Another Summary of Fair Use

[Carol]

Carol  earlier (heavily snipped):
 
> > So, granted, the Lexicon is a flawed work which, IMO, should not
be published in its current state.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).

Snow responded: 
> I believe this is an excellent observation up to this last paragraph. 
> I don't understand how you could view the Lexicon as a flawed work 
when  JKR herself proclaimed it to be "my natural home" where she 
would go to "check a fact" rather than buy a Potter book for 
reference. (Quotes from JKR website, fan sites 2004 Lexicon) 

Carol responds:

My remark was a concession. My main point was that the Lexicon is not,
for the most part, JKR's words. Based on the random entries I looked,
it's most a listing of canon facts, information gleaned from a reading
of the books but not copied directly. The few quotes and close
paraphrases are properly cited. However, I did encounter flaws, the
most important being that the Snape entry is not up to date (it still
contains a debate over Snape's loyalties that was relevant to HBP but
is now obsolete thanks to the revelations in DH) and the Sorting Hat
entry *is* what JKR (inaccurately, IMO) claims that the entire Lexicon
is: almost entirely JKR's own words. The lyrics to the sorting Hat's
songs have been quoted more extensively than fair use normally allows.
 That entry, unlike the others I cited, does include material that
would require permission to use.

So even though I'm on Steve V's side in this case, I do find flaws in
the work. Entries that don't take into account the events of DH need
to be updated; the Sorting Hat entry (and any others that rely too
heavily on JKR's own words) need to be revised to meet fair use
guidelines.

I see no reason why JKR can't simply point out places that need to be
revised. Ane I still think that RDR was trying to rush to publication
without giving Steve V. the necessary time to make sure that he wasn't
violating fair use or making any substantial errors and that he was
incorporating material from DH to make sure that all of his entries
were up to date.

The claim that the entire Lexicon is 91 percent JKR's words is, I
think, quite easily disproved and most of her other complaints (her
emotional state, the amount of work she put into the original books,
the supposed competition between his book and her unwritten
encyclopedia, even the profit that RDR and Steve V. might make from
his published book) are irrelevant.

But as a courtesy to JKR, and to keep her from appealing the case and
causing who knows what harm to the fair use doctrine and the rights of
fans and scholars alike based on an original work, I think Steve V.
ought to make certain changes (updating the entries, altering the
Sorting Hat entry so that it consists of more commentary and summary
and less quoted material, correcting any errors that JKR considers to
be particularly egregious--admittedly, the few errors she cites, such
as the hypothetical etymology of Alohomora, are minor and could not
have been corrected, JKR to the contrary, by a Google search).

Her earlier remark that the Lexicon is her "natural home" is, of
course, inconsistent with her comment that she only consulted it twice.

Snow: 
> As far as JKR correcting errors, I would laugh, shudder and gulp at 
> the notion that this woman (great writer, really bad at math and 
> details that were dismissive to "the meat of the story" such as the 
> missing 24 hours) could offer an argument to what Steve has 
> rationally demised as fitting given thee
um
 given in her story.

Carol responds:
I'm not talking about JKR's own errors in "maths." If I were to talk
about all the problems involving the number of students in the school
or the Weasleys' ages (even James is said three times to have been
fifteen in SWm when he would actually have been sixteen, as would
Severus, Remus, and Lily--probably Sirius as well) or the missing
twenty-four hours or the amount of time that the Potters were under
the Fidelius charm, I'd be here all day. I'm not talking about steve's
pointing out JKR's inconsistencies, which he has every right to do, or
her "correcting" him by asking him not to mention them.

