Another Summary of Fair Use

[Lee Kaiwen]

I found YAFUS (Yet Another Fair Use Summary). This was an Anonymous 
comment attached to a discussion of The Trial, so I have no idea how 
accurate it is, but (unlike me) the guy sounded like he might know what 
he's talking about.

====================
Fair Use:
..
(1) Nature of the copyrighted work: The HP books are creative works. 
They have been published. Factor 1 weighs in Rowlings favor.
..
(2) Nature of the use: The use is not superseding; it is TRANSFORMATIVE. 
The compendium is nto a novel that culls parts from the HP books. It is 
a reference and critical work. This has been called the most important 
distinction, and it goes to RDR.
..
(3) Amount of the copyrighted work used in relation to the copyrighted 
work as a whole: Substantial amounts of copyrighted expression, at least 
in the form of plot and character, will need to be used in the 
Compendium. This factor goes to Rowling.
..
(4) Effect on the market for the copyrighted work: Again, this book does 
not supplant or replace Rowlings books. Indeed, publication of this 
kind of compendium/concordance likely INCREASES the market for the 
copyrighted work. This ties in with the idea of transformative use, but 
logically follows based on how this books use affects the book-buying 
public. This factor goes to RDR.
====================

The question I have is on the third test: "Substantial amounts of 
copyrighted expression ... will need to be used in the Compendium".

Since copyright protects the expression, not the idea, doesn't the third 
test only cover verbatim -- or near-verbatim -- borrowings (and, as a 
result, doesn't the above summary of the third test collapse in on 
itself)? Simply summarizing plotlines, character bios, etc., wouldn't 
run afoul of this test. IOW, Vander Ark would have to be shown to have 
borrowed JKR's actual words, not merely her ideas, for the third test to 
apply. Am I wrong?

--CJ