Thursday, April 17, 2008

Warner Brothers and J.K. Rowlings vs. RDR Books and Steve Vander Ark

I’m not a huge fan of Harry Potter. I’ve read a couple of the books (they’re okay) and seen a couple of the (they’re okay). Not a huge HPphile, so I can’t tell you about the meanings of this or that in the books.

The lawsuit between J.K. Rowlings) and RDR books, who is publishing the Lexicon book written by Steve Vander Ark, is one that will set a precedent in terms of the fair use doctrine and could send ripple effects throughout the HP fandom (they’re already divided with some clearly for JKR and some for SVA.
It comes down to the interpretation of the Fair Use doctrine under U.S. Copyright Law.

From the U.S. Copyright Right Office:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of theCopyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

To understand the lawsuit, we must first go back and look at where it started. Vander Ark had idea about publishing his Lexicon website in book form. But he had serious questions and doubts about copyright violation. He tried several times to contact Rowlings and Warner Brothers about publishing Lexicon in book form. They never responded. (I’ve had a similar experience with Universal—unless you’re represented by someone, they won’t talk to you.) It was only after RDR Publishing contact him and told him that it wasn’t a copyright violation that he decided to go through with it.

Vander Ark was smart enough to have it in his contract that if he was sued, they’d have to cover his lawyer fees and court costs.

Much talk has been given about how he lifted passages and descriptions to describe characters and events. This is where I have an issue with the book. If Vander Ark copied verbatim from the books, then he clearly should “footnote” the reference. However, if the description of a character reads: he was big, tall and hairy… there’s little wriggle room for someone to describe it without it becoming wordy and lengthy.

Here’s the definition of plagiarism (wiki):

Plagiarism is the practice of claiming or implying original authorship of (or incorporating material from) someone else's written or creative work, in whole or in part, into one's own without adequate acknowledgement. Unlike cases of forgery, in which the authenticity of the writing, document, or some other kind of object itself is in question, plagiarism is concerned with the issue of false attribution.

Author Steven Ambrose was pummeled late in his career as a historian for “plagiarizing” other works because he failed to acknowledge.

The best thing Vander Ark could do is at least credit Rowlings. It’s only right, especially if he’s lifting material from the books.

The judge’s recent ruling that the two-sides reach a settlement on their own sends a powerful message: the fair use doctrine is too murky to issue a ruling. It would send a ripple effect into various of other fandoms, not just Harry Potter.

What are the possible consequences? If the judge was to rule for Rowlings and Warner Brothers, it would sent a message that all fan-interpreted works are in danger of facing possible lawsuits.

Ten years ago, Warner Brothers was one ring leaders of a massive witch hunt by a handful of studios to send out cease and desist orders to fan websites with “fan encyclopedias.”

The flip side would open the floodgates to allow fans free reign to publish their own works based on their favorite books or websites, etc.

So a settlement has to be reached between the two parties to save “fandoms” across the board. The consequences could be dire if it continues. All this could have been avoided had Warner Brothers and Rowlings responded to the requests. They didn’t and so here we are.

I’m not arguing on behalf of Vander Ark or for Rowlings. I feel that the lawsuit is purely money and lawyer driven with little concern for either author. It’s about rights, it’s about the rights of a fan to publish an unofficial book and the rights of the author who doesn’t want her work to be misused.

The one thing that steps out in my mind is this: Rowlings had stated previously that she “might” do a book. She’d been quiet on it for a number of years—that is until Vander Ark and Lexicon appeared on the radar.

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