Another Summary of Fair Use

[Carol]

Lee Kaiwen wrote:
>
> 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.
> 
> ====================
<snip>
> (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.
><snip>
> ====================
Lee again:
 
> 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?

Carol responds:

First, your anonymous source is simply giving his own opinion. How
authoritative it is, I have no idea.

However, as I tried to explain in another post in this thread, there
is no set amount of allowable copyrighted text since the amount used
varies according to the nature of the work. As Assia (a_svirn) noted
in an offlist message to me, a dictionary of Shakespeare quotations
would consist almost exclusively of Shakespeare's own words. Granted,
Shakespeare's works are now in the public domain, but a similar work
based on the works of, say, Tolkien or JKR (one living, one dead, but
both still under copyright) would require substantial amounts of
copyrighted text with only, let's say, notes and an introduction to
add to the words of the author and substantial rearrangement, either
alphabetical or thematic or both, to qualify as "transformative."

An index uses nothing but the words of an author and the page numbers
they appear on, but the words out of context are no longer the
author's property, so that's not a problem AFAIK. A concordance, as
you know, also lists an author's words alphabetically but illustrates
the use of those words with quotations from the original works. I've
never heard of a concordance being regarded as a violation of
copyright law; its nature necessitates its being mostly the original
author's own words rearranged in a useful format. (How else, barring a
Google search which might or might not locate all of them, am I
supposed to find all the many references in Shelley's poetry to
"veil," "veils," and "veiled," for example? I know; Shelley died in
1822, but that's beside the point, which is the usefulness of a
concordance for literary analysis of his poetry, in this instance, a
hypothetical paper on Shelley's use of veil symbolism.)

So the nature of the Lexicon as a reference work for people who are
already readers of the HP novels would determine approximately how
much quotation and close paraphrase is necessary as opposed to
analysis, summary, and information on mythology, etymology, etc. from
outside the text. Although I've never seen a companion book organized
exactly like the Lexicon (which, after all, was originally a website,
complete with links), I think that a rough allowable percentage could
probably be calculated by comparison with companion books for other
authors.

If you happen to own "A Tolkien Compass" (ed. Jared Lobdell), for
example, take a look at the first essay, "Gollum's Character
Transformation in 'The Hobbit,' at least half of which consists of
parallel passages from the original edition of "The Hobbit" and the
second edition from th 1950s to show how Tolkien's conception of
Gollum changed as he was writing LOTR. But there's enough summary and
analysis, not to mention rearrangement, to qualify the essay as an
original work despite its huge dependence on Tolkien's own words.

Now granted, Steve V. isn't claiming that the Lexicon is literary
analysis. It has a different purpose; it's a reference work. and that
means that a *larger* percentage will be the original author's own
words. He is not claiming that he wrote JKR's books; he is directing
the reader to passages in the books where the relevant information can
be found.

I'm going to quote a large portion (not the entire article) of the
entry on Severus Snape:

NAME MEANINGS
Birth name: Severus Snape.
'Severus' meaning:
'Severus' has obvious connotations of severity and strictness. There
are also several saints with the name 'Severus.'
'Snape' meaning: JKR says "Snape is an English village" (WEB LINKeT),
probably the one in North Yorkshire near Hadrian's (aka Severus')
Wall. This village also has a 'WEB LINKSnape Castle.' There is another
Snape Village that is near Saxmundham, northeast of Ipswich near the
Alde River.
snape (v.) - 'to be hard upon, rebuke, snub,' c.1300, from Old Norse
sneypa 'to outrage, dishonor, disgrace.' (WEB LINKetymonline)
sneap: to nip; pinch; put down; repress; snub (WEB LINKphrontistery).
Other names: Other names: `Sev' which was Lily's nickname for him,
`Snivellus,' used by James to ridicule him; the 'Half-blood Prince' a
pun Snape made on his mother's maiden name.

Drawing of Severus Snape by Red Scharlach.FAMILY
Birthdate: January 9 (JKR) 1960 (year based on James's dates-DH16).
Deathdate: May 1, 1998, during the Battle of Hogwarts, about an hour
before the dawn (DH32).
Ancestry: Half-blood.
Mother: Eileen Prince (witch --HBP30).
Father: Tobias Snape (Muggle --HBP30).
Childhood: Appears to have had an abusive father (OP26, DH33).
Location of childhood home: A brick row house on Spinner's End by a
river (DH33), in what appears to be a rundown area of an industrial
city in northern England (HBP2).
Relationships: Severus loved childhood friend Lily Evans faithfully,
but in a possessive, obsessive way, until he died. In 1999, Rowling
was asked if Snape had ever fallen in love. Here's what she said: WEB
LINKexcerpt from "The Connection" interview, October 12, 1999 [mp3 audio].

APPEARANCE
Hair: black and greasy, shoulder length.
Eyes: black.
Complexion: sallow, also described as very pale.
Distinguishing features: long, hooked nose, scowl; Dark Mark on left
forearm but not always clearly visible. While Snape is repeatedly
compared to a bat, he is not a vampire (WBD). 

[End of excerpt]

Tell me: Does that sound as if Steve V. is violating copyright by
using too much close paraphrase or quotation? He's taking
*information* from the books, but the few quotations are from
interviews (with links that ovbiously can't appear in the printed
version).

For the rest of the (now outdated) entry, which does include a few
quotations relating to his appearance and some paraphrases of
"Spinner's End," go to http://www.hp-lexicon.org/wizards/snape.html

But if that entry, which I chose because it relates to an important
character that I happen to be interested in and which would, I
suspect, be rather frequently consulted, is 91 percent JKR's words,
I'll eat the rotten flobberworms that Snape made Harry sort through
for his DH detention. Well, maybe not. But, IMO, it illustrates that
the information on Snape is purely informative and in no way
substitutes for a reading of the books. If you want entertainment, if
you want to really know Snape, you have to read the entire HP series. 

OTOH, if you want information on the possible significance of his name
or want to know what JKR said about him in interviews or want to know
where the references to his mother and father are found, the Lexicon
will give you that information. (BTW, the house at Spinner's End being
Snape's childhood home could be an error; at any rate, it's an
inference rather than a canon "fact." And the entry still contains
outdated evidence relating to Snape's loyalties, which, of course,
were definitively established in DH.

If you're not interested in Snape (bite your tongue, Carol!) or think
that his entry is not representative, take a look at the article for
your own favorite character, or try these:

http://www.hp-lexicon.org/wizworld/places/mungos.html (St. Mungo's)

http://www.hp-lexicon.org/wizworld/knight_bus.html (The Knight bus)

http://www.hp-lexicon.org/magic/wands.html (wands)

I did find one entry that JKR might legitimately object to, which does
contain a disproportionate number of JKR's own words:

http://www.hp-lexicon.org/hogwarts/sorting_hat.html (Sorting Hat)

However, the excerpts from the Sorting Hat's songs could easily be cut
down to size with a bit more summary and analysis added to make that
entry similar to the others I've cited. This entry does not seem to me
to be typical, if only because the other characters and artifacts
don't normally spout poetry!

So, granted, the Lexicon is a flawed work which, IMO, should not be
published in its current state. Steve V. needs to update it and JKR
ought, as a courtesy, to be allowed to correct the errors, if any,
that remain after he's revised it and eliminate overzealous quotation
as in the Sorting Hat entry. (It seems to me that RDR books was in too
big a hurry to get it published.) But as far as copyright violation is
concerned, I really don't see it except in the Sorting Hat article
(the lyrics would require permission to reprint).

Carol, who thinks that JKR would have been much better off making a
list of specific objections and requests and that the whole thing
ouught never to have gone to court