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Harry Potter author fights web-based "rip-off"
Fan website becomes book and begets law suit
Syzygy




msg:3626780
 9:27 pm on Apr 14, 2008 (gmt 0)

JK Rowling has told a New York court that plans to publish an unofficial Harry Potter encyclopaedia amounted to "wholesale theft".

The Harry Potter Lexicon is based on material from an internet fan site of the same name.

In court papers filed before the trial, the author said she was "deeply troubled" by plans to turn the website into a book.

[her lawers argue that] ...RDR Books had copied Ms Rowling's "life work" and put them in a book bearing "the name of somebody else".

"If... [the publisher's] ...position is accepted, it will undoubtedly have a significant, negative impact on the freedoms enjoyed by genuine fans on the internet," she said.

Source: BBC News [news.bbc.co.uk]

Interesting case.The author claims infringement of intellectual property, yet the book is based on the content of a fan site.

Also, to all intents and purposes an encyclopedia is a book of facts. Facts, as we all know, are not subject to copyright. Surely then, any facts about the characters and storylines cannot subject to copyright. True?

And what about the content of the fan site? Derivative work? It's certainly not plagiarism. And if the stuff has been online and the author has not objected, could this be construed as her being accepting of its existence.

Indeed, it appears she has no objections to the online content, but does mind to it being collated and presented in book form.

So what's the difference between the content being on a website or in a book?

Syzygy

 

BeeDeeDubbleU




msg:3626809
 9:51 pm on Apr 14, 2008 (gmt 0)

So what's the difference between the content being on a website or in a book?

Don't ask me but I must say that I think she has every right to be pissed off about this.

D_Blackwell




msg:3626894
 11:58 pm on Apr 14, 2008 (gmt 0)

So what's the difference between the content being on a website or in a book?

I agree that she, or at least her legal reps ought to be concerned. But I also like the question posed. What is the difference between a fan site (the presentation of facts and/or the free discussion of opinions) and a book that does exactly the same thing?

Rowling said that 'he was sloppy and lazy', but it sounds more like he was smart and slick, and is well positioned to produce a quality and profitable project. Is 'fan material' okay when it sucks, but a 'rip off' when it is good?

FattyB




msg:3627712
 9:49 pm on Apr 15, 2008 (gmt 0)

Would this not fall under derivative works? I think it would...though perhaps they have undermined their case a bit by letting all the fan sites exist and exploit the material.

Demaestro




msg:3627717
 10:04 pm on Apr 15, 2008 (gmt 0)

Waste of her energy.

All those people who put time into this project are the same people who spent $20-$30 for each book, the same people who spent $10-$20 for each movie.

These are the same people who ran a website that promoted the books and the movies and DVDs with bonus features, they explored the world she created and added their own creative input. Tell anyone of them you haven't read the books and they would buy you the first one. They are the product of the massive love people have for her stories and she is taking legal action against them.

How many unofficial scrabble dictionaries are there? How many Klingon dictionaries? There is a whole language institute for speaking Star Trek languages.

1 Fan spending breakdown:
7 books x $25 = $175
5 theater movies x $15 = $75
5 DVD movies x $20 = $100

So that is $350 per fan on that site not counting whatever merchandise they bought... lunch boxes..action figures... posters....

Harry Potter 2007 Gross profit for the year amounted to GBP 59.17 million.... if I were her I would write the foreword and thank her fans for loving the world she created so much they keep it going. She could work out a deal to retain her copyrights and allow this if she wanted.

[edited by: Demaestro at 10:09 pm (utc) on April 15, 2008]

purplecape




msg:3627827
 2:32 am on Apr 16, 2008 (gmt 0)

This case is not as simple as it looks on the surface.

First of all, there's a big difference between a free web site and a book based on it that ISN'T free. No one profited from the fan site. Someone--a particular someone, NOT Harry Potter's fans generally, and a particular publisher--stand to profit considerably from this reference book. So seeing JK's suit as an attack on her fans is simply wrong. Rowling isn't suing her fans,she's suing the author and publisher of this book. I would bet that MANY of the HP fans are looking forward to HER encyclopedia. Also, JK Rowling has said repeatedly that she does not intend to make any money from her intended encyclopedia. She intends to donate the proceeds to charity. Has the author of the reference book made a similar statement? So don't focus on the money and get all envious of Rowling. Look at the case.

As far as the case goes, I don't see the "facts can't be copyrighted" argument as being as strong here as it would be with, say, a telephone directory. The Harry Potter books are fantasy, so they do not contain ANY facts that can be compiled in any way other than by going back to the books. Rowling created all the "facts" in them.

Also, from what I've read of her testimony the case is built at least in part on the reference book either copying or closely paraphrasing passages from the HP books.

