the letter box project / copyrights, intellectual property, literary critici

[Carol]

Catlady wrote:
> THE WIND DONE GONE, as I understand it more a re-telling, from the
> point of view of Mammy's biological daughter, than a sequal. The
> Mitchell estate sued it for being an 'unauthorized sequel' but it won
> on the ground that it was actually a parody, and parody is specially
> stated to be 'fair use'. Without having read it, I gather that it is
> actually a commentary rather than a parody, and I kind of think that
> commentary is more of a contribution to ongoing thought than is
> parody, making it sad that commentary is not protected as fair use.
> 
Carol responds:

Commentary, fortunately, *is* protected by fair use, or literary
critics and reviewers would be out of business.

Here's a quote from a U.S. government website on the fair use doctrine
(which I think we would all do well to familiarize ourselves with,
whether we're editors, contributors to book discussion websites, or
would-be literary critics:

"[Section] 107. Limitations on exclusive rights: Fair use

"Notwithstanding the provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as *criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research,* is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair use the
factors to be considered shall include — 

"(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;

"(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market for or value of
the copyrighted work.

"The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors."

http://www.copyright.gov/title17/92chap1.html#107

Carol earlier:

> << What I would *not* do is to stifle discussion or interpretation
of my characters in any way. But literary criticism and fanfic are
opposite reactions to a literary work. One analyzes and interprets
what the author has written, the other strives to expand or recreate
the work. >>
> 
Catlady responded:
> I can imagine that some authors are more offended by some literary
criticism than by almost any fanfic. Literary criticism that analyzes
that a tale has 'fascist values' (I once read an article explaining
that It's A Wonderful Life is a fascist film) or sexual obsessions,
for example. Literary criticism that analyzes that an author has the
same plot in every story even though they pretend to be different.
> 
> If Margaret Mitchell were still alive, I imagine she would be more
offended by THE WIND DONE GONE as a commentary on her [alleged] racism
and Scarlett being an idiot than by it being an unauthorized sequel
that might possibly reduce the market for her authorized sequels. 
> 
Carol again:

Offended or not, an author can't deny literary critics the right to
comment on or analyze their works; criticism (in the sense of
critiquing a work, not necessarily "criticizing" in the snese of
finding fault though that's not prohibited) is protected by fair use. 
By literary critics, I mean professional writers who analyze literary
works for a living, interpreting the characters, symbols, setting,
plot, etc., to explore the meaning and significance of a work). For
example, a critic might analyze the use of classical mythology in the
HP books in relation to a particular theme (Harry's descent into the
underworld in various books, for example). Scholarly research for,
say, a dissertation, or even a middle-school student's research paper
(so long as it doesn't plagiarize) is protected, too.

I haven't read "the Wind Done Gone," so I have no idea whether it
violates copyright (assuming that "Gone with the Wind" is not yet in
the public domain) or plagiarizes the original work, nor whether it
qualifies as a parody and is therefore protected, but if it were a
straightforward literary analysis quoting portions of the original
novel to support its argument, it would be allowed.

I'll grant you that some literary critics are out-and-out kooks, and a
number of postmodern critics attempt to impose a political agenda,
such as Marxism or feminism, on a literary work, and judge it by
whether it succeeds or fails in depicting values that the critic
approves of or criticizing values that the critic disapproves of. I
don't know about professional critics, but I've certainly seen posters
on HPfGu taking a similar approach. (Anyone remember the flak over
Alice Longbottom being merely "the Auror Frank Longbottom's wife" in
GoF and the, erm, magical transformation of Alice into an Auror
herself in OoP?)

Regardless of the agenda or school of thought, even (IMO) idiotic
attacks on Mark Twain for "racism" in "Huckleberry Finn," literary
criticism is "fair use," which is probably why the book by Orson Scott
Card and another author presenting conflicting analyses of Snape was
permitted (not to mention that Borders Books was capitalizing on the
Great Snape Debate in its advertising campaign to publicize DH) while
the Lexicon, which is primarily a compendium of "facts" about the WW
rather than an analysis of the books, is not. (I do think that Steve's
lawyers will study the fair use doctrine and find an out, but I've
been wrong, oh, so wrong, before).

catlady: 
> Shakespeare took plots from Plutarch and from Girardus Cambrensis,
and IIRC others, and modern intellectual property laws would protect
us from having Shakespeare's play in our universe.
>
Carol:
Well, yes and no. Shakespeare, like Chaucer before him, did use a
variety of source materials rather than inventing his plots and
characters from scratch, but his treatment of them was highly original
and most of his materials were available to him in something like what
we today call the public domain. Plutarch was long dead, as was
Girardus, and even the sources for Shakespeare's history plays were in
no position to complain about his use of their source materials, Sir
Thomas More, for example, having died in 1535. Granted, a contemporary
of Shakespeare's, Robert Greene, supposedly complained that "there is
an Upstart Crow, beautified with our feathers, that with his Tygers
hart wrapt in a Players hyde . . . is in his owne conceit the onely
Shake-scene in a countrey." 

http://www.sourcetext.com/sourcebook/library/bowen/24purloined.htm

IOW, Greene accused Shakespeare of stealing lines from his plays, but
I'll leave that question to the Shakespeare experts.

Carol, for whom Shakespeare's treatment of historical figures is much
more troubling than, say, his adapting of the old Pyramus and Thisbe
story into "Romeo and Juliet"