[HPFGU-OTChatter] Re: Copyright infringement question

[P. Alexis Nguyen]

Tonks:
>  I am not an attorney. I am therefor not giving legal advise. I think
>  that the only place that you can get away with using "the backdrop,
>  some of the characters, etc." is in fanfiction that is not for
>  profit. You see this all over the internet. If you are planning to
>  write a book of fiction for profit, you have to create your own
>  world and characters. You can not use hers without permission. And
>  you will never get permission, I am sure.

Ali:
Mostly true. Fanfiction, published or not, is technically infringement
since the law doesn't take profits into account in such ways. Authors
such as Anne Rice have successfully stopped fanfiction of their works
from being published on the Internet (i.e. done sans profit). Many
authors, however, having seen the backlash that was created via Rice's
actions, have chosen to endorse fanfics, probably somewhat under the
advise of their PR folks. Sites such as fanfiction.net are alive
simply due to the fact that the original copyright holders have not
chosen to assert their rights (except folks like Rice); the second all
those copyright holders assert themselves, ff.net shall die a quick
death (not likely, though).

On the other hand, many of the HP readers/fanfic writers will likely
outlive JKR (not to be morose or anything), so if they're willing to
wait, it's probably easier to hold out for that before getting her
permission to public fanfics - I can't recall the basis upon which the
Gone With the Wind sequel was allowed to be published, but needless to
say, Mitchell's estate lost the case.



Tonks:
>  On the other hand, if you are writing a non-fiction book about her
>  work, that is another story. John Granger and others have done that.
>  Steve at Lexicon is in trouble because his work does not discuss her
>  books, but is more of a reference book with little if any original
>  material of his own.

Oh dear. I should ignore this, but I wanted to say just one thing. It
is unfair to make judgments of who is in what trouble without knowing
all the facts, and that's where the Rowling v. Lexicon case is at now.
Some reference works fall under the realm of derivative works, and
until someone can actually produce a book, it is rather unclear
whether the published Lexicon would be a reference the HP series or
would be purely derivative in the sense of referring to the book and
discussing it. Clearly, the judge has hesitations about doing nothing
since he granted an injunction, but in reality, had the judge
definitively thought this was a clear cut case of copyright
infringement, the case would have gone straight to trial (which would
still entail an injunction, of course). We'll see; that injunction
only lasts until February. (The judge is probably going to demand a
draft of something at some point, but that's just a guess based on the
fact that judges don't like to make high profile decisions without
absolutely everything available to them.) I do wonder if the judge
will use the recent Silverstein case as reference or if he will ignore
it.

I should clarify that, like Tonks, I'm not a lawyer, just someone who
recently graduated [US] business school. :)

~Ali