Prayers For Lexicon Steve and the great debate on Copyright.

[Teri Gardner]

HPFGU-OTChatterHi All,

I've been a member of this list for quite a few years now, but I haven't responded much to it because I haven't really had much to say.  However, lately I've been seeing posts regarding the court case between WB/JKR and RDR/SVA and had to put in my two cents.

I'm NOT a lawyer and I want to say that up front, but I have worked in copyright law, trademark law and entertainment law as a legal secretary (and will be going back into entertainment law shortly), and I have had several conversations with lawyers regarding fandom endeavours and, more specifically, this case.  I should also piont out that I'm Canadian and have only worked for Canadian law firms, but several lawyers I've worked for also have licenses to practice law in the U.S.

Canadian copyright laws are very similar to American ones.  And 100% of the lawyers I've spoken to believe that fandom endeavours are copyright infringement by their very nature.  The indulgence of authors, production companies (for film and television) and other creators of original materials that would possibly draw a fandom is largely that, indulgence.  There are a number of original creators out there who tightly control their fans' activities or do not allow for fanfiction, art, etc. at all on their works: Anne Rice is a good example (however much I despise the woman, she does exercise her rights under copyright laws very closely).  Anne McCaffrey is well known to dictate what fan groups for her Pern series (Weyrs) will exist or not and how they are organized, etc.  Film production companies such as Warner Bros. and Disney are very strict on how their copyright and trademarks are used.  Paramount isn't as tight with their controls, especially with the Star Trek franchise, but if they choose to change their minds on this, they can and have a right and have a case they can very likely take to court.  

Some authors I know of are very loose with their copyright and think that allowing fans to take off with their works and do what they will, as long as they are not attempting to make money off the fanworks, is a good way to encourage sales, build a good relationship with fans, and well, it's damn flattering.  They also see it as a way for fans to hone their own skills to eventually go pro with their own original creations.  Other original works creators, such as Wendy and Richard Pini, creators of the Elfquest series, have put up some restictions, namely fans can play in their world, or create clubs based on the world of Elfquest, but are not allowed to use the characters that are in their original works. Many fanclubs also solicit funds to keep their websites up, pen and paper zines printed and mailed out, etc.  Since there is an exchange of money (most clubs operate at a loss, but that's beside the point) and that is against copyright laws (from what I understand, Colleen Doran shut down her official fanclub for A Distant Soil in the early 1990's because of this issue - the club operated at a loss, but there was concern that there were legal ramifcations because of the money that was invovled, concerns on where it was going and the club had the term "official" attached to it and thus made her liable should anything go awry.) 

Now, when I asked about the situation with RDR books/Steve Van der Ark, I've been told that WB and JKR are more in the right than the other side is.  Yes, reference books have been done with other series (such as JRR Tolkien's work) but usually these are done with permission of the author or the author's estate.  In the case of books like the Bible or older works of literature, they are in the public domain and there's not much anyone can do about it.  

The Lexicon website itself certainly can follow under fair use, as a derivatve work, but it contains critiques, analyses and commetaries on the site and it brings something new to the table in that way.  Without publishing those or even some of them, the Lexicon is reduced to a rearrangement of the work of JKR and that does not fall under fair use.  From what I understand, the other books out there that are references to JRK's work, not only contain something that can be considered analytical of her work, a commentary or critique, but also have been put out with the blessing of WB and JKR.  Since parody and satire fall under fair use, these books (I know of only one, but there could be others out there I'm not aware of) can be published and sold under the law.

So, my next question was, what if RDR/SVA win the case?  What does that mean for fandom?  What it means is authors, cartoonists, graphic novelists, artists, production companies, etc. will likely start clamping down on fandom. Why?  Because the fear will now be that a precedent has been set where fandom works can fall under the canopy of fair use and that will create a situation where original creators now have little or no control over how their works are exploited, used, abused and presented.  They now are in a free for all and if a fan decides they want to publish a fan story, fan art, or something else, they may have a case to proceed with it.  

Again, a new question, what happens if WB/JKR win the case?  The case alone may scare many original works creators into clamping down in fandom to prevent such a thing like the Lexicon case from happening to them (JKR and WB may be able to afford expensive, high flying lawyers, but most can't), but at the same time, it's likely not much will change.  

Aside from whether or not money will be lost or made or whathaveyou, the fact remains that rearranging someone's entire works is not a derivative work. It's just rearranging the work into a different order.  There is no commentary, no critique, no analysis.  It's not fair use.  Fair use is very strictly defined (both in Canada and the US) and even critiques and commentary can only quote so much of an original work for its purpose.  Same with educational materials.  The Lexicon as a website may get away with fair use (even though large chunks of it are just rearranagements of JKRs material) but the Lexicon as a book, with all the "extras" stripped to just a rearrangement of the work as an encyclopaedia, does not at all.  

I've been watching this case closely and I've even had a few folks in the Harry Potter Fan Group I run here in Canada ask me about their position with regards to the Lexicon case since they have contributed to the website.  This is an important case since I run several fan clubs in several different venues and whatever the results, it will affect them.  My hope is that WB/JKR will win, I must say, since it's very likely the other result will end up with me having to close my fan clubs/websites/fanzines.  Whatever I personally hope for, though, the decision made either way is one that I will have to respect.

I don't expect this post to change any minds or even clarify the issue as I see it, but I thought I would put something out there.  I do hope that the reasoning behind judgement will be unbiased and fair to all, but I personally feel that there will be a clear winner in the case.  It looks as if the case is designed to end up with such a decision.

Anyhow, this is long enough.  I have been enjoying this list a great deal and I hope the division in the court room doesn't prove to be a division on the fan lists.  It is a touchy subject and I know people can get passionate about it.

Teri

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