The Fair Use Doctrine

[sistermagpie]

Carol:
> 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. 

Magpie:
Are you assuming that as it stands now a Lexicon of any other 
author's work would not be challenged the same way? I would actually 
doubt that if I wanted to put together an encyclopedia of a series by 
some other author that I'd have the right to do it without 
permission. I can totally see somebody saying that yes, this book is 
very helpful in the way that it makes the facts in JKR's books easier 
to find, but you're still not allowed to list things that the 
copyright holder made up and sell it for profit. If it is a scholarly 
work, then there's no problem--other books have already been 
published that work that way. 

But I don't know whether the interprerative spin the Lexicon 
sometimes puts on things necessarily counts enough to make it 
scholarly. So that would make it derivative rather than 
transformative, and so potentially infringing on the copyright. That 
there's definite value in presenting the information this way in a 
handy volume doesn't make it fair use. And if it is scholarly, they'd 
have to show that they didn't take more of the copyrighted material 
than absolutely necessary for their scholarly work.

There certainly is a lot of work that goes in to rearranging the 
facts to make this reference book, but I don't know whether it's the 
kind of work that makes it fair use.


Carol:
The rights of scholars,
> teachers, students, book reviewers, and anyone else who wants to 
write
> *about* an existing work should also be protected.

Magpie:
But they're not necessarily being unprotected by this case. If this 
isn't one of these things that's taken just enough of the original as 
it needs and no more then there's a problem. She's not challenging 
the right of someone to write about her existing work, she's 
challenging that this *is* writing *about* her existing work rather 
than rearranging it and adding little to it. (According to her side 
what's added is a mishmash of "facetious remarks", etymologies, and 
common knowledge.)

It is, of course, very different from writing a novel about her 
characters--trying to publish a fanfic. But it's also very different 
than publishing a book of essays about different aspects of the book 
or a book review or writing a paper on it. The Seinfeld Aptitude Test 
also took fictional facts and repackaged them into a handy format--
and it was ruled as infringement.

Carol:
> 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.

Magpie:
I don't think they're considering it "stealing" in the sense that 
anybody is saying that the Lexicon is claiming to have made up any of 
these characters. But then, nor does fanfic claim to do that. The 
problem is that she feels he's repackaging a section of her work (the 
part of her work that involved creating all these fictional things) 
and selling it and making money off it.

-m