That case and that book

[Carol]

Alla wrote:
> 
> I was just laughing when reading lawyer for RDR hilariously asking 
himself what the heck is this or something like that when reading 
Lexicon's  quotation to HBP 10 when cross-examining JKR about 
Voldemort. Yeah, I think citations are not up to the level they 
should be in the index.

Carol responds:

He probably didn't know what "PA7" and similar citations meant, but
any reader of the HP books would know that it means PoA chapter 7.
that the Lexicon uses a citation system suited to its readers, in
contrast to Chcago Manual of Style footnotes or Modern Language
Association parenthetical citation has no bearing on whether it falls
under Fair Use or not. Nor does the quality of the writing, which JKR
alternately criticized and claimed as her own.

Alla:
> 
> After reading first day testimonies I changed my mind, partially as
to how strong the argument of Lexicon book hurting the market for JKR
if this ever allowed to be published. I do not think it is silly
anymore, especially in regards to FB and Qudditch through Ages. 
> Plaintiffs claim that entries had been copied verbatim, basically
all of them. <snip>

Carol responds:

Of course, that claim would relate only to Quidditch-related entries
and the Bestiary section of the Lexicon, not to the work as a whole. I
hate Quidditch, so let's look at the bestiary instead. (Someone else
is welcome to look up, say, "Quaffle," and see whether there' any
copying. I do want to make one small point regarding QTTA, however,
which is that it's arranged in chapters (chronologically, IIRC), so
there are not "entries" to copy as could happen rather too easily with
regard to the Bestiary section of the Lexicon and FB.

So *do* the Bestiary's entries copy FB outright? Let's examine one and
see (and the purposes of this post require substantial amounts of
quotation!).

Let's compare the entries for "Banshee." The Bestiary says:

"banshee creature from Muggle legends or mythology
"Rating Unknown (PA7, GF21, FB)
"A Dark creature with the appearance of a woman with floor-length
black hair and a skeletal, green-tinged face. Its screams will kill.
Seamus Finnigan is particularly afraid of banshees (PA7). The Bandon
Banshee was supposedly defeated by Gilderoy Lockhart (CS6) but was
actually defeated by a witch with a hairy chin (see CS16). The singer
Celestina Warbeck performs with a backing group of banshees (DP)."

There is, however, no comparable entry in FB, probably because a
Banshee is classified as a spirit, not a beast. Consequently, the
entry combines general knowledge with references taken from several
sources. (I confess that I don't know what "DP" means, but I expect
that I could easily find out by consulting the Lexicon's sources page.
As for the "rating unknown" reference with three citations, I confess
that tha't puzzling. I suspect that the cited sources discuss the
MoM's rating system.

Let's try an actual beast instead. Since "Basilisk" comes next (and
I've been on a Basilisk binge lately at HPfGu), I'll try that (with my
own commentary in square brackets):

Here's the Lexicon entry, minus a copyrighted drawing from CoS that
probably won't appear in the printed book:

"Basilisk (the King of Serpents) more info in Fantastic Beasts - click
here to order [Please note that he's actually asking people to order
FB! Probably not possible in the print version. Also, the Basilisk as
King of Serpents is common knowledge, meaning that it can be looked up
in any reference work, and does not require a citation.]

"creature from Muggle legends or mythology [general knowledge]

"XXXXX (CS16 ff., FB) [sources cited; expects readers to be familiar
with JKR's works to know the meaning of the X's]

"A wizard-bred Dark creature of enormous power, this extremely
poisonous giant serpent (up to 50 feet in length) is brilliant green
in color with long thin saber-like fangs and bulbous yellow eyes (see
more below). A basilisk can live for at least 900 years given an
adequate food supply, and as it can eat most vertebrates (including
humans), this is not difficult to achieve. The male can be
distinguished from the female by the scarlet plume on its head, but
basilisks are usually magically rather than normally bred.
[Paraphrased from FB; JKR's wording is not picked up. The source,
however, should be cited unless this information can be found in other
reference works on mythological creatures.]

