[HPFGU-OTChatter] Copyright infringement question

[P. Alexis Nguyen]

Ali:
I'm no lawyer, so one who is will be better suited for these
questions. However, having recently graduated with a business degree,
I do recall some similar issues arising in class - novels weren't
really involved, though, since my degree is in health care management.
Take that as you will.


Carol:
> Can an author create an imaginary, unnamed mayor of New York living at
> a specific time (pos-9/11) who's involved in a scandalous love affair
> without defaming recent or current New York mayors? (I'm thinking of
> Rudy Giuliani as I don't know the current mayor's name.) Again, the
> writer seems to me to be risking a lawsuit for defamation of character
> or libel. At least, the unnamed character should be a councilman (or
> whatever), someone less identifiable than the mayor, or so it seems to me.

Anyone can file a suit against someone else; it's really a matter of
whether the case is admissible in court. If you write a book
referencing a certain time, place & person, then, even without
mentioning a name, you could potentially be sued (in this case,
meaning go to court). However, two things work in your favour: one,
public figures do not generally bring suits against authors unless it
is something grossly wrong (i.e. would not be printed in publications
like the NY Times); two, if all the information presented could be
defended by saying that information was culled from reliable sources
of information (NY Times, WS Journal, biographies, etc) and then
incorporated into a fictionalized persona, it's potentially a good and
winnable defense - a lawyer working in this field would better be able
to cite precedence.


Carol:
> What about casual, neutral references to specific products that could
> be read as endorsements of those products? What about references to
> "the latest Tom Cruise movie"? Is a celebrity's name public property,
> or is it protected in the same way that, say, song lyrics are?

You can always go to court without obtaining permission to use a
copyright/trademark, but the simple truth is that no one will ever sue
for free [good] publicity.  As for the flippant "see the latest Tom
Cruise movie" remark, that doesn't infringe any rights that I can see.
Tom Cruise (as is JKR, etc) is a public persona, and references to
him, especially neutral ones, doesn't infringe any laws currently
being enforced...at least none that I've never heard about in my
classes. Now, if you were to make a power drink called Cruise Juice
(or something equally ridiculous) and tried to mass market it, that's
an entirely different issue - that infringes on trademark rights, etc,
but references to the person is different.


Carol:
> And here's a hypothetical question, since it hasn't happened yet in
> the books I edit. Could one character say to another, "Who do you
> think you are, Severus Snape?" or "He's as creepy as Mad-Eye Moody"?

This one, I must first say, is totally an opinion. However, again, I
think this isn't so much a matter of right to sue as a matter of
whether it's logical. It goes to the point of whether the HP
characters are integrated enough into popular culture that the name
references something other than just the characters. In other words,
like in referencing someone as Sherlock Holmes, you're referring to
characteristics of Holmes such his detective skills, and this is a
common enough reference that your average judge (though there are
special ones, like the ones that require women to go to court in
skirts & hose even in the dead of winter) won't rule against it just
because it's a matter of setting a bad precedence. However, at this
point, I would not say that any of the HP characters have yet obtain
the same Holmesian level of pop culture status.

Anyway, those are my two cents. I'm sorry that I only referenced the
very specific examples, but that's about all I can deal with in my
limited knowledge of the law (especially since most of that knowledge
is contained within the health care system and I'm mostly
extrapolating from drug copyright/patent info).

~Ali, who now works as an editor for training manuals so can't figure
out what she went to business school for