Back to the Fair Use Doctrine (Was: Thoughts from a Different Perspective)

[Carol]

Lee Kaiwen earlier:
> 
> > 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

Lee again: 
> 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. <snip>
> 
> 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. <snip>

Carol responds:

I agree. If we look at copyright law, the section immediately before
the section outlining the Fair Use Doctrine, we can find the rights
actually of the copyright holder (bear in mind that the doctrine, as I
keep saying, was formulated in 1976):

"[Section] 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:

"(1) to reproduce the copyrighted work in copies or phonorecords;

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

"(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental,
lease, or lending;

"(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works, to
perform the copyrighted work publicly;

"(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly; and

"(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission."

Carol again:

What this section means is not that the copyright holder is the only
one who can, for example, make an audiotape ("phonorecord" in our
outdated copyright law), but he or she is the only person who can
authorize an audio copy of the work. (The two HP audiobooks exactly
reproduce the HP texts and are, of necessity, authorized.) Similarly,
the copyright holder is the only one who can authorize a "derivative
work," such as a movie based on the book.

Obviously, item 6 is inapplicable in JKR vs. RDR because it doesn't
relate to literary works. Items 1, 3, 4, and 5 are also inapplicable
because no copy or performance is involved. (I don't mean quoted words
but, say, a reprinting of the entire work, such as a pirated book.)
The only exclusive right of the copyright holder that the Lexicon can
be accused of violating, given that it's not an unauthorized verbatim
copy or a movie or an audio performance or anything of that sort, is
item 2, being a "derivative work."

But what constitutes a "derivative work" is not specified, which takes
us back to Section 107, the Fair Use Doctrine. Not to be redundant or
anything, but here is the Fair Use Doctrine in its entirety:

"[Section] 107. Limitations on exclusive rights: Fair use

"Notwithstanding the provisions of sections 106 and 106A [which
relates to the visual arts, so I haven't quoted it], 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." 

So I don't know where the judge in the Seinfeld case got the idea that
trivia books or games are usually developed or licensed by the
copyright holder, but I'd sure be wary of trademark infringenment and
the WB if I were so foolish as to attempt to market a trivia or
videogame for HP. The producers of the films are also, obviously
authorized by JKR. They're the ones who own all the trademarks!

Fortunately, however, WB has backed off, and the case (the testimony
may be over but a decision is still pending) hinges on copyright. And
nowhere in copyright law itself can we find a definition of
"derivative work." That's the reason for the "gray area"--all the
judge has to rely on besides the sections I've quoted is legal
precedent and testimony and, possibly, his own examination of the
materials, that is, the HP books themselves and the manuscript of the
print Lexicon.

And, again, "the fair use of a copyrighted work <snip> for purposes
such as criticism, comment, news reporting, teaching <snip>,
scholarship, or research, is not an infringement of copyright."

IOW, the copying of portions of a published work for "purposes such
as" criticism, comment, scholarship, and research is acceptable as
long as the secondary work falls within the four guidelines. And even
if the work isn't exactly scholarship, it does involve research and it
contains some commentary. After all, the list of purposes is not
intended as restrictive, only to illustrate the kind of uses that
would be acceptable for the particular type of copyrighted work (is it
visual art, music, or literature? Is it fact or fiction?) and,
although that's not specified, the nature of the secondary work as well.

Anyway, to answer your question, I seriously doubt that any lawyer
could plausibly argue that lexicons and encyclopedias are "generally
developed" by their authors. As for "generally licensed," I would say
that they're often authorized, but given the plethora of unauthorized
encyclopedias and fan guides, I don't think we can safely say that
they generally or usually are.

Which takes us back to the fair use doctrine, which was formulated
specifically to *protect* *unauthorized* use of quoted or copied
material for the purpose of research, criticism, education, book
reviews, etc. Without it, scientific researchers couldn't quote the
results of other researchers' experiments. Teachers couldn't legally
copy a short story from an anthology and distribute it to their
students to study, even if a child had lost her textbook and couldn't
afford a new one. Book reviewers and literary critics would be out of
a job.

Carol, still convinced that RDR, despite shoddy tactics, has the
stronger case and worried about the consequences for similar works in
the future