This is not a slam dunk for JK Rowling, IMO, but it's not a slam dunk for the defense, either. It will be interesting to see how it plays out.

kwasher




msg:3627903
 4:41 am on Apr 16, 2008 (gmt 0)

She should hire a couple of Borg lawyers and assimilate both the website and book.

Rosalind




msg:3628096
 12:08 pm on Apr 16, 2008 (gmt 0)

First of all, there's a big difference between a free web site and a book based on it that ISN'T free

I don't think there is, except in the way Rowling and her lawyers perceive this. It's either infringement or it isn't, and who profits from it doesn't affect that.

I'll be watching this case with interest as well.

digitalghost




msg:3628121
 1:10 pm on Apr 16, 2008 (gmt 0)

>>So what's the difference between the content being on a website or in a book?

I was wondering the same thing. Then I checked out the site, and found a link to a quote (apparently from Rowling) about the site she's so upset about now.

This is such a great site that I have been known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing). A website for the dangerously obsessive; my natural home.

Steve Vander Ark links to her quote on her official site by the way.

So, she didn't seem to mind the site content, as long as it's not turned into a book?

purplecape




msg:3628226
 2:35 pm on Apr 16, 2008 (gmt 0)

Rosalind, there are a couple of differences.

For one thing, what would be considered "fair use" varies depending on the use to which material is put. If someone creates a fan site based on a book and makes no money from it, then that's one kind of use. If they create a book and charge money for it, that's different, and fair use guidelines generally restrict money-making uses more than uses that DON'T make money. (Having said that, I don't know the details of the defense's arguments, and to what extent they are based on "fair use"--but I'd be very surprised if fair use wasn't at least part of the defense)

For another, the web site does not have a direct impact on Rowling's ability to create her own encyclopedia. An encyclopedia does--it's more direct competition, and potentially puts her in the position, if she does an encyclopedia, of competing with a work based on her work!

I am not a lawyer, but my understanding is that copyright law does take into account if someone is making money or not from a use of a copyrighted work, and so I'd be very surprised if the court doesn't find the site and the book to be materially different uses of Rowling's material, even if she ends up losing.

Demaestro




msg:3628232
 2:47 pm on Apr 16, 2008 (gmt 0)

purple you are right, but the thing is she could play nice with them if she wanted. She doesn't have to compete she can profit from this too without doing any work at all. She admits how good the content is.

I see the legal side of it, but as a person I am missing where she is coming from. It seems bullish.

If the website creators indeed did not profit from this so far, and I am not sure that is the case, but there is no way they have been paid fairly for the time they must have put in to all this... what is wrong with them turning a little money... obviously the market will bear the cost without affecting future sales... Harry is just too popular.

purplecape




msg:3628245
 2:59 pm on Apr 16, 2008 (gmt 0)

D, I know, I think Rowling has a very strong feeling that the world of HP is HER world, and that may be driving the suit. Interestingly, the judge had a few things to say after the second day:

After the second day of testimony in the Harry Potter trial, Judge Robert Patterson, Jr. urged the parties to settle, expressing concern that the case is "more lawyer-driven than it is client-driven."

Patterson said, "The fair-use people are on one side, and a large company is on the other side...The parties ought to see if there's not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair-use doctrine is not clear." He added, "Maybe it's too late. Maybe we've gone too far down the road. But a settlement is better than a lawsuit."

D_Blackwell




msg:3628247
 3:00 pm on Apr 16, 2008 (gmt 0)

Harry is just too popular.

Which is why he has to be protected -$$ -. Maybe they'll wind up making a deal. Could be that an 'okay' situation became very not okay once the quality hit a certain level and the potential for a quality profitable product became viable. The lawyers won't stand for that. They'll want a clear line drawn over what's allowed. It's the money - and the next guy...

Syzygy




msg:3628258
 3:12 pm on Apr 16, 2008 (gmt 0)

From the International Herald Tribune [iht.com]:

Rowling says that the lexicon is a "sloppy" case of copyright infringement and plagiarism. But the lexicon's Michigan publisher, RDR Books, says the book is an example of "fair use," a legal concept that grants limited use of copyrighted material in reviews, news stories, scholarly works, and parodies.

"Fair Use" as in "It's fair for me to take your material and use it for my own means..."

To pique the interest further, on Rowling's side is Warner Brothers Entertainment, whilst backing up Steve Vander Ark is Stanford Law School's Fair Use Project.

A veritable clash of titans!

Syzygy

Demaestro




msg:3628676
 10:51 pm on Apr 16, 2008 (gmt 0)

"Fair Use" as in "It's fair for me to take your material and use it for my own means..."

To be fair.... they haven't taken anything. They have all their own unique material which is based on her material.. Even if she "wins" this... the material they have doesn't become hers... they just can't publish it (even though it is published on the web)... but she doesn't get to publsh it either.

