Smart Bitches Trashy Books | All of the romance, none of the bullshit.

It’s unlikely to have any ‘far-reaching’ implications whatsoever with respect to fan matters, since Vander Ark’s book is being published for profit. Most fan efforts are borderline fair use in the US (and are firmly fair use in Commonwealth countries) because they are not for profit and non-commercial.

Although people who despise fan fiction and other fan matters will have a field day claiming that it will, I’m sure.

Rowling has said- often- that if and when she publishes her encyclopedia, it will be for charity.  The galling thing about Van Der Ark is he first asked for a job working on JKR’s encyclopedia and was turned down.  He also asked if he could write one and was told no.  He did it anyway- and he’s using information that others compiled for the site, but they’re not profiting and plans to use a quote from JKR regarding his site to imply that she authorized the encyclopedia.  JKR is a supporter of fanfiction- although she’s admitted being scared of some of it- and I don’t think that will change.

Part of the problem is also that Van Der Ark is not publishing many (or any) of the essays available on the site. The vast majority of those essays were written by other fans, none of whom have reported him even asking them if he can republish their essays in his book.

Essentially, he’s publishing the encyclopedia portions of his site, which is a much uglier legal area than publishing critical commentary (such as essays) would be. Publishing it as entirely information collected from her books is bad ju-ju.

Fandom_Wank has collected a lot of information on the subject as part of their wank reporting. It’s an interesting read, though you need to start at the bottom if you want to start in chronological order.

What I wonder about are other such ‘guides’ to tv shows and other series books (Like the Chronicles of Narnia) which have similar books written about them. Why haven’t the same authors/creators balked at these?

I think Ms. Rowling is being oddly grabby-grabby. She has made BUCKETS of money off of her series. Why would she care if some small publisher somewhere writes a lexicon for fans of her books? Why is that such a big deal? Even if she is planning on writing her own similar type book…would it really impact her sales at all?  I seriously doubt it.

This reminds me of her odd comments not too long ago about Dumbledore being gay. Why did she have to say that?  I *never* suspected that while reading and didn’t really care about sexual orientations in a children’s book. But Ms. Rowling proved that she likes to be in the spotlight and continue to draw attention to her books….when she really doesn’t need to.

Those books will sell well for a good long time.

I just find it sad and odd, really.

The issue is more about the fact that, when the Lexicon was being given away for free on the internet, she could let it pass, but when he was trying to make money from her copyrighted material without adding anything to it (something like 2040 entries out of about 2600, something like that, are copied verbatim from her books.)

I’m a long-time member of fandom, and I love fandom and want to see it recognised as a legitimate transformative community - but even I say that this is plagiarism and commercialism on the part of RDR and Steve Van Der Ark. JKR has every right to protect her material.

Ah, I was not aware of the details. Thanks.

Personally, I think JKR has every right to sue. She’s always supported the fans, and HP Lexicon. But this seems like people are trying to take advantage of her. I’m not saying that either side has behaved perfectly, but the sheer amount of entitlement from the HP Lexicon people pisses me off.

I have nothing against fans showing their support through fanfic/art/whatever. (Especially fanfic. :p Sorry authors.) But that’s because most of the time, the fans are doing it because they love their book/tv show/movie, and not to turn a profit. IMO, Van Der Ark, jumped a line here.

And as to Dumbledore: I think JKR was asked about his background during a Q&A session and why he didn’t have a love interest in the books, and JKR answered that in her mind he was gay. I don’t really see a problem with that. It’s her world, so she obviously she creates the canon.

BTW, I’m actually not that big of a fan of the HP series. I’m probably like the only person left who still hasn’t read the last book yet. *runs and hides in shame* But this kerfuffle caught my attention when I saw it on fandom_wank.

I’m a long-time member of fandom, and I love fandom and want to see it recognised as a legitimate transformative community - but even I say that this is plagiarism and commercialism on the part of RDR and Steve Van Der Ark. JKR has every right to protect her material.

Hear hear!

No one loves (good) HP fanfic more than I do, but there’s a line, and this crosses it.

In response to Charlene’s comment, my understanding is that most fanworks, including fanfiction and vids are, in fact, copyright infringement. There’s no provision in US or Canadian copyright law that I’m aware of that permits use of copyrighted materials in not-for-profit settings. The NFP tag is one of the ways that fanfic and other fanworks skirt the bounds of legality mostly by saying to copyright holders “look, we aren’t making money so there’s no point in suing us” - but that hasn’t stopped copyright holders from issuing C&D letters and making other legal threats against fansites in the past, nor will it in the future.

That is why I believe Ms. Rowling is correct that if RDR does win this case, the end result will be far more rigorous enforcement of copyright on fan activities, particularly online as the basis of RDR’s claim seems to be that no one objected to the existence of the website, so they have a right to publish a book version.

“She has made BUCKETS of money off of her series. Why would she care if some small publisher somewhere writes a lexicon for fans of her books?”

How much money she’s made is irrelevant. Who determines the line between “Hasn’t made enough money, therefore has moral right to care” and “Has more money than God. Should quit complaining and go buy a small country”?

I have seen a lot of emoting about this case but a lot of seems to be based on a certain amount of obfuscation of the issues.  The fact that a lot of people whose opinions I respect are lining up behind RDR books makes this a case I will be following with great interest. 

I have never read any of the Harry Potter books and I have never visited the web site and I have never seen a Harry Potter movie or an interview with Rowling so I have no dog in this hunt.

This topic makes me want to rant, but instead I’ll just offer links to a couple of discussions of the other side of the argument:

http://www.nytimes.com/2008/02/09/business/09nocera.html

http://www.slate.com/id/2181776

Several faculty from Stanford’s Fair Use Project have agreed to represent the defense:
http://cyberlaw.stanford.edu/blog/anthony-falzone

My {sarcasm alert} favorite {/sarcasm alert} Rowling lawsuit was the one she filed against an Indian festival for their decision to build a life-sized model of Hogwarts:  http://www.sajaforum.org/2007/10/religion-jk-row.html

Ah, good times.

Also, here’s a link to the brief filed on behalf of RDR as well as Rowling’s:
http://cyberlaw.stanford.edu/node/5679

Read all of the legal fillings, handily available at Justia, first.
http://news.justia.com/cases/featured/new-york/nysdce/1:2007cv09667/315790/

While we’re at it NYTimes have got it wrong:
http://blogs.law.harvard.edu/infolaw/2008/02/09/nyt-fouls-up-fair-use/

Actually, the implications will be farther reaching in the unlikely event RDR win. I don’t know any intellectual property holder would wouldn’t move to preempt fan activity (much of which falls into the infringing category, but it largely ignored by most authors out of good will alone) in order to protect their copyrights. I think people forget that this case is about RDR’s willingness to flout copyright law while making a quick dollar after someone else (JKR) has done all the heavy lifting, and not JKR’s purported greed.

Commercialism is just one aspect that the court will look at in determining whether it is “fair use.”  In fact, the courts have said in the past that to rule out everything that has a commercial aspect as “fair use” would defang the provision. 

I understand that there are fears that a ruling in favor of RDR would tighten the restrictions that authors put on the use of their work on the internet, but I think that a favorable ruling for RDR is a win for fan fiction writers.

Also, there is no law that definitely says fan fiction is violative of the copyright infringement. Every case that discusses fair use starts off with the policy that each fair use case must be decided on the facts unique to that case because each case requires a weighing of balance.

Courts are largely in favor (depending on the jurisdiction) of furthering educational examination of work and the more scholarly a work is, the more likely it is fair use.  Although that is, again, just one factor in weighing fair use.

The deal with the book form of the Lexicon is that it’s being published without any critical content.  Simply listing and describing things, often by quoting or paraphrasing JKR’s words (which everyone here will remember from the Cassie Edwards scandal is still plagiarism), is not creative or critical.

The book version of Lexicon offers no citations for the HP books, as far as I recall.  This week’s filings by WB et al. also indicated that on the rare occasion that Vander Ark offered some sort of outside information, those sources (like etymology dictionaries) weren’t cited either, and frequently his analysis was just plain wrong.

I have Paul Ford’s Companion to Narnia somewhere around here.  It’s a wonderful work of analysis – also arranged in an encyclopedia format, but offering so much more.  Ford delves into etymology and mythology and theology and a whole lot of other -ologies in analyzing the books, bringing a considerable amount of scholarship to the table.  (His entry on Aslan, for example, is not a summary of the series, as Vander Ark’s entry on Harry Potter summarizes the series.)  That’s what makes a work transformative rather than derivative.  The Lexicon collates and alphabetizes.  Alphabetizing, as this week’s filings stated, is not transformative.