"Basilisk-breeding has been outlawed since medieval times and in the
present day falls under the Ban on Experimental Breeding, but this law
has rarely been broken even by Dark wizards, since only a Parselmouth
can control a basilisk. [Paraphrased from the entry in FB, with the
exception of the reference to the Ban on Experimental breeding, which
is discussed in the introduction and, IMO, does not really apply since
the Basilisk is not a new species. Errors are beside the point, however.]

    "Of the many fearsome beasts and monsters that roam our land,
there is none more curious or more deadly than the Basilisk, known
also as the King of Serpents. This snake, which may reach gigantic
size and live many hundreds of years, is born from a chicken's egg,
hatched beneath a toad. Its methods of killing are most wondrous, for
aside from its deadly and venomous fangs, the Basilisk has a murderous
stare, and all who are fixed with the beam of its eye shall suffer
instant death. Spiders flee before the Basilisk, for it is their
mortal enemy, and the Basilisk flees only from the crowing of the
rooster, which is fatal to it." (CS16) [properly formatted quote with
citation; however, the citation should indicate that CoS is quoting
the imaginary library book from which Hermione tore a page.]

[drawing of shed basilisk skin]

"The phoenix seems immune to the basilisk's deadly gaze (CS16 ff.) {An
inference drawn from the book; counts as commentary]

"When unleashed by the Heir of Slytherin using Parseltongue, the
basilisk that lived in the Chamber of Secrets searched the castle for
its prey, Muggle-born students, which it apparently could identify by
smelling their blood ("I smell blood..." the creature cried as it
wandered the pipes). When its eyes were pecked out by Fawkes, it
attacked Harry using its keen sense of smell. Harry killed the
basilisk by thrusting a sword through the roof of its mouth. Harry's
arm was pierced by one of the basilisk's fangs, the poison of which
nearly killed him. [reasonably accurate summary of action in CoS 16,
cited above. The creature hissed rather than cried "I smell blood"
(among other things), a minor error that should be corrected, but
hardly a matter for the courts. A chapter reference (chap. 8) should
have been provided for the brief quotation, but that's not plagiarism
or copyright violation, just sloppy writing.]

"Apart from its specific magical powers and long lifespan, many of the
characteristics of the basilisk follow naturally from its being a
serpent (see). [A cross reference to another entry in the Bestiary]
Like more mundane serpents, the basilisk sheds its skin at intervals,
and its varied diet is typical of the larger snakes, which tend to
pursue larger and larger prey according to their own size and
capabilities. [common knowledge; no citation required] It's quite
possible that had Harry both retained his wand and been more
experienced in Defence Against the Dark Arts, he might have lost his
battle against the basilisk in attempting to use Stunning Spells; [an
inference or speculation; counts as commentary] although not
explicitly stated, the basilisk's skin probably has the same armor
characteristics as dragon skin, leaving its eyes and the inside of its
mouth as its only vulnerable points. [more speculation; counts as
commentary]

Now the corresponding section of FB (which, unfortunately, I have to
type, not cut and paste, so any typos are mine, as are any bracketed
comments):

"BASILISK (also known as the King of Serpents)

"M.O.M. Classification XXXXX

"The first recorded basilisk was bred by Herpo the Foul, a Greek Dark
wizard and Parselmouth, who discovered after much experimentation that
a chicken egg hatched beneath a toad would produce a gigantic serpent
possessed of extraordinarily dangerous powers. [The Bestiary doesn't
mention herpo and quotes another source for the chicken egg hatched
under a toad.]

"The Basilisk is a brilliant green serpent that may reach up to twenty
feet length. The male has a scarlet plume upon its head. It has
exceptionally venomous fangs but its most dangerous means of attack is
the gaze of its large yellow eyes. Anyone looking directly into these
will suffer instant death. [This information is used in the Bestiary
entry but properly paraphrased.]

