That case and that book

[nrenka]

--- In HPFGU-OTChatter at yahoogroups.com, "Carol" <justcarol67 at ...> wrote:


<snips throughout>
 
> Carol:
> 
> Thanks for the link. But, as Lee has already argued, a book of
> Seinfeld trivia, which depends *entirely* on the TV show Seinfeld 
> for its existence, with the only new material being wrong answers, 
> is completely different from an encyclopedia or Lexicon both in its
> nature and its usefulness. 

> But the Lexicon supplements and to some degree clarifies the HP 
> books (and certainly provides a handy reference when
> you can't remember the chapter in which a particular incident
> occurs!). 

Well, that's the complaint of JKR and her team--that the Lexicon does
not really supplement and/or clarify the books.  It certainly doesn't
follow any form of academic procedure in how it cites its references,
either to the books themselves or to what scanty etymologies and
commentary there is in the book.  (Remember, the book is not the
website, it's much trimmed down, and a lot of the stuff that would be
obvious fair use is gone.)

> the Lexicon can't substitute for a reading of the HP books. It would
> only confuse, or perhaps arouse the curiosity of, a nonreader of the
> HP books, who would have only the vaguest idea of the conflicts and
> incidents and relationships in the books.)

The Lexicon doesn't substitute for the pleasure of reading the books,
but you could definitely use it to crib the plot and enough about the
characters to fake your way through some knowledge of the work.

> The pie chart is about words, as I understand it. JKR is claiming 
> that the "work" is entirely hers because the Lexicon is mostly her 
> own words or very close and unacknowledged paraphrases.
> 
> The four factors (listed elsewhere) say nothing about "fictional
> facts," nor is such a concept mentioned in the fair use doctrine.

That was the point of the Castle Rock (Seinfeld) court decision--that
these fictional facts are indeed protected expression, and thus are
what's at stake in terms of how much can be used and still fall under
fair use.  This is what hits so hard in the third factor, on this
case--he's taken so much of the original, which per Castle Rock,
includes the details/facts, not only the exact wording.

<snip>

(Quote from the MLA):

> "Like verbatim copying, close paraphrasing of protected expression 
> can constitute copyright infringement if the borrowing does not meet 
> the criteria for fair use. *The ideas contained in a work*, though, 
> in contrast to the original expression, *may be freely used without 
> risk of copyright infringement*" (21.1.13, p. 44).

I read that totally differently, in this case: I take it to mean that
I can, for instance, use Pierre Bourdieu's sociological theories about
taste and the positioning of authors, if properly cited, without
violating his copyright.  That's a different animal than taking a work
of fiction and rearranging the text slightly to create a giant list of
all the details involved in and unique to that work of fiction.

Someone who actually IS a lawyer (and involved in fandom) weighs in here:

http://praetorianguard.livejournal.com/279321.html#cutid1

One relevant bit, with some snips made from the original:

"To my mind, this is purely Castle Rock. Castle Rock is the famous
Seinfeld Aptitude Test case, where the defendant created a trivia book
from fictional facts about Seinfeld. The court said, oh no you didn't,
found them infringing for taking someone else's fictional facts and
making a derivative work out of it, and held them liable.

The defendant's argument in the Lexicon case is going to be to try to
distinguish Castle Rock in two ways: (i) Castle Rock dealt with an
entertainment book, not a purportedly educational book; and (ii) the
Seinfeld Aptitude Test didn't transform anything, it didn't add value,
it was merely derivative, and the Lexicon adds scholarly analysis.

I don't think that'll fly, though certainly some legal scholars do. 
For me, the Lexicon adds so little to a recitation of JKR's fictional
facts that I think the Southern District will find copyright
infringement. It's merely an alphabetical arrangement of something
she's already created with very little added. To me, that's
derivative, not transformative, and I don't think it'll be enough for
the Lexicon to be fair use.

Is there value in arranging someone's fictional world into an
alphabetical list? Absolutely. Does that mean it's fair use? Not at
all. Did SVA and his team put a lot of work into this? Certainly. Does
that mean it's fair use? Not at all.

Moreover, even if you assume that this is scholarly, fair use requires
that you not take more than necessary to create your analysis or
commentary. As an, ahem, facetious example, I could quote the entirety
of book seven and then add "Wow, I think she's awesome, but what's up
with that silly epilogue?" Commentary? Sure. Fair use? No way in hell.
I took far too much with respect to what I needed to support my
commentary. I suspect that 91%+ is far too much for the limited
commentary this provides."

The derivative vs. transformational debate is at the heart of this as
well, and that's where I come down on the side of JKR.  IF this
lexicon were to add commentary on every item, provide some
well-researched citations about the sources of material, it could
count as transformative, enriching the experience.  As it is, I think
it's simply derivative, and the law grants copyright holders exclusive
rights to derivative works.

I don't doubt that a reference work strictly based on the books could
be useful, but I do think that only a copyright holder has the right
to authorize that, much like how concordances of new translations or
editions of works are prepared by the authors/editors of those works,
or others who hold permissions.