Did SVA work hard on the Lexicon?  Sure, I suppose, though I would note that it’s been stated that 40% of the material on the website, which would include a good bit in the book version, was collected/written by people other than SVA.  But his working hard on it, or even doing something that’s good for the fans, doesn’t give him the right to publish it when the copyright holder tells him no.  If you read some of his online statements that have been presented as evidence, he knew that all along.

And if you read the rest of his emails and online/convention statements, you get a picture of a guy who, as my grandma would say, got too big for his britches.

Meanwhile, RDR Books has acted in extraordinarily bad faith through all this process.  A lot of this could have been avoided if they’d just cooperated early on instead of sticking their fingers in their ears.

Let’s see if I can end the italics.  :)

Thanks, lilywhite.  That’ll teach me to use HTML while ranting.  ;)

Dana,

I’m probably like the only person left who still hasn’t read the last book yet.

Not the only one, I haven’t read Deathly Hallows either, and had to be dragged into reading books 1-6 pretty much flailing. ;)

I’ve been following the Lexicon case very closely from the beginning, and I am firmly on JKR’s side, in large part b/c Vanderark & Co. have refused to be cooperative, and have never made a single statement that is consistent with what they’ve claimed in other places. I second the recommendation of the individual who mentioned Fandom Wank. They’ve done excellent work there collecting the various voices on the subject, and it is JKR’s right, and no one else’s, to publish a definitive encylcopedia of her world. The Lexicon is literally NOTHING but a collection of facts—many of them inaccurate and incomplete—about the HP books. Now, personally, if I were JKR, I might’ve let it slide. But Vanderark is a big enough “name” in fandom, and the Lexicon important enough, that this kind of publication could open the gates to other for-profit fan works, and that strikes me as extremely problematic.

I’m not a lawyer, obviously, so I have no idea about the legal intricacies of the whole deal, but my fannish heart prays that RDR books loses, and loses big. Fan culture as it exists now may depend on that.

Ahhh you have discovered the law suit rocking my fandom at last. I’ve been a member of the Potter fandom for about three years. I worked at the Leaky Cauldron, the biggest news site and a site that is connected to the Lex through a group called the Floo network which combines a Quotes site, The Lexicon and the famous Leaky Cauldron news site, forum, galleries, podcast, interviews etc.

The fallout from this suit has already been massive. It’s driven the community in half. Those supporting Jo who I will admit is viewed as somewhat of a God in the community and those supporting Steve. Steve has been a very active and well known member of the community. He featured heavily on PotterCast, has presented panels at different conventions and also appeared on the Special Features disk of the Order of the Phoenix DVD on the movie. Our fandom has a fairly amicable relationship with Warner Bros. and Rowling herself. I think as far as WB is concerned it’s stemmed because they realized they could use the sites, and they have.

Steve’s book is, in some ways, undoubtedly plagiarism. However to understand the problem, you need to know a little more about how many freaking mediums the fandom has. There is fanfic, fanvids, fanart, forum discussions, chat, role play, podcasts, and one form gaining popularity rapidly is Wizard Rock with bands like Harry and the Potter’s and The Remus Lupins. Yup, it’s a crazy world. There has also been a rapid rise in popularity in fan written books. Mugglenet.com’s What Will Happen in Harry Potter 7? Guide was incredibly popular before the release of Deathly Hallows, Melissa Anelli, webmistress of the Leaky Cauldron is releasing her guide to the fandom later this year and Steve Vaander-Ark, known affectionately (once upon a time) in our fandom as Lexicon Steve was jumping on the band wagon.

The difference is that with Steve it’s an encyclopedia. Mugglenet was scheduled to release an encyclopedia too. Both Steve and the Mugglenerds were issued with Cease and Desist letters from Rowling. One stopped the other didn’t. Rowling has said for years and reaffirmed after DH that she would, at some point, be releasing her own encyclopedia for the books, that’s worth noting. Also worth noting, is Vaander-Ark’s behavior after DH was released at the fan convention Prophecy.
‘It’s over. She’s not the boss anymore’ or something like that was what Vaander-Ark cried to the fans. He had been unhappy with the last book. But undermining her copyright? I don’t think that was what he meant.

Rowling has been very tolerant with the use of her work on the internet, when your fan base is so huge what real choice do you have? However, since DH she has been becoming more controlling. Did we want her to control every single damn loose thread? She’s killing the character and the story by doing so. It’s not related to the case but she should bloody well let it be and let it stand on its own feet!
She’s deluding herself if she thinks Steve is the first or last to use her books for financial gain. The Potter craze has been a total cash hole for many in the fandom. Not Steve Vaander-Ark. This librarian is utterly ruined. There have been horrible things said about it and I think it’s likely that he’s going to be driven to bankruptcy by the fallout of this case.

Sigh. I haven’t done this very well. It’s only a tiny part of the case. It’s just been a pile of shit for everyone involved and for the community as a whole. Total division and loads of fights have ensued. The Leaky Lounge has a thread of people talking about it non stop and with more detail than I am able- so check that out here if you’re interested- http://www.leakylounge.com/Discussion-WB-JKR-vs-RD-t59932.html#entry1551571
It’s just a sad situation for everyone. And it’s going to get even worse before it’s sorted.

Sorry for being so boring!

M

It’s a pretty simple thing really—you can’t make money off someone else’s world.  The world belongs to Rowling, and she’s said before she’ll probably publish an encyclopedia.  As much as I love and have used the Lexicon, she’s right on this one.  It’s almost like trying to publish fan-fiction.  In very bad taste.

I can think of several compendiums and encyclopedias that have been published to accompany the study of works under copyright.

The difference being those books were either:
a) written with the permission of the copyright holder,
b) written on books already in the public domain, or
c) included enough original research and scholarship that they were transformative, and thus their references to the original work were allowed under fair use.

Mr. Van der Ark’s proposed Lexicon is none of these things. He intends to use Ms. Rowling’s exact or barely-altered words and make a profit at it.

If he has worked hard to assemble the Lexicon, so what? I don’t think bank robbers who work hard to tunnel into the vault deserve to keep the money.

If Ms. Rowling is rich, so what? Those are her creations. The fact that she’s not a ferret researcher doesn’t mean she deserves to have her words stolen.

Did we want her to control every single damn loose thread?

You mean like Anne Rice currently does? Ms. Rowling allows fanfiction, fanart etc. to exist even though they’re illegal. She’s pretty damned lenient about this—and you’re complaining?

She’s killing the character and the story by doing so.

No. She’s letting it live.

If Mr. Van der Ark wins, ALL fandoms die, because ALL writers will have to forbid fandom activities that violates their copyright (such as fanfiction and fanart) or they will lose all control of their copyright.

I’ll be interested to see what happens with this. I really hope we authors won’t have to go to such an extent as to deny fan fic.

I don’t really see how providing information when asked by a fan (such as with Dumbledore’s love life) is being controlling. A lot of fans want to know every exact detail that happened with the characters while others don’t. Trying to indulge the fans that do isn’t being controlling.

I think it’s an awful mistake to try to publish an encyclopedia (especially if it’s inaccurate and incomplete) instead of solid fan essays. Thank god for principles like copyright law, because the personalities in this situation are so big and dramatic that they make it really hard to focus on the practical bottom lines of what’s going on.

I’m curious.  What’s the difference between Cassie Edwards writing about ferrets and fan fiction published for profit?

I have read tons of these, Witch World encyclopedias and Darkover lexicons and Klingon dictionaries. They are not bestsellers by any means.

The ideas for these things came out of the same place as Critiques and Reviews that were once more frequently published so there is precedence for them.

These are for the most part fan based books and sure, I have no problem with Rowling’s suit. I think that if he does use transcribed text from the books without proper attribution then he is screwed.

But I also do not think she should get to shut him down because she is thinking of doing one herself.

I have heard of even television Episode Guides being done without permission (I believe Farscape had one for a while.) and that is when the author had best not have directly used any of the source material or pictures.

I actually don’t write for the Harry Potter fandom. So it wouldn’t affect me if the judge were to completely lose his mind and JKR were to lose the suit. . .

. . . but I do write fanfiction and RP characters from other Warner Brothers movies, and Warner Brothers is involved in the suit too. So I can fully anticipate the minute they lose the suit, they’re going to call out the lawyers in force to protect the rest of their intellectual property, and I and my favorite sites are going to be slapped with a C&D.

I won’t be especially happy with RDR books or Steve Vander Ark if that happens.

Does everyone think that fan communities can continue to write fan fiction, etc. because the authors and publishers let you out of the goodness of their hearts? I get the sense that they’ve led fans to believe that.

I’m curious.  What’s the difference between Cassie Edwards writing about ferrets and fan fiction published for profit?