I'm simply saying that if Steve is wrong in some of his hypotheses,
such as his etymologies or his assertion that the house at Spinner's
End was Severus snape's childhood home (an inference, not a canon
fact), JKR should point them out and Steve should, as a courtesy,
correct them. (He does, of course, have the same inalienable right to
make mistakes in his book as JKR has to make them in hers. I'm not
talking about law, in this instance. I'm talking about courtesy and
civility. JKR, of course, ought to be civil as well. Instead, she's
almost as hysterical as Trelawney confronting Umbridge and as
vindictive as Hermione confronting Rita Skeeter. (She evidently has no
concept of fair use; she seems to think that an author's right to
control the interpretation and even the quoting of her works is
absolute. I think it was Lee Storm (not the other Lee, aka CJ) who
said that JKR seems to want absolute control over the Potterverse. I
agree with that statement. Ever since JKR responded to a reporter's
questioning of her assertion that DD was gay with "He's my character!"
I've felt that she considers her view of the characters as definitive,
without regard for the process of interpretation that occurs naturally
for each reader as he or she encounters the printed page. This lawsuit
seems to demonstrate that same mentality. She wants more control over
books about her works, whether those books are informative or
interpretive, than is allowed by law. The Fair Use Doctrine exists to
prevent the sort of control that she's attempting to assert. Yes, the
original author has rights (for example, the right to prevent pirated
copies or unauthorized abridgements), but critics, scholars,
reviewers, and, these days, fans, have right, too. And JKR needs to
understand and acknowledge those rights. A courteous request to update
the entries, to incorporate "facts" from DH, to refrain from quoting
so much of the Sorting Hat's songs (song lyrics do require permission
from the copyright holder) is perfectly legitimate and ought, IMO, to
be honored. 

A lawsuit claiming that the entire Lexicon is "plagiarized," that her
words have been "stolen," that the Lexicon is nothing but a
rearrangement of her words and ideas and the work that Steve V. did on
it is really her work is just absurd. Even if the book were
plagiarized, which it isn't, plagiarism is an ethical violation, not a
legal one, unless it involves copyright infringement. And the only
entry among those I cited (obviously, I didn't check every entry, only
a random sampling) that violates copyright is the Sorting Hat entry.
(A printed version of the Black Family Tree would probably also
violate copyright, but it seems that RDR has already agreed out of
court not to use any illustrations. The rights to the art from the
Scholastic editions would be Mary GrandPre's, in any case, not JKR's.)

Snow: 
> JKR trusted Steve's work enough that she could count on it to be 
> accurate when she was writing the books but she now feels that 
> her `proposed' encyclopedia could be jeopardized by Steve's book
How? 

Carol responds:

Whether JKR regarded it as accurate or not is somewhat beside the
point I was making, which is that the Snape entry, for example, is not
up to date. It may have been accurate when he wrote it, but the
question of Snape's loyalties is no longer a matter of debate. If
Steve wants to make his book as useful as possible, it should be
revised to incorporate information from DH. (Who is still buying "The
Great Snape Debate" by Orson Scott Card and somebody or other? No one
that I know of. The book is obsolete. Any entries in the Lexicon that
are based solely on HBP and earlier books without incorporating DH are
also obsolete, and its in Steve's own best interests, and that of his
publisher, to update them.)

I agree with you that JKR's proposed encyclopedia is not being
threatened by Steve's project. He is merely compiling information from
the books in a format that enables readers to find information about
JKR's characters and other creations more easily than they could do by
searching through the books, summarizing and occasionally analyzing
canon, with a few quotations and paraphrases as illustration. Her book
would be wholly different since it would include information that
Steve has no access to, her own notes and intentions and writing
process. For that reason, hers would be more authoritative than his
(though a reader is still under no obligation to accept an author's
interpretation of her own works as definitive if it conflicts with
what's actually on the page :-) There's no way, for example, that
Charlie Weasley can be just three years older than Percy if Gryffindor
hasn't won the Quidditch Cup since Charlie left *and* they haven't won
the cup for the last seven years. If I go by the books rather than by
what JKR said in interviews, Charlie must have left Hogwarts at least
seven years before the beginning of Harry's first year and Percy's
fifth, which would make him at least eight years older than Percy. A
book like the Lexicon provides a useful corrective to that sort of
error. And JKR is still confused regarding the "missing twenty-four
hours"!)

Snow: 
> If she's talking about competing with Steve's book
that just sounds
absurd! What Potter fan would deny the writer her version? (Everyone
would buy her version if they are a Potter fan) 

Carol responds:
I agree with your first sentence. However, I'm not so sure that all
Potter fans are as likely to buy her encyclopedia (if she ever gets
around to writing it) as they would have if she hadn't brought about
this lawsuit. And, as I said, I see no reason to accept her view of
her characters as definitive (she's stating her *intentions,* which
may or may not have been realized on the printed page, which is
subject to interpretation by the reader whether she likes it or not),
and if she tells me that Hogwarts has 1,000 students when my
arithmetic tells me that it has roughly 280, I'll trust my math over
hers. Same with fifteen-year-old James and who knows how many other
instances.

Snow: 
> If she's concerned with monetary gain, I feel sad for her and the 
societies that she feels she could represent (she has more than enough
money to suffice). 

