That case and that book

[Carol]

Nora wrote:

> http://cip.law.ucla.edu/cases/case_williamsbroadus.html
> 
> where you again get "direct quotation or close paraphrase" treated
as equivalent issues.
>
Carol responds:

Exactly. I've never said otherwise. In fact, I've given examples of
"close paraphrase" that might as well be JKR's own words (and would be
considered plagiarism in scholarly work, but that's irrelevant in a
copyright case), for example "Spiders flee from it." JKR's lawyer gave
at least one example of close paraphrase, the description of Madam
Marchbanks as looking like her face was draped in cobwebs. "Draped in
cobwebs" is JKR's phrase and should have been put in quotation marks
even though the rest of the sentence is acceptably paraphrased.

There's a difference between "*close* paraphrase and the combination
of *acceptable* paraphrase and incorporated quotations illustrated in
the comparison charts. And it does make a difference that the sources
were cited; just look at JKR's lawyers saying that they aren't and
then leaving off the citations in the charts, forcing those who want
to check their honesty to look at the Lexicon itself, where the
citations do appear.

"*Close* paraphrase" is a rewording that's so close to the original
wording that it's actually an altered quotation. Either the wording
should be changed as completely as possible without altering the
meaning (legitimate paraphrase) or the phrases that echo the author's
 original wording should be put in quotation marks and incorporated
into the legitimate paraphrase or the whole thing should be put in
quotation marks, with alterations indicated with square brackets or
ellipses as appropriate. (You know all this already, having been a
graduate student, but other posters might not.)

JKR is charging the Lexicon with plagiarism (which he hasn't committed
except in a few easily corrected cases because he's followed the
procedure described in the previous paragraph) and with copying and
pasting her words, which, again, he hasn't done and which the
comparison chart actually *proves* he hasn't don in most cases.

Not that plagiarism, which is an ethical violation, is the same as
copyright infringement, but they overlap, and Steve V. has for the
most part been careful to *avoid* plagiarizing JKR. His rewording (for
the most part) changes the style from flamboyant and colorful and
recognizably JKR's to the informative, impersonal style of a reference
work.

Paraphrase that does not reflect the style or use the wording of the
original work is *not* protected by copyright law. And even close
paraphrase, properly attributed, and quotations, properly attributed,
fall under Fair Use--if the quantity and quality of the quotations
(some quoted material, such as song lyrics within a larger work, being
more important or "substantial" than others since they qualify as
works within a work) are justified by the requirements of the
secondary work.

He should not have picked up her words without acknowledgment as he
has done in a few places. He should not have used a complete or nearly
complete song by the Sorting Hat in the revised entry (which is,
nevertheless, a substantial improvement over the original, which
consisted almost entirely of songs by the Sorting Hat). Song lyrics
and poems *do* require permission, even in an unauthorized work.

But legitimate paraphrase and summary are perfectly acceptable and do
not require permission under any circumstances. And even close
paraphrase and quotation (properly acknowledged as the author's own
words or expression) are allowable under Fair Use if the amount of
material that could be considered the original author's words or
expression is justified by the type of secondary work, a reference
work by its very nature requiring more of that sort of material than a
critical analysis.

Works that are entirely "derivative" and not at all "transformative"
fall under copyright protection and must be authorized by the
copyright holder. That applies to indexes. translations, abridgements,
and probably concordances. Audio recordings and movie adaptations must
also be authorized. But the Lexicon is not an adaptation of the HP
works, and it incorporates material from other sources, including the
public domain, and includes occasional commentary. It is not the kind
of work traditionally within the author's copyright protection, nor is
it clearly the type of work generally protected by fair use. That's
why we're having this discussion.

At any rate, "*close*" paraphrase falls under the category of
"original expression" and the amount that can be used is limited
(though no limit has been or can be specified because each secondary
work has different requirements). The Lexicon can't say that Madam
Marchbanks's skin looked like it was draped in cobwebs without putting
"draped in cobwebs" in quotation marks and citing the source. "Draped
with cobwebs" is a close paraphrase, so close to the original that it
borders on plagiarism, and would require an introduction which
indicates that the description is JKR's own: "Madam Marchbanks is
described as looking like her skin was draped with cobwebs." Better to
use the original wording in quotation marks with the source cited to
be safe. But *legitimate* paraphrase, which does not duplicate or echo
the original wording, is not protected by copyright. The Lexicon can
say that Madam Marchbanks was an ancient witch with deeply wrinkled
skin without having to attribute the paraphrase. 

In short, "close paraphrase" is, with regard to scholarship, a form of
plagiarism. With regard to copyright law, it's a form of "original
expression" indistinguishable from direct quotation. But paraphrase
that alters the wording without altering the meaning is another matter
altogether.

Carol, agreeing to disagree with regard to "ideas"