Besides the fact that fan fiction, by its very nature, has overt attribution, there’s this:  http://supct.law.cornell.edu/supct/html/92-1292.ZS.html

Ultimately, the proposed lexicon encyclopedia is probably a derivative work.  Being sold for profit cuts against any fair use argument. 

Assuming the lexicon wins, you’ll probably see authors, publishing houses, studios, etc. will clamp down on fan-everything. 

The Lexicon is arguing in part that because JKR let them have the website, she can’t stop them from publishing the book.  The easy answer there is to shut down all the websites, if you’re a content creator/owner. Certainly, if the Lexicon wins, it’ll vindicate all the copyright hard asses, who for years warned authors etc. not to encourage or approve of fan content in any way, lest it be used against them later (as the lexicon is now trying to do.)  Even pure fan works that are made for enjoyment, not profit, will be targeted (the lexicon started out that way too.) 

All in all, it’s probably for the best if JKR and Warner win.  They’ll know that they can allow fan works to flourish, without at the same time building up the competition to their own bottom lines. They won’t have to worry that allowing fans to play in their sandbox will come back to bite them in the ass later.

Does everyone think that fan communities can continue to write fan fiction, etc. because the authors and publishers let you out of the goodness of their hearts? I get the sense that they’ve led fans to believe that.

You can write fanfiction. No one is going to check your hard drive for it. Anne Rice will not sniff you out and administer a keyboard-enema for the crime.

You just can’t put fanfiction on the internet if the author will immediately have a hissy fit and slap you with a cease and desist order for doing so.

Although fanfiction has existed, and would continue to exist, without the internet, fandoms could not be the enormous and popular communities they are without their members being able to easily promote and share their pr0n fanart and fanfiction with each other.

In order for fandom to survive, fanfic writers need the copyright holder’s blessing. Or at least their blind eye. And we can’t continue to have their blessing/blind eye if some twit interprets that benevolence to be permission to copy, reprint and sell the author’s words in order to pay for his plane fare to England.

Robin, the legal case you cited involves a parody.  Fair Use decisions have generally allowed the use of copyrighted work in a parody that is created specifically to ridicule the work.  Is that the intent of fan fiction, to ridicule the original work?

But I’m not making a legal argument here, just asking an ethical/philosophical question.  There was a great outcry and gasps of moral outrage when Edwards was discovered to have copied some paragraphs of description about ferrets.  She was castigated fiercely for plagiarism and stealing someone else’s work.  It was considered a Bad Thing in no uncertain terms.

But I’m not seeing the same fierce attitude toward fan fic, which in general seems to me to be at least as deep and perhaps a more far-reaching psychological “theft” of an author’s creative work.  Instead of sitting down and working from scratch, making the effort to develop their own characters and worlds—an effort which takes months and years for most authors—fan fiction writers grab someone else’s entire and specific concept (not just a general idea like “magic school,” but a very specific complex of characters, setting and story) and put it to their own use.  They don’t do the work to create their own world and characters, they take someone else’s.

So that’s what I’m asking.  Why is that so different from Cassie Edwards?  Why is taking a paragraph about a ferret, or even a page of dialogue, so worthy of scorn and ridicule, but fan fiction is supposed to be a nice compliment to the author of the original work?

Is it merely the money?  Is it not plagiarism if there’s no money involved?  If it’s done openly and attributed?

Just what IS the ethical difference?

M"However, since DH she has been becoming more controlling. Did we want her to control every single damn loose thread? She’s killing the character and the story by doing so. It’s not related to the case but she should bloody well let it be and let it stand on its own feet!”

OK, I don’t see how answering fan questions is controlling.  It’s how *she* saw things, for fans who wanted her vision.  Also, she’s hardly brought up anything except kids’ names since the suit started (jkr.com, the “room of requirements”, “Weasley family tree”).  Since DH came out, there’s been updates to her site about the Elder Wand, the India suit…couple other meaningless things.  Goodness, hissy much?

“She’s deluding herself if she thinks Steve is the first or last to use her books for financial gain. The Potter craze has been a total cash hole for many in the fandom. Not Steve Vaander-Ark. This librarian is utterly ruined. There have been horrible things said about it and I think it’s likely that he’s going to be driven to bankruptcy by the fallout of this case.”

Yup.  Smart people, who have unique thoughts, have written books tying HP into history, mythology, religion, et al…  They DARE to have original thought, and simply use HP as a starting point, yeah?  They *gasp* adhere to Fair Use!

Steve. Doesn’t. 

I’m a huge fan of the HPL online.  I seriously check it daily, as I beta read fan fiction, and it’s easier to access than looking up facts in the books sometimes.  This FREE SITE love, however, doesn’t extend to “I have to pay for it book”.  That Jo once praised the FREE SITE doesn’t mean she is OK with a need-to-pay-for-it book. And quashing the charity wank, RDR says that the Lexicon book will allow POOR people to access the Lex knowledge - Um, Hi!  The web-Lex is over 1000 pages, and updated all the time.  The BOOK is just over 400 pages, horrible writing where it’s original, paraphrasing when it’s not, and $25 for something that will never be updated again, and isn’t (as of the time of the suit) being translated into any 3rd world country language (thinking kids in Africa here). 

I seriously question the sanity of anyone on the side of RDR/SVA, if they’ve reviewed all the facts in this case. 

Meg

Fan fiction doesn’t copy the author’s story and call it their own, but uses it or the characters, as a springboard for another story. And not for profit. Much different, to my mind, than what Edwards did over many years and with many sources.

But this suit seems to involve someone who IS taking the author’s words, without her permission, and trying to sell it for profit. I’d sue, too.

I don’t mind fan fiction (understand those authors who do), but when I find my work on the internet—for profit or not—copied and claimed by someone else, I shut it down.

Just commenting to say that I’m so happy that the readers on SBTB are showing a level-headed sanity I haven’t seen since this whole thing started.  There are a lot of people in and out of the fandom who are supporting RDR, solely because “She’s just a greedy controlling bitch and deserves to have her intellectual property stolen.”  It’s great to see that there are some people who are willing to look at the facts instead of just jumping on the JKR Hate wagon.

Rock on, Smart Bitches.  *salutes*

I’ll second that, Tara.

Laura,

What’s mainly at stake is the money and the precedent. If JKR didn’t fight this, what would stop somebody from taking her work, rearranging the chapters and slapping on a price tag and calling it a reference tool?

I consider this worst than Edwards. Edwards, at least, had her stolen words couched among a lot of original words. If those stolen words were removed, the book would still basically exist without much difference. If all the stolen words were removed from the Lexicon, there wouldn’t be much of a book left if any at all. And yeah, I consider Vander Ark as stealing her words, RDR is his fence, and anyone who buys the book will be purchasing ‘hot’ goods.

I’m not saying I condone Edwards. Just in comparison, I think Vander Ark’s crime is worse, though the court will decide whehter this is a crime. I really can’t see how they won’t.

~There was a great outcry and gasps of moral outrage when Edwards was discovered to have copied some paragraphs of description about ferrets~

I’d like to point out that it was hardly a single instance involving the poor ferrets, but a pattern of copying, over years, and many sources.

I just hate to see what was clearly posted here regarding the plagiarism, all of the cited examples in various books, boiled down to a couple of paragraphs about ferrets.

I think Ms. Rowling is being oddly grabby-grabby. She has made BUCKETS of money off of her series.

I really don’t understand this attitude at all.
At which point, exactly, does an author become a “rich bitch” without the moral right to protect her work?
At one million? Two?

Although, to be sure, what with WB being in on the suit, it feels weird to rooting for the big corporation against the little guy ;>

To be rooting for, dammit!

An edit-option like they have at Dear Author would be nice.
I always spot the typo the very split second I hit the Submit-button ;>

Is it merely the money?  Is it not plagiarism if there’s no money involved?  If it’s done openly and attributed?

Just what IS the ethical difference?

If the author’s said “don’t write fanfiction,” many fans choose not to. The “use” to which we’re putting it to is debatable—I do this for fun and because it’s easier to connect with other writers online through a work we both already love than it is for us to read and invest in each other’s original work. I do talk to my friends about my original work, but I’d hate to kill their interest. So then we RP. We don’t copy scenes out from the movie; we see how we think characters would act in new situations and with new relationships and experiences. I believe there’s a creative difference. However, if I were to make money off it, I think it would cross the line between “harmless borrowing” and “theft.”

I do think that fans give back to their fandoms by keeping interest alive and by continuing to buy material.

I think that “openly and attributed” actually may be a large part of it. Consider every author who writes in the “Cthulhu mythos”—they’re basically writing fanfiction, but at this point in time they can legally make money off it. However, they state that they’re writing something with the same rules and themes as HP Lovecroft’s work, and then it becomes acceptable to bring to the table their original characters, ideas, and plots, even though the. . . flavor, for lack of a better word, and basic concept isn’t theirs.

