Why the Lexicon Trial is important
Posted By Kathleen David on April 15, 2008
Someone asked on another com if someone could tell them the short story about the Harry Potter Lexicon which has been a big sprawling mess so I wrote the following
Once upon a time there was a series of popular children’s books which had a vast following. Fans created many web sites and wikis to show their love for these books.
One fan rose above the others and created a lexicon based on the material in the books and added more from the movies. This became a useful tool for all who were involved including the creator of the books and the movie studio. All praised the fan for his diligence for creating such a wonderful site.
A book publisher came to the fan and they came up with the idea to move this wonderful information from the internet to the real world in the form of a book.
The creator of the books was not happy with the idea and asked the fan to not do this thing.
The fan decided to do it anyway.
The creator and her minions send a cease and desist to the fan and his publishing company.
The publishing company decided to publish anyway and told everyone that the creator is a big bully.
The creator and her minions are suing the publisher to stop this book for many many legal reasons and points of law.
Now we are at the point in our story where every one is in court to try to see who will win the battle of words
The trial started yesterday. Ms. Rowling was there to answer to why this lexicon is OK on the net but not as a book selling for 24.95 a pop. And she did a very good job of it. If you care to read a fair transcript of the thing there is one at The Leaky Caldron .
I am firmly on the side of the creator on this one. I have watched friends have to deal with people using their creations for profit that they don’t see one thin dime from. I have also talked to friends who have had to use the court system to defend their rights to their property. Believe me, the stress on this sort of thing is great and very wearing.
But people are crying fair use! I think that most people haven’t a clue what fair use it. I do because it was one of the things I had to deal with as an editor when I worked on non-fiction books. Just because JKR allowed the Internet site to exist doesn’t mean that she gave passive permission for it to be published in book form. And what is happening in court today is going to bring up a whole set of red flags for creators when they find their work being used as the launching point for something on the net. Yes I do believe that down the road this is going to screw things up for someone else who has the best of intentions.
I think the thing I find most disheartening about the whole thing is that the fan asked the creator for her blessing to do thing and she told him gently no and please don’t. That should have been the end of that but fan boy thought better of it or rather as he is now stating it, the publisher came to him and said that it would be legal without permission because of fair use so, even though he knew the creator didn’t want it done, he did it. And, because of the contract he signed with the publisher, this stunt isn’t going to cost him a dime in real money. I just hope he realizes what he really lost when this is all over.
I am grateful for fans that do listen when they ask permission and do take no for an answer.
I don’t think *you* have a clue what copyright is. Even if you create something, that doesn’t give you the right to end all discussion and reference to your work that you don’t approve of. Under your definition of copyright, nobody could publish a book of literary criticism or plot synopses without permission of the owner. You want to give, for instance, Walt Disney veto power over all discussion of Mickey Mouse in the public sphere. Does your (and Rowlings’) greed know no bounds?
As I had it explained to me by a friend who’s an editor at a New York publishing house, such secondary works as this lexicon and critical volumes covering a particular book or series are in fact covered under ‘fair use’. You and Rowling may not like it, but that has apparently been the case until now. Rowling is attempting to use a combination of emotional appeals and the sheer brute legal power she can bring to bear to change this. It will be interesting to see if she succeeds. If she does I suspect the decision will have consequences you didn’t forsee and which you will not like.
Here’s my question: Spark Notes publishes paper copies of their Harry Potter summaries. Why aren’t they being sued?
I’ve also seen unofficial books that summarized her stories and gave lists to reoccuring details and themes. Why isn’t anyone else being sued?
Sorry if it sounds like I’m attacking; I’m not. I’m just curious.
Kim, Kathy’s defenition of copyright works. There is nothing wrong with plot synopsis or critical review. The point od contention is whether someone can take the creative work of another, and put their own spin on it for profit without the creator’s permission, and without proper compensation to the original creator of the work.
The Harry Potter universe is a distinct creation. JKR should be payed for any related works. It’s not greed.
I agree with Manny, Kim. Fair use means that snippets of copyrighted material may be used in the purpose of a greater piece: quotes may be used in the context of a review, for instance. I reviewed lots of Trek episodes and films throughout the late ’80s and all through the ’90s, and in many cases provided very detailed plot synopses. Never caused a problem.
The difference in this case is really the “for profit” angle. Had I tried to publish a book of my reviews, I have no doubt that I’d either have had to (a) get permission from Paramount, or (b) have greatly reduced the synopses and provided primarily commentary.
Nobody reasonable is saying that commentary or discussion are disallowed, and I think it’s a little unreasonable of you to say that Kath’s arguing that.
