The Fair Use Doctrine

[Carol]

Lee wrtoe:
> Right morally or legally? But yes, we agree. Whether JKR wins or
loses, there will be a chilling effect on fandom. If she wins, sites
will come down (or not go up) for fear of copyright infringement. If
she loses because the judge rules she didn't properly protect her
intellectual property, legal heads will become even more paranoid, and
you can expect the number of C&D letters to mushroom. Fans will be
intimidated into pulling down websites even when the law is on their side.
> 
> Either way, I think fandom may be in for a rough ride.


Carol responds:

I agree that fandom is in for a rough ride, but I don't think that if
JKR loses, it will be because she didn't protect her intellectual
property. I think it will be because the printed Lexicon qualifies as
a scholarly work and is allowable under the Fair Use doctrine.

I do think that the fact that it previously appeared on the Internet,
with JKR's blessing, will work against her case. As I pointed out
earlier, the mere fact that the published version is intended to make
money will not necessarily work against it, and the fact that it does
*not* make original use of her work (other than some degree of
commentary and analysis) will actually help the Lexicon's case. Now if
Steve had written and attempted to publish "The Life and Times of
Severus Snape" or "Severus Snape and the Four Marauders," he wouldn't
have a leg to stand on. And even the percentage of allowed quoted
material varies, depending on the type of book involved. Naturally, an
"encyclopedia" or other reference work will have more quoted material
than an analysis of JKR's alchemical symbolism or the motivations of
her characters. (Fanfic, which involves wholesale use of JKR's
characters and their world in ways that she never imagined or
intended, is a whole 'nother ballgame and is not really relevant here,
though without question, fan works of any kind will be affected.)

So the question is whether the Lexicon counts as scholarly research
(as a book of literary criticism--or a concordance--undoubtedly
would), and how much quoted (or summarized or paraphrased) material
should be allowed in such a work.

JKR's claim that the Lexicon and the trial have made it impossible for
her to work on her own encyclopedia is irrelevant. Her claim that the
Lexicon makes it unnecessary to read her books is, I think, untenable.
The Lexicon is not Cliff's Notes, which abridges the plot in
chronological order, with comments on the characters and symbolism. No
student is going to read the Lexicon and write a book report or an
essay purporting to analyze the motivation or development of JKR's
characters based on the fictional/factual portions of the Lexicon (and
if they use the essays without citing them, that *is* plagiarism). The
Lexicon exists to provide information *about* the HP books. The HP
books exist to provide entertainment. They are not interchangeable,
and they are not in conflict. And, as I've said before, her own
unwritten encyclopedia, as described in a recent interview, is
completely different from the Lexicon, not only because it would
contain information that Steve V. has no access to but because of the
arrangement.

As for JKR's claim that the work Steve did wasn't work at all because
she had done the work of writing the books, what can I say except that
she has evidently never searched through her own books for quotations
or she would know how time-consuming that is. Steve V. is saving other
readers that labor by telling them where to find the quotations.
Nevertheless, it's still necessary for the reader to see the quoted or
paraphrased material in context and to form his own conclusions. (I've
read entries in the Lexicon that I disagree with. How is that possible
if he's only restating what JKR has already said?)

Summary and paraphrase also require skill and effort. They are not a
lazy or sloppy form of writing. They are difficult (especially
summary, which requires separating the essential information from the
extraneous details, in essence reducing or condensing the specific to
the general).

He *has* done work that is not hers. He has made it much easier to
find the information *in her books*--exactly as an index does.

On another note, what I would really like to see is an annotated
edition of JKR's books, one pointing out the inconsistencies and
etymologies and literary or mythological allusions, etc., in
footnotes). (Anyone who has read "The Annotated Alice" will know the
kind of book I have in mind.) But such a book would require the use of
JKR's notes and her cooperation, and, given her current state of mind,
would almost certainly not be allowed.

My concern with the outcome of the case is entirely for scholars who
want to write about the works of living authors or works still under
copyright. And that includes translations and literary analysis as
well as reference works. Of course, the rights of the author should
not be infringed upon. Of course, those secondary works (and I am not
inventing this term) depend on the primary work (again, I'm not
inventing the term) for their very existence. The rights of scholars,
teachers, students, book reviewers, and anyone else who wants to write
*about* an existing work should also be protected.

It's a very different thing from, say, writing a novel about a magical
child who attends a boarding school for witches and wizards with
characters obviously derived from JKR's works. A Snape by any other
name would still be Snape. The same with Dumbledore and Quidditch and
Hogwarts and any other recognizable aspects of JKR's world. That's
plagiarism. That's stealing.

But is a reference work about a work of literature "stealing" even
though it's not claiming to be original in the way that a work of
fiction does? That's the question. And, as far as I can see, at least
with regard to the Lexicon, the answer is no.

I really don't see what scholars who use the works of living authors
would have to fear if RDR wins the case, but if JKR wins, the whold
concept of Fair Use is in jeopardy. As for fanfic, I think it will
have its turn in some other case, perhaps involving some other author,
and the fanfic writers will lose. The Fair Use doctrine was not
designed to protect writers who use another writer's characters and
concepts to create their own stories. (No offense intended to the
writers of fanfic; I'm merely stating my interpretation of Fair Use,
which predates fanfic as we know it.)

Certainly, the whole existence of the Internet and the uses to which
it can be put makes a rethinking of the concept imperative. I only
hope that the doctrine continues to protect the rights of scholars and
teachers, which it was designed to protect in the first place.

Carol, who thinks that some such lawsuit was inevitable and fearing
the worst for everyone from dissertation writers to HPfGu posters