Prayers For Lexicon Steve and the great debate on Copyright.

[Teri Gardner]

Hello again,

I get the HPFGU-OT Chatter list in digest format and for some reason cutting and pasting isn't working, but I wanted to respond to Lee Kaiwen's post.  Sorry for lack of quotes from the original message, but Outlook is giving me grief when it comes to cutting and pasting in a new email (dunno why, I can do this at work, but not on my home computer where I'm currently writing this from).

So, onto Lee's post: 

"Fan endeavours" is an ambiguous term I used in the post, but I was a bit more specific in my question to the lawyers (one of which was an HP fan and a fan of Star Trek as well, even if he wasn't participating in fandom).  In his opinion, fanfiction, fanart, fan films, fan plays, and pretty much anything else inbetween that hadn't gotten the permission of the original creator or his/her estate was considered copyright infringment.  Then again, he was one of those lawyers who had a very closed interpretation of copyright law.  Another considered fanart, fan plays/films and stories that were clearly parodies of their favourite shows, etc.,  not infringement, but considered most fanfiction, fanzines, many websites, and the like to fall under the umbrella of copyright infringement. Another lawyer I spoke with was somwhere in between in his interpretation. It's still ambiguous and honestly if any of it went to court, decisions would be made on a case by case basis, but I was asking a general question.

As for legal precedents and cases, in all honesty, even though I work for and have worked for some of the top law firms in Canada, getting a legal opinion in writing would be expensive for me to do.  I would love to cite legal precedent complete with cases and so on and so forth, but I can't afford to pay a lawyer and the several students not to mention any legal assistants that are billable, just to get a question I asked out of some concern and curiosity answered.  I may get a bit of a discount, but er...it would still be expensive.

You made reference to the references books you had in your bookshelf on gospel harmonies that are merely rearrangement of biblical texts.  The Bible is under public domain and no one owns the copyright to it.  Some translations, yes, but that's about the extent of it.   So, I'm not sure how this was relevant to the current case where JKR is very much alive and from what I've been gathering, the other reference books that have been published on the HP universe not only contained some analysis, research and critique, but have been put out with her and WB's permission.

In the case of JRR Tokien, a deceased author, his estate has given permission for reference books to be published.  Copyright on written works goes on for some time after the author's death.  Anywhere from 50 to 95 years depending on the country in question.  The estate can renew if they choose after that time period expires.

As for money exchanging hands, this becomes a bit of a tricky issue and I don't believe anyone has ever gone to court over it unless a clear profit was being made and the original creator felt this was cutting into their own profits, because it usually ends at the cease and desist letter.  The general belief from the lawyers I spoke with (and again I don't have any specific examples of anything going to court) is if money is changing hands, whether a profit is being made or not, an original creator can possibly have a case under the copyright laws. I only know personally of two cases where fanclubs or fans had their practices shut down because of the money issue - as I mentioned in my original post, Colleen Doran, creator of "A Distant Soil", shut her "official fanclub" down because of the issue with the funds the club was generating (I know it was operating at a loss, but that didn't seem to matter much to Colleen's lawyer) and another fan who made t-shirts of Elfquest characters (Wendy and Richard Pini's creation) and sold them for a very tiny profit (she said she did it for friends initially, who paid for the cost of the materials and then gave her a bit extra for her troubles and then it got around she was making them and more folks asked for them).  WaRP Graphics (now Warp Graphics) issued her a cease and desist letter, which she complied and that was the end of that.

And yes, internet as a medium for publishing is still tricky and there are authors and film production companies that will exercise their copyright on websites and others who don't really see it as such.  There seems to be a growing belief that the internet is a publishing medium.  One non-legal example is a friend of mine approached a publishing house to pitch a novel she wrote.  They found large chunks of the novel on her internet blog and passed on the book, even going so far to tell her that while she is a talented writer, and they would have normally considered her book, since she had "published" it on the internet, it was considered already published.  She no longer posts her original work on the internet at all.