TWL
I don’t think *you* have a clue what copyright is. Even if you create something, that doesn’t give you the right to end all discussion and reference to your work that you don’t approve of.
Kathleen didn’t say that or anything like that. It’s not as if Rowling “doesn’t approve” of what’s being said. She doesn’t approve of work that basically regurgitates her universe being produced for profit. For that matter, a percentage of the material was produced by fans who are seeing not one thin dime from the proposed sale of the book. What of their rights? Or are they to be as screwed out of profits as the woman whose work upon which this was wholly based?
As I had it explained to me by a friend who’s an editor at a New York publishing house, such secondary works as this lexicon and critical volumes covering a particular book or series are in fact covered under ‘fair use’.
That falls into the realm of “a little knowledge is a dangerous thing.” Your editor friend bandies about “fair use” without bothering to clarify the parameters, presuming he or she knows them. Fair use applies when the material upon which the work is based constitutes a minuscule percentage of the new work. For instance, if the proposed book were to consist of essays on–say–religion in the Harry Potter universe, and a 5000 word essay included three lines excerpted from Rowling’s original work to support a specific point, THAT is fair use. A work which in its entirety is nothing more than a reiteration of another work is NOT, in my opinion, fair use.
PAD
Manny: Two questions for you, one technical, one philosophical. First, where exactly is the line drawn between criticism and “spin”? Isn’t an encyclopedia really a form of commentary on the work? Secondly, you say that “JKR should be payed [sic] for any related works.” Why?
Tim Lynch: That seems like an absurd distinction to me. It’s okay to review stuff without permission, just not for profit? I’m pretty sure you’re wrong about your Trek works. It’s just not true that copyright extends to a detailed plot synopsis.
Peter David: Well, you’re confusing the issue a bit. If people contributed content to this encyclopedia with the understanding that it would not be reproduced for profit, then they indeed have a case against the publisher. That has nothing to do with Rowling, however. I don’t really see how this is a “reiteration”. An encyclopedia is quite different from a fictional book.
Everyone: The problem I have here is the idea that if you create a work, you *own* it. That’s just not true. The government provides you with a limited grant of monopoly on production of your creative works and certain derivative properties, for a limited time. That’s what copyright is. It’s not a wholesale carve-out of the public sphere of everything relating to your creation, and people need to stop thinking of it in those terms.
Let me just add one more thing. I remember reading a collection of critical essays on “Catch-22”. One of the essays was simply an attempt to unravel the complicated timeline; it explained what happened, in what order, and what clues were in the book for the writer to come to that conclusion. This strikes me as a perfectly reasonable and informative critical commentary on the book. By your logic, could Joseph Heller have sued the publisher of the book this essay was in? If not, what’s the difference between this and the encyclopedia?
“Peter David: Well, you’re confusing the issue a bit.”
No, I’ve got a pretty good handle on the issue. You’re the one who got Kathleen’s statements completely wrong.
“If people contributed content to this encyclopedia with the understanding that it would not be reproduced for profit, then they indeed have a case against the publisher. That has nothing to do with Rowling, however.”
Well, for starters, she’s in a better position to protect her property than the assorted disenfranchised contributors are to protect theirs. I should think you’d be praising her rather than condemning her on that basis alone.
“I don’t really see how this is a “reiteration”.”
Yes, you’ve made that quite clear.
“An encyclopedia is quite different from a fictional book.”
Well, yes, because an encyclopedia is typically based upon the real world. This work–which, by the way, isn’t even being called an encyclopedia but a “lexicon”–is derived entirely from the intellectual property of JK Rowling.
“Everyone: The problem I have here is the idea that if you create a work, you *own* it. That’s just not true.”
Yes. It is.
“The government provides you with a limited grant of monopoly on production of your creative works and certain derivative properties, for a limited time. That’s what copyright is.”
Yes, and that’s what the lexicon is in violation of. A further definition of copyright is:
“A legal device that provides the owner the right to control how a creative work is used. A copyright is comprised of a number of exclusive rights, including the right to make copies, authorize others to make copies, make derivative works, sell and market the work and perform the work. Any one of these rights can be sold separately through transfers of copyright ownership.”
The lexicon is a classic example of a derivative work. As the copyright owner, Rowling is within her rights to control it. It’s really no more involved than that.
“It’s not a wholesale carve-out of the public sphere of everything relating to your creation, and people need to stop thinking of it in those terms.”
There you go again: Ascribing sentiments that NO ONE IS EXPRESSING. If you want to build a fortress that no one is attacking and declare you’re defending it, go right ahead. The rest of us will hew to reality, if that’s okay.