Now imagine if someone tried to squirrel by with a piece clearly inspired by Lovecroft, but no attribution to his mythos. No. It might not be prosecutable, but we’d all know what they were doing.

To tie this back to the topic for everyone who already knows what they think of fanfic, SVA’s work on the Lexicon took advantage of fannish contribution. People saw errors on a free site and sent in corrections, and they’re pretty annoyed that SVA is now trying to make money from something they improved.

Robin, the legal case you cited involves a parody.  Fair Use decisions have generally allowed the use of copyrighted work in a parody that is created specifically to ridicule the work.

How about the case of The Wind Done Gone, which, as I understand it, is not a parody, but a retelling from a different viewpoint of Gone With the Wind? The copyright owners really fought that one, but lost.

Also, I read the story about Misha this morning with my coffee.  How do these people think they are going to be able to pull off such fakes nowadays?

And finally, does anyone write Shakespeare fanfic? Wouldn’t that be cool? (Yes, I’m revealing my age here.)

The Wind Done Gone was considered a satire.  (note: satire and parody are two different things.  Parody necessarily involves some amount of copying to “conjure up” the original).

The difference, ethically (and in general), between fan fiction and plagiarism, i.e., the Cassie Edwards repeated use of other people’s words, is the attribution or lack thereof.  Fan fiction gives attribution to the original authors work.  Plagiarism is the passing off of someone else’s original work as your own.

I definitely think that there is probably fan fiction out there that a) plagiarizes and b) infringes.  But I am not going to condemn an entire body of work based upon the individual pieces that may be unethical or may be violative of the copyright act just like I am not going to condemn the entire romance genre on the basis of work by Cassie Edwards or Janet Dailey.

I also think that there is fan fiction out there that is not infringing and would be considered transformative enough.  I.e., I have thought that a work that transformed JR Ward’s BDB series into a gay romance rather than a straight might very well well be considered satirical and creative enough to overcome a copyright infringement challenge.  The goal of fair use is to allow comment, criticism, commentary on original works.  Some fan fiction is going to meet that and some is not.

I definitely think that there is probably fan fiction out there that a) plagiarizes

*coughcoughcassieclaire*

I know that’s not exactly what you meant, but I think that she is a good example of someone who clearly crossed the line from original writing (and pardon to authors who chafe at the term, but meaning, she wrote the words herself) to outright plagiarism. It just wasn’t KR that she copied.

For those interested, here’s a summary. I know there is loads more out there on the web about her, including plenty at Fandom Wank, but I couldn’t make the links work.

http://www.fanhistory.com/index.php?title=Cassandra_Claire

JKR I mean!

Robin, the legal case you cited involves a parody.  Fair Use decisions have generally allowed the use of copyrighted work in a parody that is created specifically to ridicule the work.  Is that the intent of fan fiction, to ridicule the original work?

But I’m not making a legal argument here, just asking an ethical/philosophical question.  There was a great outcry and gasps of moral outrage when Edwards was discovered to have copied some paragraphs of description about ferrets.  She was castigated fiercely for plagiarism and stealing someone else’s work.  It was considered a Bad Thing in no uncertain terms.

I referenced the “Pretty Woman” case for a couple of reasons.  First because it demonstrates that profit is not necessarily a bar to fair use.  Also because parody was merely the issue on which 2 Live Crew prevailed.  2 Live Crew had initially filed for summary judgment—that is, a ruling in their favor previous to discovery and trial.  They were denied SJ (and therefore required to have the case tried by a fact finder, i.e. judge or jury) because “2 Live Crew’s song comprises not only parody but also rap music.”  Consequently,

The absence of evidence or affidavits addressing the effect of 2 Live Crew’s song on the derivative market for a nonparody, rap version of “Oh, Pretty Woman” disentitled 2 Live Crew, as the proponent of the affirmative defense of fair use, to summary judgment.

Yet they ultimately prevailed in the case.

That case brought up many important issues around the complexity of copyright protection and fair use. As a defense, fair use is something that is judicially determined on a case by case, fact-intensive basis.  Yes, there are certain categories traditionally designated as fair use categories (scholars could not work otherwise), but whether a particular work falls within those boundaries is decided *as a matter of law* only when challenged by a copyright holder alleging infringement.  At the same time, though, fair use is such an important limitation on copyright (like the fair use doctrine) because of the balancing between incentivizing creativity and protecting the public benefit derived from the free flow of ideas.

IIRC, Orbison’s camp argued that they could have thought of the same idea and should prevail because they should retain the right to do what 2 Live Crew did.  However, one might argue that the market for 2 Live Crew’s song was not created until they wrote their song, and therefore Orbison would be trying to claim a right someone else actually created.  All of which connects to what Jane said about fan fiction and about the differences between derivative and innovative work (and begins an answer to why I think the Harvard IP blogger may have read the NY Times piece too broadly).  To a large degree, you don’t really know what side a work falls on until it’s written.  With works in the gray zone, it will likely take judicial evaluation to know where they fall.  And as the 2 Live Crew case shows, the evaluation is itself multi-layered and requires a lot of balancing of interests.  (and none of what I say should be construed in any way as legal advice or opinion)

Now, as for the difference between fan fiction and the Cassie Edwards situation, I see absolutely no ethical comparison.  The argument in reference to Edwards is that she took work from numerous sources and plopped it—sometimes in whole, unchanged form—into her book and subsumed it all under her own name, without attribution and, if you believe the terms of a publishing contract requiring that an author submit original work, without intention for people to know it wasn’t hers.  Or more narrowly, while people might think that she derived certain facts or details from research, they would not know or necessarily think that the *expression* of those things would be someone else’s. 

OTOH, fan fiction exists, by its very nature, as, at the very minimum, homage to another work.  It would have no relevance as fan fiction without this element, because writers and readers of fan fiction are interested in the work precisely because of its acknowledged relationship to another work.  I think it would be near impossible to plagiarize from the other work in that context, because fans are often so educated about the contents of the other work (although certainly fan fiction can plagiarize OTHER works).  And while some fan fiction can be judged as infringing, as Jane said, that is an individual evaluation. 

But strictly as a matter of ethics, IMO it comes down to intent, and fan fiction, by its nature and collectively construed definition, overtly and publicly acknowledges the work that inspires it.  Edwards’s books did not, NOR was her purpose IMO the same as it is with fan fiction.  Fan fiction exists because of fans’ love for a book or series, and it’s an open adoration that INVITES remembrance of another work, in much the same way that Mr. Darcy Takes A Wife invites (even relies upon) remembrance of Pride and Predjudice or “Ten Things I Hate About You” invites remembrance of Taming of The Shrew. 

What in Edwards’s books conforms to any of that, especially in the absence of ANY acknowledgment of works that are not obviously within the public awareness?  If she really wanted to pay homage and remembrance to Native American cultures, it seems to me that one might start by acknowledging those others who have devoted their careers to studying and writing about those cultures (and not, for example, taking chunks of their work and transferring them unchanged to work bearing ONLY her own name).

More generally, reading a lot of the comments here (especially the ones in support of Rowling), and the belief that those in her fan community have around RDR prevailing, it strikes me that fan communities often feel a loyalty to the author that may exceed the fans’ legal rights (another potential distinction from the Edwards situation?).  It’s one of the things that often has me shaking my head in confusion and frustration when authors take a ‘no fan fiction’ stance.

If Ms. Rowling is rich, so what? Those are her creations. The fact that she’s not a ferret researcher doesn’t mean she deserves to have her words stolen.

I couldn’t have said it better myself.

I keep hearing two themes that disturb me greatly.  First, that because JKR is rich, she should stfu and open up the HP gravy-train for everyone to share.  Second, that because she wrote the book(s) in ways that people don’t like, she somehow betrayed them and has forfeited the right to say what should and should not be done with the universe SHE created.

Both are hogwash.

Good for her that she has more money than God.  GOOD FOR HER.  Better her than some troglodyte who tosses a ball around for a living.

And good for her that she wrote the books how she wanted to.  (Although I’d like to smack her around just a wee bit for killing mySnape.)  For her to have tried to accomodate her fanbase would have been not only ludicrious but impossible.

I just don’t get how JKR is any different from Paul Tolme when it comes right down to it.  Excpet for his notable male hotness.

Although, to be sure, what with WB being in on the suit, it feels weird to rooting for the big corporation against the little guy ;>

I KNOW, right?  LOL I can scarecly recognize myself.

Just some further thoughts…

It does seem that after a point, the “public” develops a sense of ownership in what they really love.  This is human nature, I guess.

Nora, I’ll take your point about the extent of Edward’s infringements, because I never went through the whole point-by-point compendium, I just read the blog and comments and the interview with the ferret guy.