>From what I understand, one of RDR's arguments is, because JKR not only gave her blessing on the site, but gave it an award, that she has endorsed the lexicon and should not be able to halt its being published in book format.  This is an implied license and this is one of the things on the table.  If RDR wins on that grounds, then this is the thing that could "kill" fandom as we know it.  Here's a link to some interesting comments on the issue: http://praetorianguard.livejournal.com/279585.html#cutid5

I meant quoting as in verbatim.  If one is quoting a piece of literature, it is customary to put it in quotations and reference it along the way.  I'm given to understand that in the manuscript for the Lexicon book, Steve Van der Ark did nothing of the sort.  I can't confirm it, because I haven't seen the manuscript, but that's one of the claims JRK is making.  If that's the case, then it can be considered plagiarism.  I would have hoped that someone of SVA's background would have known better, but people sometimes do strange things even when they should know better.

I know a few folks have taken selected sections of the Lexicon, using them as proof that SVA is not using JKR's words directly from the series, but the Lexicon is 400 pages plus long in book format.  I know supporters of SVA are using some of these entries as proof, but really, one needs to look at the whole work, not just one or two entries.  I personally haven't had much use for the Lexicon since I have a pretty good memory of the books and can cite details that even surprise me (why can I remember stupid minutia and not the date of my best friend's birthday is beyond me).  

Also, just a note because I did notice this a few times, trademark and copyright are not the same thing.  Trademarks are a "use it or lose it and protect it as much as possible, and then some" sort of deal and WB guards its trademarks jealously.  Copyright is a different matter and I believe left more open to interpretation and is more fluid.  They can be related to some degree, but they are essentially a different animal.

As for the case in progress I have this to say:  RDR's lawyers needed to prepare them and SVA for testifying on the stand.  Those testimonies were a huge mistake and they are not looking good in this case.  RDR's outright lies have come to bite them on the arse and SVA really should be careful about blaming RDR for the state of things.  I've seen authors slag their publishers before and have never been published again (I have two friends who did that - huge mistake - no publishing company will touch them and they were both extremely talented and imaginative writers).  Claiming "They made me do it, I did nothing wrong," is not going to fly.  

The theatrics are a bit much on both sides.  Save it if this case goes to a jury.  The judge doesn't give a rat's posterior.

The famous (or infamous) pie chart.  Exaggeration or not?  Some say yes, some say no.  I say it's likely an exaggeration of what the truth is, but that's pretty typical of these sorts of things.  Still, it's a clever move on JKR's part.  And WB and JKR's lawyers are on the ball.  Even if they are in the wrong (which I don't personally think they are), they have a really well prepared team of lawyers and they're eating the other side for dinner, bones and all.  I actually feel sorry for RDR and SVA, which I didn't before (I'm of the "you made your bed, you lie in it" sort of gal when it comes to legal cases that go to court, but man, ouch!).

The judge's request for the two sides to sort it out on their own:  I like this idea very much. I personally feel that if SVA and RDR played their cards in a slightly different way (especially RDR, frankly their contemptuous attitude towards JKR and WB prior to the case going before a judge was ridiculous and I feel this is likely THE reason this went as far as it has), this would not be an issue.  Having worked with WB in the past, I have learned this very well, you do not EVER want to piss them off.  NEVER DO IT.  Let me reiterate that...DO NOT UNDER ANY CIRCUMSTANCES PISS WARNER BROS. OFF.  They will set out to destroy you in the most brutal way possible.  I kid you not, they are nasty.  Thing is, a lot of the time, they are right. 

On a side note, among my many hopes and dreams, I want to be a published author of a fantasy series (which I'm working on). When it comes to fandom, should I garner any fans, I originally decided I would take the Warp Graphics approach:  You can play in my world, but not with my main characters.  I thought that would be fair.  Now I'm not so sure.

Teri


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