PAD
“Let me just add one more thing. I remember reading a collection of critical essays on “Catch-22″. One of the essays was simply an attempt to unravel the complicated timeline; it explained what happened, in what order, and what clues were in the book for the writer to come to that conclusion. This strikes me as a perfectly reasonable and informative critical commentary on the book. By your logic, could Joseph Heller have sued the publisher of the book this essay was in? If not, what’s the difference between this and the encyclopedia?”
Kim–you seem like a reasonably bright person. The fact that you even have to ask this question indicates that either you have a bizarre blind spot on this issue, or you’re somehow connected to the defendant. Especially when one considers that this has already been answered, and you’re acting like it hasn’t been.
I will say it again, as simply as I can, although I’m not sure that it can be any simpler than the earlier “apples and oranges” post:
Putting aside that you have no idea whether, perhaps, the author of the aforementioned work might well have contacted the publisher and received permission…
A work of critical study, academic discussion, scholarly work, etc., is precisely the sort of endeavor that Fair Use was designed to protect. Such an endeavor could not, for instance, reproduce entire chapters word for word, but it can discuss them at length. It’s the same Fair Use protection that enables movie reviewers to discuss movies. “Looking for God in Harry Potter” and “The Magical Worlds of Harry Potter” are just two examples of books that fit this exact criteria–scholarly works discussing the world of Potter against the context of a broader world.
The Lexicon simply regurgitates the existing material and brings nothing scholarly, academic, critical or insightful to the party. Ninety percent of it is Rowling’s own words. Ninety percent, Kim. No definition of Fair Use protects that.
That’s the difference.
PAD
“The lexicon is a classic example of a derivative work.”
Well, that’s the heart of the matter, isn’t it? I think it’s insane to consider this a derivative work as that term has always been legally understood; in any event, it’s not a “classic” example. I defy you to find any existing case law that considered something like this a derivative work. If she wins her case here, it would be a huge, precedent-setting expansion of the term “derivative work”, and an infrigement of everyone’s right to produce critical commentary of a copyrighted work, to an extent unimaginable until now.
You say my summary is a strawman, but honestly, if this case is won, it’s hard to see how it’s inaccurate. We’ll basically have to ask permission for any discussion of a copyrighted work that’s not a simple book review that gausses over plot details.
“Well, that’s the heart of the matter, isn’t it? I think it’s insane to consider this a derivative work as that term has always been legally understood; in any event, it’s not a “classic” example.”
You know what? This one I have to concede you. I did some fast research and discovered that the Lexicon would not be considered a derivative work.
Unfortunately for you, that revelation blows the living crap out of your argument anyway. If it were a derivative work, it would in fact be protected. This is from the US copyright office flier on the subject:
“A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.”
The Lexicon is exactly that: It makes minor changes or additions of little substance to preexisting work.
Critical works such as I discussed earlier are in fact derivative works. That’s what gives them copyright protection, and Rowling isn’t challenging those. But the Lexicon itself is not copyrightable because it is a violation of Rowling’s copyright. Therefore, Rowling is right, and you are wrong. QED.
PAD
“The Lexicon simply regurgitates the existing material and brings nothing scholarly, academic, critical or insightful to the party.”
And how is that different from my example? Why wouldn’t you consider the Catch-22 essay a simple “regurgitation” of existing material? By your logic, it’s not “adding” anything, it’s simply rearranging Heller’s world. I would argue that in itself that has scholastic and critical value, just as the lexicon, simply by its means of presentation, does. But of course, you don’t. So again, what’s the difference?
“Well, for starters, she’s in a better position to protect her property than the assorted disenfranchised contributors are to protect theirs.”
Too bad. She doesn’t have standing. If somebody illegally copies my critical essay on sexual politics in “The Cat in the Hat”, I don’t get to have the Dr. Seuss estate bring the infringer to court for me. If there’s a lot of individuals here that were ripped off, they need to bring a class-action suit. That’s why they were invented.
“Kim–you seem like a reasonably bright person.”
Don’t let that fool you, though.
“That seems like an absurd distinction to me. It’s okay to review stuff without permission, just not for profit?”
Um, no. That’s not what I said at all, although I do apologize if my statements about the synopses were blurry.
It is all right to REVIEW material without permission, with permission, without profit, with profit, on a boat, with a goat. Reviews are original pieces of work.
Synopses, IF THEY CONTAIN EXTENSIVE QUOTES (which mine sometimes did), start treading into a very gray area. My synopses may well have treaded on Paramount’s toes, but my belief is that nobody cared because I was not trying to profit from that.
There is a big, big difference between reviews and synopses, and I’m sorry that you don’t seem to be recognizing that.
“I’m pretty sure you’re wrong about your Trek works.”
