More on Today’s Testimonies
The Wall Street Journal Law Blog has given a report on some of today’s court proceedings.
According to the Law Blog, the heart of this case is the fair-use doctrine which according to the US Copyright Act is explained as follows:
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 the Copyright 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 law.
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:
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
This was discussed in detail today by JKR’s attorney:
After going through the list of correspondence that Cendali argued showed bad faith copying on Vander Ark’s part, she painstakingly detailed the four factors of fair use — the nature of the copyrighted work, the amount of the work copied, the purpose and character of the use, and the effect on the market — arguing that they don’t apply to the Harry Potter Lexicon.
Mostly, Cendali focused on the third factor, belaboring the same phrase over and over again, arguing that the Lexicon “takes too much and does too little.” In other words, she argued, unlike other Harry Potter companion books, which add commentary, analysis and research to Rowling’s work, the Harry Potter Lexicon adds nothing new or original, but merely “rearranges the furniture of Rowling’s novels.” In characterizing the Lexicon as a “reference guide,” Cendali, in her own bit of literary pilferage, concluded that RDR is attempting “to make a silk purse from a sow’s ear.”
When Stanford University’s Anthony Falzone, the inheritor of professor Larry Lessig’s Fair Use Project, took the podium, he gave comparatively short remarks, saying simply that the public will lose out if publication of the Harry Potter Lexicon is enjoined, and arguing that the power Rowling asserts over her fictional world does not translate into power she can assert over companion guides wirtten by others. “Profit was nover the point,” concluded Falzone, Vander Ark wrote the Lexicon out of passion.
As we mentioned previously, Jo took the stand today and spoke quite emotionally and passionately about her feelings on this issue. One interesting tidbit the Wall Stree Journal offered was the following:
“Should my fans be flooded with a surfeit of substandard books — so called lexicons — I’m not sure I’d have the will or heart to continue,” said Rowling, who went on to characterize the H.P. Lexicon as “sloppy,” “lazy,” and “incorrect.”
Personally I don’t know that I would classify the HPL as sloppy, lazy, or incorrect. I think it is a very excellent compendium of the Harry Potter world that I have taken advantage of (and according to many previous reports, so has JKR) quite often. Once again, I don’t know the ins and outs of copyright law and I don’t know who is in the right OR wrong here but to see the badmouthing and deterioration of fan and author relations saddens me the most.
Tags: Copyright Law, Fair Use Doctrine, Harry Potter, Harry Potter Lexicon, JK Rowling, RDR Publishers, Steve Vander Ark, Trial
April 14th, 2008 at 9:15 pm
Yes it is a shame. She is only following her lawyers advice and suggested comments. The whole thing becomes very fake once lawyers are involved and loses an innocense that made it special in the 1st place. I believe the lexicon was very well done. If it wasn’t why is she even worried about it? I would think it to be as well done as she herself could do. Perhaps better given the time spent creating it. I do not think JKR would have had the time to spend on it to be as complete. The lexicon was made over a very long period of time with much research. I must conclude it was too well done and really wish they could have teamed up and worked together to give us an exciting new look into this world. Now all they have made is garbage, and $ for the bloodsucking souless lawyers.
April 14th, 2008 at 11:25 pm
I was considering going to NY for this, I’m sorry I didn’t. This is looking more and more like the Scopes Monkey trial of our generation.
The WSJ Law blog has the most informative coverage of the trial that I have found so far (the Associated Press should be ashamed).
Anyway, if the comments/scenarios/anecdotes outlined there are in fact correct, then I think I side with JKR in this case. I’d like to get more information, but if it is indeed true that SVA pressed JKR for a job, and when none was extended, rushed his version of the lexicon to print, consisting of mostly lifted quotes, then I think SVA is wrong here. It’s difficult to say for sure without seeing the book version of the lexicon, and knowing more about the background of the interactions between JKR and SVA.
But that’s from a moral standpoint, and may be completely immaterial if, regardless of the history, this is simply a question of copyright.
April 14th, 2008 at 11:26 pm
By the way, Penny: this post is more than 75% lifted from the WSJ. Be careful, or you might find their lawyers paying you a visit.
April 15th, 2008 at 2:12 am
It actually isn’t. A large part is from the us copyright website
April 15th, 2008 at 12:41 pm
Greg,
If you want to see all the documents from the case go to Justia.com (http://news.justia.com/cases/featured/new-york/nysdce/1:2007cv09667/315790/) It is all there to wade through.