But brace yourselves…I still don’t see how her copying is much different than fan fic copying in terms of using someone else’s work in place of sitting down and creating your own from scratch.

To quote Newton (woo, attribution!), every author stands on the shoulders of giants. If there’s a single one of us out there who can claim there’s not a smidgen of their work that doesn’t draw on things they’ve read, I’ll openly call them either blind or a liar.  And I’d venture that most all of us have seen that line of dialogue or paragraph or even character that seems so perfect we are dying to use it. 

But we don’t just plagiarize it verbatim because that would be lazy, right?  Original creation demands that we take that wonderful bit and make it so thoroughly our own that it’s not recognizable as the work of someone else.  By doing this, we force ourselves to develop our own vision of it and our own voice, to bring our original self to the work.

This is hard hard HARD work. Original work demands that we put ourselves into it ALL the way; we don’t take the lazy way out (yes, lazy—what else shall I call a deliberate choice not to exert effort?) and just pick up where another author left off.  We don’t lift full sentences and paragraphs, and we don’t grab a cool character—personality, history, middle name and all—whole from someone else.  Those things are rightly called plagiarism because they are a failure of originality, and frankly a failure of personal effort because originality requires personal effort.

Before everyone fries me for calling fan fic lazy, let’s make a distinction here.  If you’re writing fan fic to practice your skills, or just to get down in black-and-white a personal fantasy about HP for yourself and your buddies, fine. Keep it on your hard drive and enjoy it. Twelve-year-old girls are exempt as young, naive and star-struck. 

But to create an entire work for public consumption based on someone else’s effort and goundwork, in particular a story that could not exist without that groundwork—that’s where I personally find fan fic to be plagiarism at about the same level as Edwards’ copying.

I don’t personally carry a lot of outrage about either one.  I can’t get all up in arms about Cassie, and while I would find it pretty creepy to see fan fic based on my own work, I’m not on a crusade to eliminate it.  But I do see them both treading the same moral ground of appropriating someone else’s effort instead of exerting one’s own.  Whether or not attributed, whether or not a profit is made.

So that’s what I’m asking.  Why is that so different from Cassie Edwards?  Why is taking a paragraph about a ferret, or even a page of dialogue, so worthy of scorn and ridicule, but fan fiction is supposed to be a nice compliment to the author of the original work?

Fanfiction occurs when an author’s world comes to life so vividly in the mind of a reader that the reader begins to think up new stories for the author’s characters. It is an enormous compliment to the writer’s skill.

However, that doesn’t give the reader the right to write their stories down and post them on the internet. Many authors object strongly to fanfiction, and I support those authors’ right to tell fans not to create or post it.

I don’t, however, understand why those authors do so. I consider it financially foolhardy for the following reason:

One thing that strongly drives book sales is word-of-mouth endorsements—one person telling another how much they loved a certain novel. People who get involved in fandoms may stay enthusiastic about the original book for years afterward. They keep talking about it to their friends for years.

They are probably driving word-of-mouth sales.

They are also doing very little harm to the author. Fanfiction is offered for free and gives attribution. It’s also never read instead of the source material, so it isn’t competition.

I understand why some authors blow a gasket over fanfiction. Someone is infringing on their work; the author’s creative toes are being stepped on. The fact that fanfiction is at worst a badly written compliment and at best a marketing tool does not calm their outrage.

I would argue that it should, for purely financial reasons, but when it doesn’t, I support the author’s right to tells their fans not to create fanfiction.

Ms. Rowling gives her blessing to the Harry Potter fandom because she sees it for the expression of enthusiasm that it is.

Mr. Vaander Ark, however, is trying to make money by repackaging Ms. Rowling’s words and selling them. That’s not enthusiasm; that’s bootlegging.

The difference in plagiarising in the case of Edwards and in fanfiction lies in intent and attribution.

Fanfiction is, as Robin stated so eloquently above, attributive by its very nature, whereas Edwards lifted work done by others wholesale without at any point recognizing their efforts.

One thing that strongly drives book sales is word-of-mouth endorsements—one person telling another how much they loved a certain novel. People who get involved in fandoms may stay enthusiastic about the original book for years afterward. They keep talking about it to their friends for years.

The fans who love something so much they bother to create derivative work are also often the kind who will buy everything even remotely connected to their beloved books/shows/whatever.

I think the reason (one reason, anyway)some authors/creative rights owners freak out is because they don’t understand that fanfiction isn’t about someone mooching off authors’ years of work in order to further themselves on the back of others.

Simply put, fanfiction is tribute, not theft.
It tells the author of a particular work that the fanficcer cares enough about that author’s charaters/is involved enough with that author’s world that they think about what else could happen.
Sure, sometimes they come up with some fairly disturbing stuff, but there’s a rotten herring in every gravy-boat.

The fans are not your enemy.

Unless, of course, it’s an fan ass like Steve Van Ark, in which case…lay it on!

I wrote my doctoral dissertation on Harry Potter fanfic, and just wanted to mention a few things.

1)  Fanfic is *not* illegal; there’s no definitive US case law involving amateur, not-for-profit productions, and until there is, it’s impossible to say that fanfic is either “legal” or “illegal.”  (Moreover, since copyright infringement is decided case-by-case, making that kind of categorical statement about an entire genre is incorrect.)  However, as other people mentioned, there’s the potential for a solid Fair Use defense for most fanfic, if it ever came to court.  (Legal scholar Rebecca Tushnet, who has written about fandom and copyright, points out that porny fan stories—which cause the most outsider freakouts—are among the easiest to defend, legally; adding explicit sex to a series that contains no explicit sex—i.e., Harry Potter—is inarguably transformative.)  “Criticism and commentary” is allowed under Fair Use, and much fanfic *does* critique and comment upon the source text, in the form of fiction rather than scholarly essays.  And even fanfic that isn’t necessarily “critiquing/commenting” still usually contains a very high ratio of original work to borrowed material. 

1a)  Copyright infringement is about theft—taking money away from the person it should be going to.  Plagiarism is about *fraud*—passing off someone else’s work as your own.  (This is one reason why a case involving fanfic probably will never make it to court—no money is being made.  Also, it’s, well, *fan*fic:  many copyright holders don’t think it’s in their best interest to piss off their most dedicated audience.)  As for plagiarism, using someone else’s characters and plots is not plagiarism, which is about specific words in a specific order.  Like parody, fanfic needs to use a certain amount of the source material to be comprehensible as fanfic, but it’s almost always about characterizations and situations, rather than chunks of Rowling’s actual text.  Also, as others pointed out, fanfic writers make it very clear that the characters originate with Rowling. 

2)  Fanfiction is part of literary tradition; people have been using other people’s characters and plots to tell their own stories for an *extremely* long time, both before and after modern copyright law came into being.  There have been several attempts to name and discuss the type of literature that is extensively and explicitly intertextual to a specific pre-existing work:  David Brewer (in The Afterlife of Character) calls it “imaginative expansion,” Abigail Derecho calls it “archontic literature,” I call it “recursive literature.”  Whatever you call it, it’s a category that includes Maguire’s Wicked, Brooks’s (Pulitzer Prize-winning) March, Clinch’s Finn, Stoppard’s Rosencrantz and Guildenstern are Dead—and fanfiction.  Fanfiction differs from those works in that it circulates *unofficially*, whether out of preference (you can find tons of Shakespeare and Austen fanfic online) or necessity (if the text it’s recursive to is in-copyright). 

2a)  This is a bit oversimplified, but not untrue:  “originality,” of the “I made up these characters and plot all by my lonesome!” is a very modern literary virtue—as in, like, Romantic-era modern.  Prior to that, if you had pretensions to Great Literature, you were expected to tackle the Great Stories of antiquity (the Bible, classical myth and history, etc.); total originality was for lesser lights.      David Brewer talks a bit about this, and tracks it through the development of modern copyright law.  The point is, it’s a mistake to act as if “using characters and plots you didn’t invent” is some kind of black mark against a work’s literary worth; if that were true, we’d have to throw out a good chunk of the Western literary canon, including most of Shakespeare, Milton, Chaucer, everyone who ever wrote about King Arthur, every retelling of the Odyssey (incl. Joyce’s Ulysses and Frazer’s Cold Mountain), and on and on and on. Brewer discusses this. 

3)  I’ve been following the Lexicon wank closely, and it’s very, very obvious that Steve Vander Ark and RDR books are in the wrong. 

