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

[Carol]

Goddlefrood:
> <snip>
> 
> The portions of the Copyright Act of 1976 and the Lanham Act upon
> which the Plaintiffs (outmoded per Lord Woolfe, of course) rely
> are:
Carol responds:

thanks for the very helpful definitations of "compilations" and
"derivative works" and for the relevant portions of the copyright act
(I had already posted the fair use portions, but it doesn't hurt to
have them all in one post).

Lee has already pointed out that the dispute is about copyright
violation vs. fair use; anything related to trademarks is either
incidental or already settled, as far as I know. JKR is calling the
quoted portions of the Lexicon "plagiarism" (which I've already
explained is a moral or ethical violation and is only illegal if it
violates copyright law). She also claims that the Lexicon contains
quoted material without quotation marks or attribution (probably very
close paraphrases); however, I'm not aware of any examples. The
entries that she specifically mentioned contain no such flaw that I
can see. Her lawyers claim that the site is 91 percent her work,
another claim that to me seems unsubstantiated by valid evidence. I
haven't read the entire Lexicon, though I refer to it frequently, but
what I have read is "derivative"--it depends on JKR's work for its
existence, but it is not her own words. And ideas, as you know, can't
be copyrighted.

Goddlefrood:
> 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).

Carol responds:
Since indexes are usually compiled by professional indexers, all JKR,
or rather Bloomsbury, has to do is authorize someone to do it. An
index should not depend on JKR's encyclopedia, which is an entirely
different type of work. Actually, we need two indexes, one for the
Bloomsbury editions and one for the Scholastic editions (with
allowances for any slight differences between the paperbacks and the
hardbound books, such as the presence or absence of a few lines in
Draco's conversation with Draco in HBP). I can't imagine her compiling
an index herself or anyone expecting her to do so.

Goddlefrood: 
> 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.

Carol responds:
Not dull at all. I think the definitions you quoted were very helpful.
However, I disagree that it's black and white (so does the judge), and
I disagree that provision 4 ("the effect of the use upon the potential
market for or value of the copyrighted work") makes it likely that the
plaintiffs will win. Even if she had already written the encyclopedia
and the Lexicon took away some of her profits, it might not be unfair
competition. It's not as if she'd written a plot synopsis of her next
novel and he'd used it to write his own. But the point is, her
encyclopedia, if written, would incorporate materials that Steve V.
has no access to and for that reason alone, his can't possibly compete
with hers. Moreover, the proposed format of her work, outlined in an
interview, is very different from his (which, BTW, is not really an
alphabetical rearrangement of her material, as she describes it, but a
thematic or categorical rearrangement with subcategories and
alphabetically arranged entries within each subcategory. (it's a lot
easier to find information on the Lexicon than it is in the books, and
that would remain true even if readers had access to an index, which
would still require them to look up the references individually and
compile it or incorporate it themselves in some useful manner. 

Anyway, I don't think item 4 is the primary bone of contention. I
think it's provision 3, "the amount and substantiality of the portion
used in relation to the copyrighted work as a whole." The question at
issue, according to JKR, is the Lexicon's use of her material, and the
pie chart claims that 91 percent of the Lexicon is her work. But even
if that's true, what matters is whether 91 percent of the Lexicon is
her *words*, the only copyrightable element of her work. And if those
words are rearranged in a summary taken from various chapters of a
book or various books, or even if they're properly cited paraphrases
that don't pick up her exact phrases without acknowledgment, then he's
not guilty of plagiarism (if that even matters when the issue is
copyright violation. So the question that needs to be answered is
still how much quoted material is allowable in an unauthorized
compendium or compilation. I'm a bit confused by the word
"substantiality," which is redundant if it merely refers to the amount
of quoted material. If it relates to the amount of the *original* work
that's copied, an occasional full page of quotations from seven books
(arranged by book)--let's say one hundred such pages, but I'm
guessing--is not a substantial portion of a series involving some
3,700 pages (agian, I don't remember the exact figure) is not
substantial. In fact, it's about three percent, if my math is correct
(and I'm not taking any bets on that).

Anyway, I hope for the sake of all those other unauthorized
"compilations" (encyclopedias and and fan guides what not) about the
HP series or any other copyrighted works, or rather, the sake of their
author, editors, and compilers, that the case goes against JKR.

Carol, who is not a lawyer but does know quite a bit about plagiarism
(which is not the same as copyright infringement, JKR to the contrary)
 and a bit about the publishing industry as well