[HPFGU-OTChatter] Re: That case and that book

[Lee Kaiwen]

As you've already linked to the Castle Rock case, I won't bother.

> this is where Castle Rock is so very,
> very relevant, because it says that the details of a piece of
> fictional expression are protected. The Seinfeld Trivia book broke
> the fictional facts of that world up--not quoting them directly, but
> rendering them into a question and answer format--and was still ruled
> to be violating. 

(First, a note. I don't find the words "details of a piece of fictional 
expression" in the text of the decision.

As I read the Castle Rock decision, the court seems to have given far 
more weight to the transformational argument than it did to its point 
about protection of fictional facts. Its "fictional facts" determination 
is, first, made in response to a defense claim and, second, underpins 
only the court's reasoning viz. the qualitative analysis. From the text 
of the decision:

"We have stated that 'substantial similarity' requires that the copying 
[be] quantitatively and qualitatively sufficient to support the legal 
conclusion that infringement (actionable copying) has occurred. The 
qualitative component concerns the copying of expression, rather than 
ideas[, facts, works in the public domain, or any other non-protectable 
elements] . . . . The quantitative component generally concerns the 
amount of the copyrighted work that is copied...."

The court then finds the trivia book failing both a qualitative and 
quantitative analysis.

Beyond the qualitative analysis, however, the fictional facts 
determination does not appear to have played much of a role in the 
court's reasoning. In my reading it seems so very clear that it was the 
transformative issue which played the major role. I'll quote here from 
the Wikipedia discussion, because it's more succinct (not to mention 
readable :-) )and directly to my point, but I believe nonetheless 
accurately describes the court's reasoning.

On the "fictional facts" issue:

"When analyzing the quality of the copied material, the court rejected 
the defendant's position that Seinfeld trivia constituted facts and was 
therefore not covered by copyright protection. It reasoned that the 
'facts' portrayed in Seinfeld originated in the fictitious expression by 
the writers of the show."

The court rejects the transformative argument in the Seinfeld case on 
the grounds that the *purposes* were pretty much the same:

"The court rejected defendant's arguments holding that any 
transformative purpose posed by the book was slight or non-existent. It 
concluded that the purpose of the book was to entertain the Seinfeld 
audience with a book about Seinfeld, much the same purpose as the 
television show."

It was this lack of sufficient transformative qualities, not the point 
about the protectable status of "fictional facts", that underlay the 
court's reasoning on the other tests:

"The court looked to the second statutory factor.... [T]he court noted 
that transformative use can lessen the importance of the nature of the 
copyrighted work, but since The SAT held slight or non-existent 
transformative purpose, the fictional nature of Seinfeld disfavored a 
finding a fair use....

"The third factor ... was whether ... copying went beyond what was 
necessary. Here again, the transformative use affected the court's 
analysis.... [B]ecause the court found little transformative use for the 
purposes of critique, this weighed against defendants."

On the fourth test:

"The court held that the differences in form between The SAT and 
Seinfeld and the lack of transformative purpose made the book a 
derivative work in a derivative market."

On each of the second, third and fourth tests the court ruled against 
the defendants based on its finding of a of transformative purpose. The 
notation viz. the copyrightable status of "fictional facts" seems to be 
largely peripheral, and does not appear to have played a major role in 
the court's reasoning.

Finally, a question: I would be very curious to know whether the 
"fictional facts" determination has been specifically cited as precedent 
in any other court decisions. My own feeling (though IANAL, so what do I 
know) is that its peripheral role in the court's reasoning makes it a 
poor candidate for a precedent. If it *has* been cited elsewhere, that'd 
be very interesting.

CJ