3a) First, in the published version of the Lexicon, there will be almost NO original content—as the lawyers said, alphabetization is not sufficiently transformative.  There’s also the fact that SVA and RDR were initially fudging all over the place about what, exactly, the published Lexicon would contain—initially, they said it would have essays, but most Lexicon essays were written by other fans, none of whom were contacted for permission to reprint their work, and who raised a stink about that.  When SVA/RDR finally turned over their working manuscript, it was entirely encyclopedic in nature, with very little original content.  Someone above mentioned SVA/RDR’s extraordinarily bad faith, and that’s just one example.

3b) All those other HP references on the market contained an acceptable amount of original content, such as commentary or explication of myths/folklore/etc., to get by.  They also made very clear that their texts were “unofficial”—as in, not endorsed by JKR/her publishers.  The Lexicon again, doesn’t have enough original content, and also wasn’t making it clear that it was *unofficial*.  Which leads into…

3c) Actually, Teddypig, the fact that Rowling is planning her own encyclopedia *does* matter, as far as copyright goes—one factor in copyright infringement is whether or not the possibly-infringing work will be in direct competition with the work of the copyright holder.  That’s one reason why amateur, not-for-profit stuff—such as the web version of the Lexicon—is okay with Rowling; there’s no direct financial competition with her own work.  But a published, for-profit Lexicon encyclopedia would be competing financially with her own encyclopedia.        And as the copyright holder, she’s the only one who can legally make money off derivative works—i.e., works that aren’t sufficiently transformative to fall under Fair Use. 

3d)  Copyright isn’t like trademark—you don’t risk “losing” your copyright if you don’t defend it, like you do with trademark.  The fact that JKR allowed, and even praised, the web version of the Lexicon doen’t matter.  Rowling has a very clear line in the sand as to where she’ll defend her copyright—don’t make money off my work—and by publishing the Lexicon for profit, SVA/RDR stepped over that line.

3e)  Rowling is right; if SVA/RDR books win, copyright holders will have to start policing online fandom *very* carefully.  And fans’ fear about that policing isn’t rooted in “OMG we’re doing something illegal and will get caught!”—as mentioned above, there’s no case law declaring fanfic illegal.  However, most fans don’t have the resources to fight back if someone like Anne Rice sues them. 

Ha, spam word is “union93.”  Viva la revolucion!

I don’t personally carry a lot of outrage about either one.  I can’t get all up in arms about Cassie, and while I would find it pretty creepy to see fan fic based on my own work, I’m not on a crusade to eliminate it.  But I do see them both treading the same moral ground of appropriating someone else’s effort instead of exerting one’s own.  Whether or not attributed, whether or not a profit is made.

The way I read your comments there’s a conflation (drink up!) of plagiarism and copyright principles.  In the spirit of full disclosure, I believe that many authors overestimate their rights under copyright, so I have favor narrow interpretations of copyright and broad interpretations of fair use.  But even taking that into consideration, I think there’s some slippage in your comments between the ethics of attribution and the concept of use/inspiration/derivation. 

I’m not sure I can yet fully articulate all the threads of my perceptions here, so I’ll just start by asking you where you stand on a book like Mr. Darcy Takes a Wife.  And ideally I’d suggest that you peruse the 98 Smart Bitch collected pages chronicling the Edwards books.  Honestly, I have to think that you, of all people, would have a different opinion after reading those, especially given the historically strong defenses of authorship (i.e. its exalted status) as artistry and its inherent value as such that you’ve articulated here and elsewhere. 

But in any case, I’ll go back to my first question about a book like Berdoll’s, because I think that would give me a better understanding of how you’re equating the Edwards situation and fan fiction.  Because the essence of plagiarism is the *passing off of another’s work as your own* while what authors worry about in fan fic is *copying regardless of attribution,* which is the essence of copyright.  Copyright infringement, in other words, does not rely on intent as it relates to the actual copying.  Although plagiarism and copyright can intersect, they are also quite distinct and do not always coincide at all, as I’m sure you know.  I may be misintepreting your comments, so if I am, let me know how and where.

It does seem that after a point, the “public” develops a sense of ownership in what they really love.  This is human nature, I guess.

It’s also built into the legal principles of copyright law and its limitations.  Unlike real property, where the law traditionally and strongly favors private ownership rights (outside takings and eminent domain, of course), IP is much more cognizant of and inclusive of the public interest in and benefit from communal possession of certain things.  In part, I think, it’s a reflection of the inevitability of limited materials.  While there can be potentially infinite combinations of elements, and therefore potentially infinite novelty in creativity, the elements themselves are not so endless, and the fact that people are so often using the same components—sometimes in mutual ignorance of others working on the same ideas, etc.—creates the presumption of community ownership of these elements.  Not to mention the way these elements travel down through time and space as myth, legend, etc.  Thus part of the need to balance individual and collective interests in IP law.

Rowling is right; if SVA/RDR books win, copyright holders will have to start policing online fandom *very* carefully.  And fans’ fear about that policing isn’t rooted in “OMG we’re doing something illegal and will get caught!”—as mentioned above, there’s no case law declaring fanfic illegal.  However, most fans don’t have the resources to fight back if someone like Anne Rice sues them.

I see another issue here, I guess.  I’ve always thought that one of the reasons more authors and publishers don’t sue often is because they know the legal uncertainties (i.e. their lawyers know) and they don’t want a judgment in favor of the fan ficcers, because it creates precedent.  I mean, anyone can send a C&D letter, even if they have NO LEGAL RIGHT TO DO SO (and this is not uncommon).  So why would a judgment in favor of RDR disempower fan communities further?

~I can’t get all up in arms about Cassie~

We really have to disagree here. I read the comparisons. Any author who copies another’s work, word for word or with some mild paraphrasing is plagiarising. I get up in arms about plagiarism.

When someone builds a career by copying large portions of another writer’s work, I get way up in arms.

I don’t see fan fic in the same light, unless copying is done. Springboarding isn’t copying, in fan fic or in publishing. I understand perfectly why some authora object to fan fiction—and I figure they have a right to. It’s their work, their world, their characters.

But it’s not the same as copying another’s work then calling it your own.

Gotta go with Nora on this one.  The extent of Cassie Edwards’s plagiarism absolutely sickens me.

Which reminds me, offtopic from this post though—is anything happening with this, or has the publishing industry just let it fall by the wayside?  Seems she’s still publishing—publishing works full of plagiarism, acording to the research of one of the bitches a couple of posts down.

It papers filed on behalf of Rowling/Warner Brothers, it is shown that within the proposed Lexicon book is contained 2437 ‘glossary-type’ entries.  Out of that number only 403 do not lift text directly from Rowling’s work.

That’s a threshold of 16% of entries that do not copy verbatim or ‘plagi-phrase’ Rowling’s work.  It does not address percentage of extrinsic source materials.

Out of all the entries, more than half of the source citations are missing.  This does not include missing citations of extrinsic sources that have been added to reflect a ‘scholarly’ understanding of a word, a name, etc.

2034 entries are comprise 84% of works copyrighted to Rowling and trademarked to Warner Brothers.

The defense maintains this book is not derivative but transformative, and is a ‘scholarly reference’ book, even when their own expert states that scholarship is not the overall intent of the proposed book.

Robin, I’d be interested on your take of Posner’s ruling regarding the Pickett vs Prince case, in regards to the fan fic issue.  :)

Wow, this is interesting reading. For what it’s worth, I hope Jo shuts the guy’s little project down.

Me, I’d dearly love to stumble on some fanfic based on my books. That would just make my freakin’ day *g*
Although since slashing my characters would be kind of redundant, I’m thinking I might never see it. Sigh.

The Lexicon seems to clearly infringe on copyright.  Taking large amounts of text verbatim and repackaging it as your own is not fair use.  There’s no transforming, comment, criticism, or research going on here.

This case differs from those already mentioned.  The Pretty Woman/2 Live Crew case was deemed parody, and clearly transforms the original music into something new.

As far as 10 Things I Hate About You or Mr. Darcy Takes a Wife, neither Shakespeare nor Austen are under copyright.

In the Wind Done Gone, it was ruled a parody - and a work that was a direct criticism of GWTW’s depiction of slavery and the South during the Civil War.

So while these examples lend themselves to an interesting discussion about copyright/fair use/IP, etc, there aren’t really relevant to the Lexicon.

Although since slashing my characters would be kind of redundant, I’m thinking I might never see it.

Why, Ally Blue, you dirty-minded author you!

*Pretending like I’m not about to immediately go check out AB stuff*

Actually, the slash part isn’t the larger part of most fandoms. An author would be far more likely to stumble on some Gen or Canon Pairing fic.
Unless, of course, they went looking for smut…

Spamfoiler:image19. I wish…

Robin, while I generally would agree with your preference for broad interpretation of fair use, I have to disagree with you on this issue.  I simply cannot see how the proposed Lexicon book could ever be seen as being “transformative” when 84% of the entries for this encyclopedia are direct copies of the text of the Harry Potter books.  In other words, virtual copy/pastes.