Feel free. I’ve had plenty of actual copyright lawyers say otherwise, so you’ll have to forgive me if I’m less than distressed about your disagreement.
“It’s just not true that copyright extends to a detailed plot synopsis.”
If it is nothing more than a synopsis, that’s true. As I said above, it’s the level of quoted dialogue that can be an issue.
I don’t think anyone’s questioning your intelligence, Kim — your willingness to listen and/or consider other points of view, however, seems very much in question.
TWL
I’m kinda divided on this one – over the years, there have been several fan-produced “concordances” or similar works to various TV and other series. many of which have been published for profit, with no kick-backs from the creators.
I havenb’t seen either the website or the book in question; if all it does is quote chunks from the books, then it’s definitely *not* legit.
If, on the other hand, it’s like my friend Don Markstein’s “Toonopedia” (htp://toonopedia.com -insert another “t” after the “h” to use the link), which is *the* online reference site for basic information about literally thousands of comic characters and strips/series, then, in my opinion, it *is* legit.
“And how is that different from my example? Why wouldn’t you consider the Catch-22 essay a simple “regurgitation” of existing material? By your logic, it’s not “adding” anything, it’s simply rearranging Heller’s world. I would argue that in itself that has scholastic and critical value, just as the lexicon, simply by its means of presentation, does. But of course, you don’t. So again, what’s the difference?”
Dear God, Kim, I can’t make it any simpler. I simply cannot. What part of “Ninety percent is Rowling’s own work” was unclear? What part of the copyright office’s definition of what’s copyrightable was unclear? We have now moved beyond anything approaching reasonable argumentation and into the realm of obtuseness on your part that can only be considered deliberate. I’m leaning more and more toward the notion that you have some connection with the defendant. Nothing else makes any sense.
The “Catch-22” example takes a story that some may have found impossible to follow and breaks it down chronologically, reworking the material while it does so. That is protected.
Now: If the author of the work had chosen to take “Catch-22” and republish the entire book, or even ninety percent of it, in chronological order, but otherwise word for word, THAT would NOT be protected.
That is, in effect, what the lexicon has done. It’s taken the existing work of JK Rowling and basically published it word for word in alphabetical order.
That’s not protected.
How about that: I was able to say it even simpler. But that’s my best shot. If you still don’t get it, then feel free to run back to whomever you’re involved with in the case and say that Peter David was being mean to you.
PAD
What i don’t understand is…this dude who ‘created’ the lexicon was a 50 yr old librarian. Didn’t he know enough to do a little research and read some books on copyright laws etc?
I’m not 50, i’m not a librarian and i’m certainly not some dude and i’ve got enough brains to read up on the stuff i need to know before i start signing contracts.
Like Kathleen, my sympathies initially lay with Rowling since I assumed this was a simple case of using an author’s work without their permission. My editor friend – who, unlike me, has worked in publishing more than 20 years – convinced me otherwise. I went looking further, and found the following article by law professor Tim Wu, who has looked at the material in question and also come down against Rowling:
http://www.slate.com/id/2181776/
They seem to think this is a legitimate secondary work, PAD. You think it’s infringing on Rowling’s copyright. If they’re right and Rowling succeeds – which she can pay for the legal muscle to do – this will have far-reaching effects. Either way, it’s going to be a very interesting case to follow.
I’m sorry, Rob, but I read the article, and he’s wrong. And, for that matter, so are you.
He shoots himself in the foot early on when he says:
“As long as a guide does not copy the original work verbatim, it falls outside the category of “adaptation.””
Except, if Rowling’s attorneys are to be believed, the lexicon does exactly that, with ninety percent of it existing of Rowling’s exact writing and phrasing. So that torpedoes that.
And you (and others, admittedly) have been claiming that this case will have “far reaching consequences” as if it’s groundbreaking. It’s not. If it’s decided in Rowling’s favor, it will be because it simply follows the already existing case law in Castle Rock vs. Carol Publishing. In that case, the defendant simply took existing material from Seinfeld episodes and published it as a quiz book. The judge ruled against the defendant. And, frankly, I happen to think that in that instance Seinfeld was on shakier ground. But the judge ruled that the quiz book did not have a “transformative,” changing the material from one work into another by adding substantive new material on the part of the author. The lexicon runs even further afoul of Castle Rock vs. Carol.
So it would be nice if people stopped casting Rowling in the role of villain and this case as some sort of ground-breaking threat when neither is true.
The bottom line is: The defendants are rip-off artists. They are ripping off the work of JK Rowling, and they are ripping off the work of the contributors who added what small original content there is. How anyone can defend such unethical actions is, frankly, beyond me.
