a legal sense, I think he is pushing the boundaries of fair use, but I don’t know if he is crossing it.

Willton says:

Re: Gray area

On a common-sense level, I think this guy is being an arrogant prick who is ruining his relationship with Rowling and the HP community in order to make an encyclopedia that essentially organizes existing knowledge. On a legal sense, I think he is pushing the boundaries of fair use, but I don’t know if he is crossing it.

He’s crossing it. See Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (1998) (holding that the book The Seinfeld Aptitude Test, a trivia quizbook devoted to the show, infringed on Castle Rock’s copyright in the show because the book “so minimally alters Seinfeld‘s original expression” as to not qualify as a transformative use).

erica (user link) says:

original ideas

I’ve heard that in this day and age there are no real new original ideas that someone else hasn’t thought of at one time or another.

So many frivolous lawsuits these days.. and a judge has to rule who thought of it first and who should get credit – now that’s a lot to ask of anyone.

I wonder if anyone thought of making a movie of that… wait. I bet that has already been done!

I wonder if thinking that there already has been one made was already made into a movie?

And on that note – Who is anyone to say who thought of something first? We are only seeing the counter of someone who is living. What if every dead person was alive too – maybe someone else a year ago – or 30 years ago voiced that he or she should get the credit??

Could you prove who thought of first? Would you want to judge who the profits should goto?

The whole thing is just too much to ask of anyone! It outta just be let go of.

barren waste (profile) says:

fair use

Creating an encyclopedia of movie/book information is legit fair use. It’s been going on for years without qualm. Suddenly it’s morally repugnent and grounds for law suit? There is something else going on here, or, and I hate to say this as I like her work, J.K. Rowling is acting the part of a four year old. As far as I can tell the author isn’t claiming that the encyclopedia’s content is anything but J.K.’s work, only that the encyclopedia gathers all the info and trivia into one handy format. Essentialy, the “crime” here is the gathering and organisation of data not created by the author. Hmm…does that mean all encyclopedias are copyright infringements?

Dan Zee (profile) says:

Going over the line

I guess this is a question of what is going over the line. Anyone has the right to do an encyclopedia or reference book on just about any subject they want. It’s not just fair use, but an actual protected part of the copyright laws. Information cannot be copyrighted

But from the press descriptions, apparently, instead of writing his own entries, he used J.K. Rowling’s own words for the entries.

If this is true, I think this is a big difference and probably why J.K. Rowling is angry enough to spend big bucks to sue him and his publisher. He should have written his own entries and not extensively quoted Rowling.

However, I do agree with some folks who say the judge is trying to avoid a ruling on this because he’s afraid of establishing a “line in the sand” reference point over how much quoting is allowed or not allowed in such a work. And Rowling doesn’t need the extra cash from a proposed profit split. She can fight this as long as she wants to.

Anonymous Coward says:

Ms Rowling can suck my butt. Period. I don’t mind her making a profit on Harry Potter. I don’t mind her being upset if someone ripped off her work and reprinted it defacto. But this.. I have sitting on my bookshelf unofficial reference books for X-Files, StarWars, and DiscWorld. Theres some material in each of them lifted straight from the source material. It of course quotes what episode/book its in, and basically helps me keep everything straight in my mind about how different points connect. Thats what reference books do. They aren’t the original material, they aren’t a replacement for the original material. They are a compendium to help you with the original material. You get nothing out of them without already having read/watched/bought/studied/obsessed over the original material. And btw, I’d give Mr Gaiman a much better case of abuse against JKR, than I’d give her against the schmuck who wrote the encyclopedia. Neil’s a nice guy, I’ve always thought that with the interviews I’ve seen of his. But for him to sit there and say that the her books only vaguely overlap with his books as anything in the same genra would… Well, the man should be nominated for Sainthood.

Clueby4 says:

It's fair use.

It’s fair use.

Those flapping “I wouldn’t want…” just keep projecting their lack of knowledge of copyright.

If you spanks were right, there would be no guidebooks, encyclopedias, dictionaries, Idiot Guides to Subject X, etc.

Rowling’s core issue, is that she can’t keep track of her own content, and knows that the UNOFFICIAL encyclopedia will be more accurate, complete, and lacking weak rationalizations meant to conceal numerous plot holes and deformed character development. Hence her statement regarding using the Lexicon to help write her books.

Copyright’s original goal is provide incentive to create, that incentive was achieved by giving LIMITED rights to the original creator. It was never intended as never ending revenue stream.

Eliza Days says:

Copyright issue unnecessarily scares genuine scholars

I wrote a review recently wrote a review for a young lady from Oxford who wrote a book called “Prejudice in Harry Potter”, outlining the ways Rowling creates metaphors of real-world prejudice and discrimination in her work. It was a very good read and one I think Ms Rowling would be proud of. After all, she wants people to take her books seriously and has said she is “delighted” about the reading critical analyses of her work. Scholarly commentary she should definitely feel flattered about, but mere copying and pasting like this Lexicon guy is doing is highway robbery and plundering. The worst part of all of this is that the court case might scare off legitimate critics who have something important to say about Rowling’s contribution to popular culture. And core Harry Potter fans who are fiercely loyal to her don’t care about the seriousness of the themes like the ones Brown highlights in her work. We just want to talk about the movies and what Emma Watson wore to the latest premiere. As much as I like Rowling I fear that she has made a circus out of all of this. And rather unnecessarily given Steve Vander Ark a lot of free publicity.

Brittny says:

Rowling...

J.K. Rowling has allowed several unauthorized books. So it’s not about unauthorized books. It’s about the fact that she wants to release an encyclopedia of her own. Who gets first dibs? A fan whose been cataloging the content of J.K. Rowling’s book on his website? Or the author of Harry Potter herself. It’s wonderful to allow fans to create an encyclopedia of your own work if you don’t intend to write one yourself. Otherwise I’m sure the author of Neil Gaiman’s guide to the Sandman would have bowed to Gaiman’s wishes if he had a cool idea of his own guide on the subject. THAT is my problem with it.

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