Furthermore, the original plan for the book was for the cover of the book to contain the distinctive (and trademarked) “Harry Potter” font that adorns the books and is in the movies, as well as cover art in the style of Mary GrandPre (the cover artist for all seven US editions of the books), had the word “official” on the cover, and contained the quote about the online HP Lexicon from JKR’s website (which she wrote in 2003/2004), giving it the appearance of official approval from JKR.  According to SVA/RDR’s court filings from early in February, they changed the cover of the book in January so that these things were eliminated.  However, the book was originally scheduled for release in time for the Christmas holidays, so they were originally planning to release the book with a cover that was misleading to the average consumer (in my opinion its actually consumer fraud, even though it may not be in the law), and only changed the cover three months into the lawsuit, and after the first briefs had been filed by both sides.

As to the lawsuit against the Indian tribe, as I recall, JKR said on her website (and I’m paraphrasing here because I can’t be assed to go searching through her mess of a website in an attempt to find it) that it was actually the other copyright holders who filed that lawsuit, that her name was automatically attached because she is a copyright holder, and that she was not directly involved in that lawsuit; I may be “misremembering” that though.  This lawsuit, on the other hand, she is very involved in and has expressed regret several times that it couldn’t be brought to a resolution through other means.  (SVA/RDR recieved FOUR cease and desist letters and ignored them all.)

RE:  Fan Fiction.  It is my understanding that because fan fiction falls into a legal grey area, fan fiction websites generally comply with an author’s request that the site not allow any fan fiction based on their works, and will voluntarily remove any fan fics based on those works that are uploaded onto the site.  That is why the issue of fan fiction and copyright law has not as yet been a major issue as far as lawsuits go.  If Rowling wanted to shut down fan fiction all she would have to do is request that sites not allow Harry Potter fan fiction, and all HP fan fic archives (on reputable fan fic sites) would disappear.  The largest fan fic site on the web, FanFiction.net, actually has a list of authors who have requested that fan fics based on their works not be allowed, and they willingly comply with that.

IMO, Steve Vander Ark comes across very badly when one reads all of the information about how the proposed HP Lexicon book came about.  For years Steve fielded requests that he write a book based on the website, and each time he declined based on JKR’s copyright, and her stated intentions as far back as 2000 to write the “definitive” HP encyclopedia, which would include things both in the books, and information that never made it into the books.  In July 2007, Steve wrote to JKR asking that she allow him to help her write the encyclopedia and requesting that she help him move to England and get a work visa so that he could do so.  When she declined the offer, he began badmouthing her all over the place.  Then he decided to publish his own “official” HP encyclopedia.  This stinks to me of sour grapes, “fuck you”, and someone who has gotten too big for their britches.

All of this to say that I think that JKR is in the right of it here.  After reading all of the court filings on Justia, and the arguments of various people with knowledge of the law on the leaky lounge, as well as doing my own research, I think that SVA/RDR don’t have a chance.  JKR has so far been extremely supportive of the fan community, even directly participating in it.  She actively encourages analyses and scholarly essays on the books to the point of not only reading them but recommending some of them.  I’m not a lawyer, but to me the proposed Lexicon book goes above and beyond what should be allowable under the law.

But that’s just my opinion.

-Ali

P.S. JKR has so far not revealed anything about the books that she wasn’t directly asked to reveal.  The Dumbledore being gay thing?  She was directly asked a question about his love life.  Further, she has always couched these revelations in terms of “in my opinion”, “I always thought”, and “I think”.

**Doorbell rings**
Old Woman (opens door): Hello?

Man with Bag: Morning.

Old Woman: Yes?

Man with Bag: Would you like to buy a Harry Potter encyclopaedia?

Old Woman: No. Bugger off.

Man with Bag: I’ll throw in this Lexicon for half price.

Old Woman: Go away.

Man with Bag: (Groveling) Oh please.

Old Woman: Piss off! I’m still trying to pay off my Golden Compass boudoir set. Go bother Mr. Nebbish down the hall.

Man with bag: He’s into Artemus Fowl.

Old Woman: Old perv, isn’t he? Well, come back when a DVD of something interesting - like Neil Gaimen getting snogged by another man.

**Slams door**

Man with bag: No pleasing some people.

I don’t have much new to add, but wanted to thank Cat Tosenberger for your very clear and concise summation.

Drat!  I’d just like to clarify that only the first two paragraphs of my post were addressing Robin.  The rest was my personal thoughts.  Sorry if that created confusion!  Also, I just realized that the email address in my first post is wrong.  The one in this post is correct.

-Ali

I don’t personally carry a lot of outrage about either one

This comment, along with Ms.Crusie’s “What? They kill your dog or something?!” (Paraphrased ‘cause I can’t be arsed to look up the actual comment) makes me wonder if they would adopt the same wishy-washy stance if it was their work being hijacked in the manner common to Edwards and Daily.

Stance on plagiarism, that is.

Spamfoil: types78. Whoa, hopefully I’ll get it right before that…

Just commenting on the first story about the memoir as total fiction. There have been a few cases of this around the world and it just shows you can’t get away with anything.

In Australia, we had Helen Demidenko, who wrote a fiction/memoir about her Ukranian family’s role during WWII. In fact, you guys would love her. Not only did she create a memoir that was bogus, she has also been accused of plagiarism.

http://en.wikipedia.org/wiki/Helen_Demidenko

Thanks Kate.  :)  And Robin, my last reply got eaten, so just to clarify why it would be bad for online fandoms if SVA/RDR won:

If the Lexidiots win, copyright holders will have to start seeing every not-for-profit fan work as a potential threat, because a direct causal link will have been established between “she let non-profit fan stuff exist on the web for free” and “those fans then turned around and made money from it.”  Copyright holders will start cracking down *much* harder on fanfic, etc., to protect their interests—the reasoning being that Rowling’s lenience caused her to get screwed over, so other copyright holders need to watch their backs wrt non-profit fan stuff, because it could bite them in the ass.

Like you, I favor a narrow interpretation of copyright and a broad interpretation of Fair Use.  In general, I completely agree with you that most C&D letters are seriously problematic—copyright holders are often banking on fans not knowing the law, or having the resources, to fight back.  However, sometimes someone with legal knowledge will come to fan writers’ defense; a few years ago, WB sent a C&D to a HP fan site hosting mainly porny fic.  After some wrangling, the site agreed to require registration and a statement that readers were of age to access the material, and the WB lawyers backed down.  Rowling and co. weren’t concerned about copyright infringement, but that kids might stumble upon it unawares—once those measures were taken, she was satisfied.

Even with Rowling’s general support of fandom, though, the published Lexicon clearly goes beyond the pale—Ali, I think, mentioned truly obscene ratios of JKR’s words to SVA’s criticism and commentary.  This isn’t a creative or scholarly response to Rowling’s books—it’s pretty much just straight up rearranging and “plagi-phrasing” (great term!) of Rowling’s own words.  Therefore, it’s actually a great test case for Rowling, because it so clearly establishes what is and isn’t acceptable.

This is hard hard HARD work. Original work demands that we put ourselves into it ALL the way; we don’t take the lazy way out (yes, lazy—what else shall I call a deliberate choice not to exert effort?) and just pick up where another author left off.  We don’t lift full sentences and paragraphs, and we don’t grab a cool character—personality, history, middle name and all—whole from someone else.  Those things are rightly called plagiarism because they are a failure of originality, and frankly a failure of personal effort because originality requires personal effort.

But to create an entire work for public consumption based on someone else’s effort and goundwork, in particular a story that could not exist without that groundwork—that’s where I personally find fan fic to be plagiarism at about the same level as Edwards’ copying.

As Cat Tosenberger mentioned, books/plays like “March” by Geraldine Brooks, Jean Rhys’ “Wide Sargasso Sea,” and Tom Stoppard’s “Rozencrants and Guildenstern Are Dead” are recognized for their originality and literary merit, and the way they’re created (taking an original story and reinterpreting it, or widening it) is exactly what fanfiction does.

Would you say these writers made a “deliberate choice not to exert effort,” or is it possible that the process that these books and the majority of fanfic (lots of it dreck, some of it quite astonishingly transformative in its handling of gender, race, class, etc. in ways that challenge the text) falls under is simply a different kind of effort than you’re personally familiar with?

There’s an enormous difference, to my mind, between copy/pasting someone’s words (Cassie Edwards), and watching every episode of the X-Files and trying to come up with a new angle the story could be told from, or a fleshing out or reinterpretation of motivations, or a believable interior life for Dana Scully that doesn’t have—and probably won’t—to match up with any other fanfic writer’s, because it doesn’t have to be the original text, but a plausible extrapolation from it.

