Where's the Grey? (was: That case and that book)

[Goddlefrood]

> Carol:
> The question is, how much copyrighted material do they contain
> and how much, if any (for example, the illustrations) was used
> with permission.

Goddlefrood:

Never being one to come into a legal discussion unprepared, I have
to point out first that it appears the focus of the complaint is
in respect of breach of trademark, rather than breach of copyright.
Obviously having said that copyright plays its part. The characters
of the HP series, particularly the main ones, are trademarked by
Warner Bros. The evidence of breach of copyright that has come out
during the course of the evidential hearing appears to me to be
somewhat of a side issue.

The portions of the Copyright Act of 1976 and the Lanham Act upon
which the Plaintiffs (outmoded per Lord Woolfe, of course) rely
are:

§. 101 - Definitions (as pertinent):

'A "compilation" is a work formed by the collection and
assembling
of preexisting materials or of data that are selected, coordinated,
or arranged in such a way that the resulting work as a whole
constitutes an original work of authorship. The term
"compilation"
includes collective works.'

'A "derivative work" is a work based upon one or more
preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which
a work may be recast, transformed, or adapted. A work consisting
of editorial revisions, annotations, elaborations, or other
modifications, which, as a whole, represent an original work
of authorship, is a "derivative work".'

Relevant sections:

'§ 103. Subject matter of copyright: Compilations and derivative
works

(a) The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection for
a work employing preexisting material in which copyright subsists
does not extend to any part of the work in which such material
has been used unlawfully.

(b) The copyright in a compilation or derivative work extends
only to the material contributed by the author of such work,
as distinguished from the preexisting material employed in the
work, and does not imply any exclusive right in the preexisting
material. The copyright in such work is independent of, and
does not affect or enlarge the scope, duration, ownership, or
subsistence of, any copyright protection in the preexisting
material.'

'§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under
this title has the exclusive rights to do and to authorize any of
the following:

(2) to prepare derivative works based upon the copyrighted work;'

'§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by
that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be
considered shall include —

(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value
of the copyrighted work.

The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon consideration
of all the above factors.'

The Langham Act relates to Trademark infringement, the sections
upon wehich the Plaintiffs rely are §1114 and §1125. They are
a little long and can be found in full here:

http://www.bitlaw.com/source/15usc/1114.html
<http://www.bitlaw.com/source/15usc/1114.html>

and here:

http://www.bitlaw.com/source/15usc/1125.html
<http://www.bitlaw.com/source/15usc/1125.html>

As far as I can tell these are the provisions relied on by the
Plaintiffs in respect of their suit against RDR Books and Lexicon
Steve.

On a bare interpretation, being familiar as I am with both the HP
books and the online Lexicon, I am of the view that Warners and
JKR should previal. § 107 (4) of the Copyright Act of 1976 in
particular has been relied upon when JKR was bleating about the
potential loss to her if the Lexicon is published. That's why
fair use will most probably not be allowed in this matter and
the case should be ruled in favour of the Plaintiffs.

The full filing history is available at:

http://dockets.justia.com/docket/court-nysdce/case_no-1:2007cv09667/case\
_id-315790/
<http://dockets.justia.com/docket/court-nysdce/case_no-1:2007cv09667/cas\
e_id-315790/>  (Carol, note there's no www and should not be)

Some relevant case law for anyone particularly interested:

http://www.copyrighthistory.com/donaldson.html
<http://www.copyrighthistory.com/donaldson.html>

- An English case, but where this all started ultimately, that
is in terms of Copyright.

http://supreme.justia.com/us/33/591/case.html
<http://supreme.justia.com/us/33/591/case.html>

- Being a leading and authoritative case from the US Supreme
Court.

There's also a very interesting essay (in German, but with
relevant parts translated) at:

http://www.copyrighthistory.com/fichte.html
<http://www.copyrighthistory.com/fichte.html>

In respect of the Trademarks there's little, if any, defensibility
by the Defendants on that aspect. Warner Bros licences the names'
use and there's more or less an end to it.

It is a pity that there is not any, except an apparently
unauthorised, index to the HP books, but that will change
once the Encyclopaedia proposed by JKR comes out (and despite
her tearful outburst in Court, I believe it will come out).

So, there it is, my opinion of course. I apprehend that the
Plintiffs will prevail, but I also apprehend that there should
not be a significant damages award due to the Lexicon not having
actually yet been published.

Apologies to anyone who read this and found it dull, however the
law often is that way.

Goddlefrood, who finds this suit far from grey, but actually
quite black and white.



[Non-text portions of this message have been removed]