That case and that book

[Carol]

Alla:
> 
> Well, try this case for example, where basically plaintiffs allege 
> breach of copyright by the defendants who produced movie supposedly 
> based on their screenplay.
> 
> Price v. Fox Entertainment Group, Inc.
> Not Reported in F.Supp.2d, 2007 WL 241389 (S.D.N.Y.)
> Court here  denied defendant's motion for summary judgment saying 
> that question of substantial similarity between two works must be 
> decided by the trier of fact, but what I find significant is that 
> judge does NOT does NOT examine dialog only, he examines  everything –
>  feel, theme characters, plot, sequence and setting.
> 
>  "C. Actionable Infringement
> After examining each work's "total concept and feel, theme, 
> characters, plot, sequence, pace, and setting," [FN79] I cannot find 
> as a matter of law that each and every similar element between the 
> two works is non-protectable. A jury could reasonably conclude 
> that " 'the ordinary observer, unless he set out to detect the 
> disparities, would be disposed to overlook them, and regard [the 
> works'] aesthetic appeal as the same." ' [FN80]
> FN79. Williams, 84 F.3d at 588.
> 
> FN80. Boisson, 273 F.3d at 272 (quoting Folio Impressions, 937 F.2d 
> at 765). <snip>

Carol responds:

But the problem with using this case to compare with JKR vs. RDR is
that a screenplay and a movie are the same type of work. They have the
same *purpose*, to entertain audiences using dialogue, characters,
plot, setting, and all the elements of a dramatic (or literary) work.

But the "transformative purpose" of the Lexicon is obviously *not* to
write a novel or entertain readers with characters, plots, settings,
themes, and dialogue taken from the HP books and claimed as an
original work. The purpose of the Lexicon is to provide information
about the HP books, which, of course, must be largely obtained *from*
the HP books, for the "transformative purpose" of informing readers
who are already fans of the HP books.

It is not stealing ideas from the HP books to compete with them, as
the case you've cited does.

For example, if I were to create a sarcastic, black-haired,
sallow-complexioned chemistry teacher and give him lines that might
have been spoken by a certain tart-tongued Potions master,
particularly if he was fond of putting students in detention or
deducting house points, JKR would have a legitimate case against me
because I would have stolen Severus Snape. But the Lexicon is using
information from the books to *inform* readers who presumably have
already read the books *about* Severus Snape (and many other topics).
If I want to be entertained by Severus Snape, I'm not going to read
the Lexicon (though I might consult it to help me remember where some
particularly delicious passage was).

With regard to a literary character, the more specifically he's
described, the more likely it is that the writer of a novel using a
similar character might be infringing on the original author's
copyright. But information or analysis of a literary character (or
element of the setting or artifact) with no claim to have originated
that character (no reader of the Lexicon is under the misconception
that Steve V. invented Snape--or Hogwarts or Blast-Ended Skrewts, for
that matter) is protected by the Fair Use Doctrine.

Using a character clearly copied from another author and claiming him
as your own creation is not.

BTW, and this has nothing to do with Alla's post, has anyone read the
Orson Scott Card and Ken Jennings responses to the case? If not, the
links are up at Leaky (which is to be commended for posting them since
the Leaky editors are all on JKR's side and the Card and Jennings
responses favor JKR, Card's response being harsh and highly critical
of JKR and Jennings's being calmer and more objective).

Carol, finding it hard to drop out of this conversation, probably
because it's so important to all of us