[HPFGU-OTChatter] Re: Where's the Grey? (was: That case and that book)

[Lee Kaiwen]

Me:
> Copyright protects expression, not ideas, so as long as 
 > Steve's lexicon simply restates the ideas in HP in his
 > own words, he is not in violation.

nrenka:

> Problem is, when it comes to fiction, it's actually not so 
 > clear that it's only expression and not ideas, by
 > current case law. Check out the case here:

> To quote the relevant bit from the analysis of the case here:

Yes, the Seinfeld case. But I don't think you cited all the relevant 
bits. While the judge did determine that fictional facts can be 
copyrighted, his finding against Castle Rock wasn't based solely (or 
even primarily) on that, nor does it appear to me (if the Wikipedia 
description is clear) as if he would have ruled against the defendants 
if that *had* been the sole factor. For example:

"The court further held that the more critical inquiry was whether The 
SAT merely supplanted the Seinfeld episodes or rather if it added 
something new, providing new insights, new aesthetics in the manner that 
the fair use doctrine was meant to enrich society."

And

"The court ... concluded that the purpose of the book was to entertain 
the Seinfeld audience with a book about Seinfeld, much the same purpose 
as the television show."

And

"The court emphasized that derivative works were based upon preexisting 
works. They transformed an original work into a new mode of expression, 
but unlike a work of fair use expression, a derivative work's purpose 
was not transformed. In addition, when a derivative work transformed an 
original work into a new mode of expression such that little similarity 
remained, it would not infringe the copyright of the original work."

In the Seinfeld case the court applied all four fair use tests, and 
found the trivia book in violation of several of them:

The second test:

The court held that the nature of Seinfeld was fictional, and the second 
factor tends to favor works based on fact. Works of fiction generally 
enjoy greater copyright protection because of their higher content of 
protectible material. However, the court noted that transformative use 
can lessen the importance of the nature of the copyrighted work, but 
since The SAT held slight or non-existent transformative purpose, the 
fictional nature of Seinfeld disfavored a finding a fair use."

Note that it the lack of sufficiently transformative purpose of the 
trivia book was a key factor in this determination. If the book *had* 
been sufficiently transformative, it appears as if the court might have 
ruled differently, *despite* the copyrighted nature of the original work.

The third test:

"Here again, the transformative use affected the court's analysis. Use 
of a substantial part or the 'heart' of a protected work is justified 
when the character of the work is criticism or parody, because these 
expressions necessarily demand a greater quantity to be useful. The 
court reasoned that a greater degree of material from Seinfeld would be 
necessary for an accurate critique of the show's 'nothingness', but 
because the court found little transformative use for the purposes of 
critique, this weighed against defendants."

The fourth test is the most interesting to me, and I'm not sure how to 
read the JKR/SVA case in light of the reasoning:

"The court noted that the fourth factor was not to be given the greatest 
weight, but to be taken equally with the other three in a determination 
of fair use. The analysis for market effect does not look to whether the 
secondary work detracts from market of the copyrighted work, but rather 
does it substitute the market of the original (the nature of copyright 
as a monopoly on publication does not permit a substitution). The court 
held that the differences in form between The SAT and Seinfeld and the 
lack of transformative purpose made the book a derivative work in a 
derivative market. Because the SAT was the only Seinfeld trivia book in 
existence, it completely substituted this derivative market for the 
show. The court further reasoned that even though the authors did not 
intend to enter the trivia book market, the existence of The SAT 
effectively usurped Castle Rock's right to do so. If the derivative 
market was one that the copyright holder would generally develop or 
license, a secondary author would be barred from entering it. On the 
other hand, if the market was one generally protected by fair use, such 
as criticism, parody, or academic scholarship, the copyright holder 
could not enter those markets and attempt to preclude secondary authors 
from entering."

In my reading of the Wikipedia discussion, the primary factor in the 
court's decision involved the transformative nature (or in this case the 
lack thereof) of the trivia book; the copyrightable nature of fictional 
facts was neither a premise nor a conclusion of the court's reasoning, 
but simply an argument it considered along the way.

I think the lexicon case is of a substantially different nature, 
incomparable to the Seinfeld case. In light of the above, I think the 
lexicon would easily pass the transformative test; its purpose is 
clearly different from the HP series. And having cleared that 
fundamental hurdle, its unclear to me that the remainder of the 
reasoning in the Seinfeld case would apply.

The court's reasoning on the fourth test was more interesting:

"The court further reasoned that ... the existence of The SAT 
effectively usurped Castle Rock's right to do so. If the derivative 
market was one that the copyright holder would generally develop or 
license, a secondary author would be barred from entering it."

What does THAT mean? Could it be argued that the lexicon/encyclopedia 
market is one JKR would "generally develop or license"?

--CJ