Carol:
She claims to be concerned about the loss of money to charity is the
Lexicon takes away readers of her encyclopedia. I'm pretty sure that's
and excuse and she's really concerned about other people using and
interpreting her characters. (I don't think she's claiming that the
Lexicon would cut into her profits, or WB's, from the HP books
themselves, which is clearly absurd.)

Snow: 
> If she's talking about control, I hope for all our sakes she hits a
dead end! 

Carol responds:
That's *exactly* what she's talking about. She wants to control the
use and interpretation of her characters and other creations, from
Hogwarts to the Sorting Hat. But an author simply doesn't have that
right. She has some control over how her actual words are used (though
the amount of quoted text that can be permitted is not firmly
established and depends on the nature of the secondary work), and WB
controls the trademarks (I can't go out and open a store called
Severus Snape's Potions Emporium), but a reference book relating to a
published work or works is another matter altogether. IOW, I, too,
hope she hits a dead end, for the sake of fans and Potter scholars and
everyone else whose rights need to be protected by the fair use
doctrine. (I'm not talking about fanfic, which will no doubt come up
in some future lawsuit, particularly if JKR wins this one. I'm talking
about reference works, particularly fan-created, nonscholarly
reference works intended for use by fellow fans, not just the Lexicon
but any similar works by other authors, whether they're about JKR's
books or Ray Bradbury's.)

Snow: 
> I remember sometime back, I believe it was Heidi, (forgive me if I'm
wrong) who informed us that we had to be careful in our postings of
our verbatim usage. You had to acknowledge JKR, where you found the 
quote etc. or your post may not be allowable for fear of legality. 

Carol responds:
I'm not a List Elf, so I'm just speaking here as an editor and a
former English teacher. I would advise everyone to quote as accurately
as possible and to provide the source of the quote simply to avoid
accidental plagiarism (an ethical violation, not a legal one) and as
an aid to fellow posters who might want to find the quotes, but I
seriously doubt that JKR will sue us or even write an angry leter of
protest if we paraphrase too closely (assuming that she even reads our
posts). No one here is claiming her words as their own. The only
problem might be a long post that consists almost wholly of quoted
text with no analysis or commentary by the poster, which would,
technically, be a violation of copyright. (And, really, I doubt that
she would sue the poster even then. It's not as if we were going to
publish the quoted passage and be paid for it.)

If we're quoting from memory, we should say so. If we're providing an
exact quote, we should cite the page reference. But that's a matter of
courtesy and ethics, not copyright law. And we can certainly refer to
an incident, such as the firing of Trelawney or the murder of Harry's
parents, without any citation at all. JKR doesn't own her ideas or her
characters ("He's my character!" to the contrary) or the incidents in
the books. Only the words are copyrighted. (I wouldn't, for example,
quote the Sorting Hat's song in its entirety, only the relevant lines
or verses, even though it's most unlikely that she would so me for
doing so in a post to a discussion group.)

Snow: 
> Given the currant occurrence, could anyone use our posts (many were
beyond excellent) for profit or would those posts also be subjected 
to similar scrutiny? 

Carol responds:
As I understand it, our words are copyrighted even if we don't file
for copyright, so if someone used our posts in a published book
intended for profit without asking our permission first, the author of
the post would have the right to sue. I'm not sure about the posts
being "subjected to similar scrutiny" part. If one of our brilliant
posters were to collect his or her posts and present them to a
publisher as a collection of critical essays and the publisher decided
that they were worthy of publication (or, alternatively, if the poster
presented one of his or her analytical posts, with the quotations and
paraphrases properly cited, to a scholarly journal) the essays would
be protected by the fair use doctrine. If *someone other than the
author of the posts* had the temerity to submit those posts for
publication, claiming authorship, that would be both plagiarism and a
violation of copyright.

Snow: 
> The answer, I'm sure, rests with the result of this trial. 

Carol:
Well, no. Not really. Discussion groups like HPfGu are protected by
the Fair Use Doctrine already. It's published works like the Lexicon
in printed form that are in jeopardy at the moment. But if the Fair
Use Doctrine is made more restrictive and the copyright holder's
rights are extended, I will be seriously concerned about the
implications for serious scholarship, education, book reviewing, and
Internet fansites alike.

Carol, half-wishing that she could send JKR on a trip to Majorca with
Aunt Marge :-)