PAD
Hi,
With me, I think it should be published from what I have seen. To me the key part is how much is referanced and how much is just quoting the story. Taking a look at this page http://www.hp-lexicon.org/muggle/muggle_people.html I would think it is a referance, but wondering where others think the line is drawn and what can be used as a test.
Thanks,
Wade
Well, it should tell you something if in court the author of the Lexicon admitted that he thought publishing it would violate copyright law, and the only reason he agreed to having it published is if the publisher would burden any court costs in a lawsuit.
And where are we now? In a lawsuit over copyright.
In the end, if the accusations against the Lexicon are correct, and that it takes passages from Rowling’s books wholesale and without permission, then there’s no way this book can be published as is.
That isn’t fair use.
Posted by: Craig J. Ries
“Well, it should tell you something if in court the author of the Lexicon admitted that he thought publishing it would violate copyright law, and the only reason he agreed to having it published is if the publisher would burden any court costs in a lawsuit.”
Yeah, what it tells me is that the publisher’s lawyers – rightly or wrongly – said that it was okay to go ahead.
I’ve often felt that contracts with attorneys should say that, in cases like this, if your lawyer says “Sure, go ahead – it’s legal,” and you get sued/prosecuted and lose, the lawyer has to pay the damages or do the jail time.
Okay. I have looked at the page at http://www.hp-lexicon.org/muggle/muggle_people.html
If that is typical of the Lexicon, then Rowling’s publisher (as i read the articles i’ve seen, Rowling is only in this personally because her publsiher told her she needed to be, as the author’s publisher told him it would be okay to publish the book) doesn’t have a leg to stand on.
It includes one fifteen word quote from Rowling as a headpiece to the page, and occasional snippets of three or four words (in the manner of the OED including short quotations from earlier sources to show how the word being defined was used in context).
This is hardly the first book published exploiting Rowling’s original work in this manner and to this extent, and it won’t be the last (unless this suit has a chilling effect).
Over the years, other fan-produced or -oriented similar works have been produced and published without lawsuits being instigated; i really think that the only reason this one is going on is bacause Rowlings’ publishers, having decided that if there was more money to be made from the Potter books (since Rowling has said she’s not writing any mnore) then the only way to squeeze a few millionsmore out of the fans was derivative works, are cynically trying to protect their cash cow.
I need to ask my brother and his editor what reaction they’d have – and whether it would involve a lawsuit – if someone was planning to publish a similar lexicon/concordance to his “Honor Harrington” books (which, while they haven’t had the financial impact of Rowlings’ books, do make the Best Seller lists with some regularity…). If i get any interesting responses from them, i’ll let you know.
Okay. I have looked at the page at htp://www.hp-lexicon.org/muggle/muggle_people.html.
If that is typical of the Lexicon, then Rowling’s publisher (as i read the articles i’ve seen, Rowling is only in this personally because her publsiher told her she needed to be, as the author’s publisher told him it would be okay to publish the book) doesn’t have a leg to stand on.
It includes one fifteen word quote from Rowling as a headpiece to the page, and occasional snippets of three or four words (in the manner of the OED including short quotations from earlier sources to show how the word being defined was used in context).
This is hardly the first book published exploiting Rowling’s original work in this manner and to this extent, and it won’t be the last (unless this suit has a chilling effect).
Over the years, other fan-produced or -oriented similar works have been produced and published without lawsuits being instigated; i really think that the only reason this one is going on is bacause Rowlings’ publishers, having decided that if there was more money to be made from the Potter books (since Rowling has said she’s not writing any mnore) then the only way to squeeze a few millionsmore out of the fans was derivative works, are cynically trying to protect their cash cow.
I need to ask my brother and his editor what reaction they’d have – and whether it would involve a lawsuit – if someone was planning to publish a similar lexicon/concordance to his “Honor Harrington” books (which, while they haven’t had the financial impact of Rowlings’ books, do make the Best Seller lists with some regularity…). If i get any interesting responses from them, i’ll let you know.
Oops.
In my porevious two posts, i entered the URL for my website on the line provided, but, by reflex, i entered the old URL – after spending a week in domain-renewal hëll, i have a new domain; if you clicked on my name in the previous two posts, you hit a page at the old registrars’ site – may they drop dead tomorrow, if today is already booked.
The link on this poost is right; it ends in “.net”, not “.com”.
Thank you, and good night.
While I see both sides of it, and have to side with Rowling, where do books with “Unofficial” in their title fall into the fray? I have quite a few “Unofficial companion/guide/lexicon/trivia/etc” books on my shelf, and none of them were at the headlines for infringement. Do these just slip under the radar, or are they in a gray area?