The Fair Use Doctrine

[Carol]

Lee wrote: 
> But what constitutes "quoted" material? Is it strictly verbatim 
reproduction, or does it include paraphrase and summary as well? If 
someone (oh, say Steve, or RDR) wanted to publish something (say,
maybe, a lexicon) that summarizes the life of a fictional character
(perhaps Harry Potter) under an entry called "Potter, Harry James",
without actually reproducing any relevant text verbatim, does that
constitute for legal purposes a "quotation"?

Carol responds:

It took me awhile to find an authoritative answer to this question,
but here it is from "the MLA Style Manual and Guide to Scholarly
Publishing," second edition (MLA being the Modern Language Association):

Like verbatim copying, close paraphrasing of protected expression can
constitute copyright infringement if the borrowing does not meet the
criteria for fair use, The ideas contained in a work, though, in
contrast to the original expression, may be freely used without risk
of copyright infringement" (21.1.13, p. 44).

Of course, use of other people's ideas without citing your source is
plagiarism, but plagiarism, again according to MLA, "is a moral and
ethical offense rather than a legal one" (6.1, p. 151). It can get you
expelled or ruin you in academia, but thoughts and ideas aren't
protected by copyright.

(I have no idea how all this relates to fanfic, especially since the
amount of verbatim text/close paraphrase used is only one of the
"factors" for judging fair use; I'm talking here only about the
Lexicon. Is it a "derivative" work based on the original work, in
which case the right to prepare or authorize it belongs to the owner
of the copyright, JKR? Or is it a "transformative" work that meets the
four Fair Use criteria ("factors") that I've already cited?

Without question, RDR should have sought permission in the first place
and worked with JKr to make the publication of the Lexicon acceptable
to her simply as a matter of courtesy and to avoid a lawsuit. But some
types of books and articles fall under "fair use" even without the
permission of the copyright holder, and the Lexicon could be one of them.

Step 1 for JKR should be to stop worrying about how much work (hers or
his) has gone into compiling the Lexicon, how it's affected her
emotional state, and all other irrelevancies. Step 2 is to familiarize
herself with copyright law, especially the Fair Use doctrine, and
understand how copyright violation differs from plagiarism. And step 3
should be to have someone do a computerized comparison of the Lexicon
(print version) to her books and see what percentage of the text falls
under "verbatim copying" and "close paraphrase."

As for summary, ain't nothin' she can do about it because it's not a
violation of copyright, any more than "transformative" work (including
analysis) is.

In short, as JKR's characters are always telling each other, she needs
to get a grip. (And, much as I pity Steve V., I don't think that
crying on the witness stand will help him, either.)

Carol, who has had the relevant information on her desk all this time
and never realized it till today