"If the food source is sufficient (the Basilisk will eat all mammals
and birds and most reptiles). The serpent may attain a very great age.
Herpo the Foul's Basilisk is believed to have lived for close on nine
hundred years. [This information is summarized and generalized in the
Lexicon entry; Herpo is not mentioned.] 

"The creation of Basilisks has been illegal since medieval times,
although the practice is easily concealed by simply removing the
chicken egg from beneath the toad when the Department for the
Regulation and Control of Magical Creatures comes to call. However,
since Basilisks are uncontrollable except by Parselmouths, they are as
dangerous to most Dark wizards as to anybody else, and there have been
no recorded sightings of Basilisks for at least four hundred years."
[The information on illegality and on Parselmouths is paraphrased and
rearranged. The rest of the paragraph is not used.]

[scrawled comment in Harry's handwriting: "that's what you think"]

As I hope you can see, any information taken from FB and used in the
Lexicon's entry on Basilisks has been carefully paraphrased and
rearranged. No echo of JKR's (or should I say Newt Scamander's)
distinctive style remains. The entry is informative but not
particularly entertaining, unlike FB. Nor has her wording been picked
up. The source of any FB-based information not available from outside
sources should be cited; the problem is that JKR has no monopoly on
Basilisks, which are as much common property as Santa Claus, so its
very difficult to tell whether anything other than Herpo the foul, the
Department for Regulation and Control of magical Creatures, and
possibly the red plume on the male Basilisk comes from JKR's own
imagination (and the plume information comes from the CoS library
book, not FB, and is almost correctly cited--I don't expect anyone but
a literature scholar to know how to cite a source quoted within
another source). The Bestiary entry contains supplemental information
and some speculation and inferences. The information on Herpo the Foul
has been eliminated and removed to the section on wizards; I haven't
checked, but I assume that it's properly paraphrased, as here.The only
problem, easily remedied, is that the paraphrased information is not
credited to FB.

One more pair of entries, if anyone is still with me. Let's do a short
entry on a creature that JKR invented, the Doxy. Here's the Lexicon's
entry:

"Doxy (Biting Fairy) more info in Fantastic Beasts - click here to
order [another FB ad, free advertising for the work JKR claims is
being unfairly competed with]
 
"XXX - Northern Europe and America

"The Doxy is a small fairy-like creature that is covered with black
hair. They have sharp venomous teeth (FB). Doxies are pests. They can
infest houses, taking up residence in the draperies. Removing them
requires a good supply of Doxycide. It's a good idea to have an
antidote for Doxy venom on hand as well (OP6). [The description is
condensed and paraphrased from FB; the supplemental information is
paraphrased and greatly condensed from OoP.]

The FB entry, by comparison, says:

"DOXY (sometimes known as Biting Fairy)

"M.O.M. Classification: XXX

"The Doxy is often mistaken for a fairy (see page 16) though it is
quite a separate species. Like the fairy, it has a minute human form,
though in the Doxy's case this is covered in thick black hair and has
an extra pair of arms and legs. The Doxy's wings are thick, curved and
shiny, much like a beetle's. Doxies are found throughout Europe and
North America, preferring cold climates. They lay up to five hundred
eggs at a time and bury them. The eggs hatch in two to three weeks.

"Doxies have double rows of sharp, venomous teeth. An antidote should
be taken if bitten."

Clearly, the Bestiary entry is adequately paraphrased. It's not
plagiarism or copyright violation to pick up phrases like "sharp,
venomous teeth," with or without a comma. The interesting detail about
eggs is omitted, but the bit about antidotes and "taking up residence
in the draperies" is nicely handled. No copyright violation there. No
analysis or inference is necessary; this is an informative entry about
an imaginary inhabitant of JKR's world; no one will be under the
illusion that Steve V. invented Doxies.

Anyway, I thought I'd attempt to show that the accusation about the
Bestiary section of the Lexicon, and the Lexicon in general, uses
JKR's words without quotation marks is just absurd. The paraphrases in
the Basilisk entry should be credited. Those in the Doxy entry are fine.

Carol, who would not have put a Banshee in a Bestiary