That case and that book

[Carol]

Nora wrote: 
> <snip> 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.<snip>
> 
> 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.

Carol:
A link to those scholars would be helpful! :-)
 
Blog resumed:
> 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.

Carol responds:
But it *isn't* "merely an alphabetical arrangement of something [JKR
has] already created. That's what her side is *claiming*, true, but if
the print version resembles the online version, the only one I have
access to, that description is inaccurate. It isn't alphabetical, for
one thing, and the "rearrangement" within the various entries
paraphrases or summarizes material from various chapters and various
books so that the wording, except in quoted passages, does not
resemble JKR's.

Let me give an example. JKR actually wrote, "Harry threw his whole
weight behind the sword and drove it to the hilt into the roof of the
serpents mouth" (CoS Am. ed. 320). If I took those exact words and
used them without quotation marks and without attritution, implicitly
claiming them as my own in a fan guide entry on Basilisks or the Sword
of Gryffindor or Harry Potter or whatever, I would be guilty of both
plagiarism and copyright infringement. If, however, I quoted them
exactly, using ellipses for omissions and square brackets for
alterations, put them in quotation marks, and attributed them to their
source, I would not be guilty of plagiarism. (I might still violate
the Fair Use Doctrine if I used too many such quotations without
permission, but the sentence in itself would not be a violation as
long as the source was cited, etc.) By the same token, if I rephrased
the sentence completely and wrote, "Harry killed the Basilisk by
thrusting upward with the Sword of Gryffindor through the roof of the
snake's mouth," or, more simply, "Harry killed the Basilisk with the
sword of Gryffindor," (no quotation marks in my hypothetical entry
because I would be paraphrasing), I would not be plagiarizing or
infringing on copyright, though I would need to indicate that the
scene occurs in CoS, and it would be a courtesy to readers and to JKR
alike to cite the page or chapter number. I wrote my sentences without
consulting the Lexicon because I didn't want to be influenced by it
when I composed them. Here is the Lexcions' version; "Harry killed the
basilisk by thrusting a sword through the roof of its mouth": rather
like my first paraphrase but slightly less detailed. And the source,
CS 16ff. (meaning CoS chapter 16 and following chapters), has already
been cited. Neither plagiarism nor copyright infringement in that
sentence or the surrounding material.

That the Lexicon's Bestiary, like FB, follows an alphabetical
arrangement is incidental; the entire Lexicon is arranged by
categories and subcategoories, with alphabetical listings within the
subcategory--a much more convenient arrangement than having "Basilisk"
follow "Bagshot, Bathilda" (setting aside her corpse's possession by a
snake).

Blog: 
> 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.

Carol:
But, my dear blogger, you haven't read the Lexicon, have you? It *isn*
an alphabetical list. (As for the amount of work, also claimed by JKR,
I think we all agree that it's wholly irelevant.)

Blog: 
> 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. <snip>

Carol:
But research and scholarship are only representative examples of the
kinds of works protected by fair use. No one thought to mention fan
guides, but that doesn't mean that they aren't protected. A list of
examples is only that; it doesn't preclude other types of work that
didn't appear in the list from being included, any more than "fruits
such as peaches, pears, and apples" precludes apricots and oranges
from being classified as fruit.

However, setting aside the word "scholarly, " I agree that "fair use
requires that you not take more than necessary to create your analysis
or commentary"--or your encyclopedia entry. And I don't think that the
Lexicon *has*, in most cases (the Sorting Hat entry being a glaring
exception) taken more of JKR's words than necessary.

Blogger:

><snip> I suspect that 91%+ is far too much for the limited commentary
this provides."

Carol:
91-plus percent if the pie chart is accurate. But, as far as I can
tell from the entries I've examined, it isn't.

The blogger is taking JKR's lawyer's testimony as fact, not checking
to see whether it's accurate. He's acting exactly like the Ministry of
Magic assuming that Sirius Black is guilty or Severus Snape
(apparently) assuming that Harry Petrified Filch's cat. "Innocent
until proven guilty, Severus." And blogger. And JKR. *Examine the
evidence to see whether the charges are true. Don't accept accusations
as fact.* That's why we have a justice system--and a Fair Use Doctrine.

Blogger: 
> 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. 

Carol:
Not all of the entries have, or require, commentary. But all of them
provide the source of the material. "Well-researched citations"
doesn't, in fact, make a great deal of sense as a phrase, but the
quotations and paraphrases in the Lexicon *are* cited, usually with a
chapter number rather than a page number because the books exist in
two quite different editions, and a page reference to Scholastic is
quite useless to someone with a Bloomsbury edition of the same book.
The *individual entries* are "well-researched" and the source material
is cited. If the citations don't conform to, let's say, CMS or MLA
format, that's probably because it's not a scholarly work and the
intended readers are fellow fans who just want to know which chapter
the information or quotation came from. 

Blogger:
> As it is, I think it's simply derivative, and the law grants
copyright holders exclusive rights to derivative works.

Carol:
But that's the whole question, isn't it? and whether it's "derivative"
or "transformative" cannot be determined without a comparison of the
secondary work to the original, copyrighted it is allegedly copying.
Or is an accusation the same as a verdict?

Blogger: 
> 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.

Carol:
Of course, only the copyright holder can *aurthorize* any work. It's
just not clear whether an *unauthorized* reference work (other than a
concordance or a translation, both of which are clearly "derivative")
is protected by the Fair Use Doctrine. And whether it is or not
depends on how much of the original work it uses (with no allowable
percentage having been established) and whether it clearly violates
fair use by using quoted material without quotation marks. While the
majority of the Lexicon is probably protected by the Fair Use
Doctrine, portions such as the Sorting Hat entry which use substantial
 amounts of JKR's own words with little explanation, summary, or
commentary, are not.

Carol, wishing that people would stop taking the prosecution's
testimony at face value and realize that the burden of proof is on the
accuser, not the accused