[HPFGU-OTChatter] Re: Thoughts from a Different Perspective

[Lee Kaiwen]

me:

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

nrenka:

> And yes, I think the fourth test falls in JKR's favor: 
 > she, after all, had made public her statements about
 > doing an encyclopedia eventually

Hmm, that's not how I read the decision. "Generally" means "usually" or 
"often", and the decision is talking about potentially infringing works 
encroaching on corollary markets that are often subsequently exploited 
or developed. For example, authors often subsequently make movie deals. 
Movie studios "generally" license ancillary merchandising rights. And so 
forth. Tolkien licensed the movie rights to LotR. Larry Niven likewise 
for his Ringworld series. JKR licensed the movie rights to HP. The Lewis 
estated licensed the movie rights for Narnia. Or vice versa. The Star 
Wars and Star Trek franchises have licensed book rights for their 
respective universes. So book and motion picture markets are quite 
commonly cross-developed.

Thus my question above meant, "Do creators of fictional worlds generally 
develop -- or license for development -- encyclopedias of their 
fictional creations?"

And to answer to that, as far as I can tell, is "No." In fact, the 
*only* case I can think of is JKR herself. True, there *are* 
encyclopedias for many fictional worlds -- The Tolkien Illustrated 
Encyclopedia, The Encyclopedia of Known Space, The Unauthorized Narnia 
Encyclopedia, and so forth. But with the single exception of JKR's 
work-in-progress, none of them (AFAIK) was developed or licensed by the 
copyright holder.

 From the Wikipedia article on the Seinfeld case.

"If the derivative market was one that the copyright holder would 
generally develop or license, a secondary author would be barred from 
entering it."

This would include such things as movie rights for books, or book and 
merchandising rights for movies, since such cross-licensing is common.

But the subsequent sentence is equally important:

"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."

The argument is that SVA's lexicon falls into this camp. As such, then, 
JKR's desire to enter the encyclopedia market for her work does not bar 
RDR/SVA from also entering the same market. Claims of the original 
complaint ("Mrs. Rowling has sought to reserve her exclusive rights to 
do so") to the cotnrary notwithstanding, JKR would have no exclusive 
right to this market.

CJ