What I want to know is if they stop the book what happens to the website?

[edited by: Demaestro at 10:52 pm (utc) on April 16, 2008]

LifeinAsia




msg:3628685
 11:11 pm on Apr 16, 2008 (gmt 0)

My understanding (which may be completely wrong) is that when authorrs want to create books using characters from other "worlds" (e.g., Star Trek, Middle Earth, etc.), they must first seek permission from the original author (or whoever controls the rights, as I believe is the case in the Tolkein estate), who then has final approval before publication, then gets a revenue share or licensing fee.

It seems that anyone who tries to do that without prior approval is just setting themselves up for a nasty lawsuit. (I seem to remember something many years back about some Star Trek fans who tried to publish stories outside of the "official" Star Trek fanzine channels.)

Shubz




msg:3628828
 4:38 am on Apr 17, 2008 (gmt 0)

It's just about the money, honey! Books sell. Websites will never be able to earn the amount of moolah that book sales can.

It is but natural for JK to be worried about the prospective sales figures that such an encyclopedia can rake in. As long as it was free, on the web, for everyone to read, she was ok with it. But, a book can be sold to millions.

Any author would be upset to lose out on such stuff... esp when the whole story was her brainchild, and now someone else is gonna walk away with the money.

An extra bit of money never harms... does it?

BeeDeeDubbleU




msg:3628871
 7:08 am on Apr 17, 2008 (gmt 0)

An extra bit of money never harms... does it?

No, not when she intends to donate the income to charity.

vincevincevince




msg:3628877
 7:28 am on Apr 17, 2008 (gmt 0)

I am guessing that the Harry Potter Encyclopedia was on her publisher's list of future money spinners. Personally I believe that the publication should be allowed if it is as portrayed - a original work describing the content of the Harry Potter books.

Seems to me that this has been played entirely the wrong way - Rowling should have teamed up with them, endorsed it personally, written a forward etc. That way she could still get her cut, negotiate some form of copyright agreement to protect worrying in the content, the sales would be much improved, and nobody would suffer other than the publisher who's already made an absolute fortune from her series.

callivert




msg:3628893
 8:02 am on Apr 17, 2008 (gmt 0)

It sounds like it could be categorised as a scholarly work to me. A dictionary is not fiction. It is not even a creative endeavor. In fact, any creativity involved would negate the point. It is a reference work- which you might call "scholarly". I guess that's up to the court.

Similar criticisms could be made of a biography... it too involves taking your "life's work", describing it and reworking it, and publishing under "the name of somebody else". Biographies of authors frequently go in depth into an author's work, describing it in detail.

purplecape




msg:3629561
 9:58 pm on Apr 17, 2008 (gmt 0)

calliver, RDR IS calling it a scholarly work in their defense. That's NOT the same as a dictionary, by the way. A dictionary is a lot of definitions in alphabetical order.

However, it's questionable that the "lexicon" is really a scholarly work. It has no commentary or analysis. Just a bunch of things taken from the HP books and put in alphabetical order. Which weakens a fair use defense--and also explains why Rowling would not go for vince's suggestion. She has said several times that she doesn't like the quality of the book--she wants to do something better, and has been planning to do so for years. Her plan, not her publisher's. So an endorsement is pretty much out of the question.

callivert




msg:3629687
 1:11 am on Apr 18, 2008 (gmt 0)

purplecape, I didn't intend to pre-empt the court. But I can see that there's a case to be made for it being a scholarly work. That covers more than analysis. It can also be simply organising information. I think if I released a shakespeare lexicon, or guide to Shakespeare's characters, that would be considered "scholarly."
The fact that she doesn't like the quality of the work, or that she wants to do something like this herself... these seem like distractions from the central question. Does this guy have the right to do it? If he does, then these things don't really matter.

purplecape




msg:3630005
 3:01 pm on Apr 18, 2008 (gmt 0)

Right, I agree that what she wants to do or thinks of the work isn't material to the case--I made those points in response to someone's suggestion that putting her name on the work, in return for a payment, would have been a good solution. Since she doesn't like the book, that just isn't going to happen.

Regarding your point, I think there is a difference between a compiled work and one that is more transformative--Shakespeare might not be a good example since he's long dead and just about anything done on Shakespeare could be called "scholarly." The copyright issue, and the border between commercial and scholarly, is with current books. So how about a Star Wars example? You won't find Star Wars reference-type books that aren't officially licensed, I understand. There are a few unofficial "trivia" books. BUT if someone writes a book about, say, the mythic structures of the Star Wars movies, then that IS a scholarly work and so allowed under fair use (unless of course the author does something ridiculous like reproduce the entire screenplay of a movie and write only a couple of pages of commentary....).

Well, it's been interesting, and we'll see what happens.

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