One interesting one is an email exchange were Steve Vander Ark admits that to publish essentially what he wants to publish would be illegal (http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/29/1.html)
The actual job emails is there somewhere I am sure but I didn’t have to the time to look in detail. It was quoted on the Leaky Cauldron on Jan 16 (http://www.the-leaky-cauldron.org/2008/1/16/wb-and-jkr-file-full-request-for-injunction-of-harry-potter-lexicon-part-1) To quote them quoting the documents that quote Steve Vander Ark —which should cover me! ;0):
“The text of the e-mail string between Steve Vander Ark and the Christopher Little Agency requesting employment on the official encyclopedia is included in the document. The first few emails request a meeting during Vander Ark’s July appearance at Sectus, which were declined. Emma requested questions be sent through via e-mail, and Vander Ark sent the following response:
“Hello, Emma:
“Basically, the question is a personal one. I would like to be moving to London soon, but one of the things holding me back is that I don’t have a job there. I have registered with TeachLondon and have been pursuing a few other possibilities, but I’m a school reference librarian and TeachLondon and other such services are primarily looking for classroom teachers. I am a US citizen and need to have a job lined up in order to get a work permit.
“I have no idea what Rowling is planning now that the novels are finished, but if she is thinking of working on an encyclopedia or other references to the series, I would be a good candidate for work as an editor, given my work on the Lexicon. I had hoped to meet with you simply to give you a note to pass along to Rowling making the enquiry.
“I said that I have other people to talk to. Actually,that’s one person: Fiddy. I have her email address and can send a note her way. I thought it would be best, however, to send this through Christopher Little since you’re her literary agents and would be directly involved with a project like this.
“Please give me your honest opinion on this. I am 49 years old and have proved myself to be a lot more than just some teenaged fan with a website. If you think this idea has some potential, let me know how you think I should proceed. If you think I’m wasting my time, I would appreciate your being honest with me on that as well.
Thanks for taking the time to consider this.
Steve”
The response, from Ms. Schlesinger:
“Dear Steve:
“Thanks for this.
“Whilst we appreciate your very clear continued interest in Harry Potter, should Jo decide to work on an encyclopedia or other Harry Potter companion book, she will definitely not be looking to collaborate with anyone, so we regret that we can’t offer you an anchor to move over here. For the record, we have confirmed this with Fiddy, so no need for you to write directly. Thank you however for sending via us.
“All the best for your future plans.
“Best wishes
“Emma.”
Steve’s response:
“I really appreciate the quick reply. I wasn’t really thinking of collaborating, just working somewhere in the organization, but I do understand what you mean. I wouldn’t have contacted Fiddy about this once you had said it wouldn’t work, but thanks for mentioning it to her. You never know what might come up.”
April 15th, 2008 at 1:14 pm
Uh I just read about it on here. I am like Greg and Penny report< You decide!. Fair and balanced Potter podcasting. And that’s the way it is on 15 April 2002. Thank you and good night.
April 15th, 2008 at 1:33 pm
I totally agree with Aaron!
I can finally breath a sigh of relief after viewing this unbiased website.
Go Greg and Penny!
I had so much hope and admiration for some Harry Potter websites and thought that they would stand up for what they feel is right and not side with JKR because she’s rich and has alot of influence now. How about standing up for the person who has nothing.
Of what I heard of him on Pottercast, Steve seems like a great guy and someone that did put alot of effort into the lexicon.
April 15th, 2008 at 4:35 pm
I’m not sure if y’all are replying to my post but if you are, folks those are not bias, those are the court documents. I only posted them because Greg said he wanted more information.
As for me personally, I side with JKR not because she is rich and influential but because I think she has a right to control what she creates. Because she is rich people should be able to just take her work and do with it as they want? I think it is fine to think SVA is in the right but whichever side you support I reckon you should try and be nice about it. And realistic, like I said the other day, it just isn’t reasonable to think the courts are treating JKR in any way that is outside the law ore in any way not in line with judicial proceedings and process. If they were, SVR’s lawyers would be hollering foul and they would be headed for a legal do over.
April 16th, 2008 at 11:25 pm
[...] the meantime, more information has come to light. Commentor Bill posted a link to a site that contains most of the information that has been submitted for the case (I think [...]
May 22nd, 2008 at 1:36 pm
Genuine Leather Handbag…
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