And finally, does anyone write Shakespeare fanfic? Wouldn’t that be cool? (Yes, I’m revealing my age here.)

Jean, yes! And it’s lovely.

Actually, my favorite “vignette” (short-form) fanfic is inspired by The Tempest. It’s called “Bravely, My Diligence.”

I’m not an author, so I’ve no idea about the contractual aspects of a publishing deal.  I’m curious of what some who post here would have to say regarding an unpublished author’s first time book deal, specifically for the Lexicon book, as seen on justia.com.

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/37/10.html

I’m not asking anyone to divulge the specifics of their deals, that would be horribly crass and certainly none of my damn business.

But just a general opinion to rate this deal on a 1-10 scale {poor to fair to fan-freakin’ unbelieveable}.

Nitty-Gritty monetary/rights info:
Publisher indemnifies author from infringement lawsuits;
12% net sales, English version {retail/wholesale} in US;
10% net sales, English version {retail/wholesale} abroad;
10% of foreign language rights;
For each book is listed on NYT bestseller list, $500 bonus per week added to royalties;
50% of net income that is derived from ordering book online via 3 site links {Floo Netwook}
50% percent of paperback reprints rights by other publishers or book club editions;
All other nonbook subsidiary rights reserved by author;
Publisher will provide 500 copies of book at no charge {Author’s copies} additional copies available for purchase at discount of 50% off retail sails; no royalties for Author’s copies or additionally purchased copies of the book.

I guess the reason I’m so intensely curious is that I’ve seen people discuss his contract, people who claim to be in the publishing industry, and they seem shocked at it…so I’d like to hear from some that I “know” are indeed part of the industry and would be able to say if this were a fairly standard first time contract or not.

For the most part, fanfic is not meant to be published. There are fanzines, but those are self published and not sold for profit. At least, that’s the general idea.
I have a copy of The Magical World of Harry Potter and The Sorcerer’s Companion, which is the second edition of Magical World. While both are tied to the Harry Potter world, they’re about magical creatures and how they related both to the Harry Potter world and their place in folklore. While they are not authorized, they are not infringing on the world that JKR created. They deal with the magic world in general.
The proposed Lexicon book is about Harry Potter only. There doesn’t seem to be any literary merit to it. As a website, it works, but as a published book it would be very boring. Critiques, trivia, literary analyzation, anything would be better. But as it is now, it’s in the wrong.
It doesn’t matter that the series is over, that JKR has made lots of money, that she’s planning to do her own encyclopedis, or some people didn’t like how the series ended. Steve Van der Ark was told several times not to publish the Lexicon.
If an author or copywrite holder makes their wishes known that they don’t want fanfic done of their work, the fans should respect that. Fanfiction.net, the most well known and popular multi-fandom archive refuses to allow fanfic from those who have made their wishes known.
Yes, Shakespeare fanfic exists. Bible fanfic exists. Bible slash exists.

Karmyn, it’s not even entirely clear that WB/JKR told SVA/RDR that he couldn’t ever publish the Lexicon under any circumstances.  From what I’ve read of the legal filings, it seems that they were genuinely trying to resolve what they saw as problematic with the book.  A lot of people involved with the Potter franchise in a professional way were aware of SVA and the site, and they really have been quite generous in how much leeway they give HP fans.

Before the first big batch of legal filings went up, a lot of us who’d been following the case were thinking that the Lexicon might be published in some form, without those parts that were just quote after quote and without the incredibly misleading cover design.  I for one thought it was unpublishable in its current form (though what its current form was was a question of great debate; RDR gave contradictory answers about that), but thought that both sides could come to an agreement as to the content of the book.

However, RDR became more and more intractable in the face of what seems to have been a very patient legal team on the WB side until they really didn’t have a choice but file for the injunction.

There were ways for Steve Vander Ark and RDR Books to get out of this legal mess and still have a book to publish.  They chose not to.

Robin, I’d be interested on your take of Posner’s ruling regarding the Pickett vs Prince case, in regards to the fan fic issue.

Okay, first I need to correct a mis-statement from my long post on the Pretty Woman case, which is that a motion for summary judgment occurs AFTER discovery and BEFORE trial.  That’s what I get for not reading through my own post until after I hit that ‘submit’ button, lol. 

As for the relationship between the Posner decision in the Pickett case and fan fiction, I don’t have a well-informed opinion, anonymoose.  Obviously the issue in Pickett is distinguished in that Pickett was actually seeking copyright in his guitar design, even though it was held to be factually indistinct from Prince’s symbol (and therefore plainly derivative).  It seems more like the recent Silverstein - Parker case (in which Silverstein tried to assert copyright in his compilation of Dorothy Parker poems).

I really need to think more about the copyright issues as they relate to the concept of a derivative work, because, as is the case with the Lexicon, that seems to be where a lot of the legal action is (i.e. is fan fiction “supplementary” rather than derivative,  does it necessarily infringe, etc.).  Then there’s the whole fair use issue and the question of whether/how fan fiction comments on another (copyrighted) work (which is where a lot of the action is in the fan fiction issue, IMO).  Then there’s the intersection between derivative works and fair use, which is a different place from where the Pickett case stands, as well.  And of course there’s the market issue, as well, which is clearly at stake in the Lexicon issue but not necessarily in the fan fiction context. 

More generally, the way fan fiction has become tied up in the Lexicon case is itself sort of fascinating, and shows, I think, the difficulty in separating the creature of law that is copyright from the moral, ethical, emotional connections that play into different perspectives (and I was glad that the Stanford crew addressed the “bad faith” issue in their brief).  I understand this difficulty, because the legal paradigm is so different from everything I was trained to, that I’m always acutely aware of having to make the separation myself and of how different the same issue can look from inside the paradigm than from outside.  I think that’s one of the reasons we saw so much merging of the copyright and plagiarism issue in the Cassie Edwards case.  So regardless of what ultimately happens in the RDR case, I think there’s always going to be significant tension in regard to the fan fiction issue, because of the emotional investments everyone involved has in any given work, whether it be a copyrighted book/series or a fan fiction story.

Wow, Caramel, that book deal is bizarre all right.  (For reference, I’m a UK-based young adult writer with several fiction titles published.)  I don’t know the non-fiction side of the business, but the fact that the publisher indemnifies the author from infringement lawsuits strikes me as very, very strange; all my contracts require me to declare that all content is totally original to me, I’ve dealt with any potential copyright issues myself, and that if I haven’t, it’s all on my shoulders and not the publishers’ problem at all.  It’s insane for a publisher to overturn that, especially for such a controversial title.

The percentages quoted for net sales are generous, but not wildly out there (7.5-10% is more normal in my experience, but I don’t know what’s typical in the US).  Foreign language rights at 10% is also normal.  The bonus for the NYT bestseller thing is nothing I’ve ever heard of before, though.  And the 50% cut of orders through those links is very off.  Assuming there’s a special offer involved, the publisher is getting less of a profit from those copies, so why are they giving a huge cut away?  The only time I would ever expect to see a 50% royalty is on an e-book.

As for the 500 author copies… WTF?  Is that a real figure or a typo?  (Serious question - I can’t load the docs through my dial-up.)  20, sure.  50… well, that would be seriously over the top, but maybe.  500?  What kind of publisher gives away more than ten thousand dollars worth of merchandise for no return?  I honestly, literally can’t believe that these guys are for real.  They’re crazy!

Everything I’ve heard about this case makes me more and more convinced that RDR are not a proper publisher on any level, but a cowboy outfit trying to make a buck off of publishing books with very little grasp of the standard practises or legalities involved.  They have no idea what they’re doing, and they’re arrogant and duplicitous on top of it.  They’re going to get utterly creamed by JKR’s lawyers, and I for one think they deserve it.

The bonus for the NYT bestseller thing is nothing I’ve ever heard of before, though.

http://pubrants.blogspot.com/2006/07/agenting-101-bonus-part-seven.html

That’s some nice work with my tags, that is.

Huh.  I stand corrected on the bonus thing, although it still feels like a rather dodgy practise to me.  Give me a nice, solid money-for-sales agreement over hypothetical rewards for jumping through hoops, any day.

I’m not sure that bonus clause and the number of advance copies does RDR any favours with respect to their attempts to create a “David vs. Goliath” argument, either.  Pretty hard to argue that they’re not aggressively competing with JKR’s market for an encyclopedia if they’re anticipating selling that many copies.  (Leaving aside the issue of whether, in this like many other things, they’re totally delusional.)

Nomad, you’re absolutely dead-on with your interpretation of RDR Books. They’re just about the most pathetic publishing institution…

They did not have an IP lawyer before this debacle. And when it all began, they had some guy’s cousin doing the legal footwork. The cousin was, I believe, a specialist in real estate law or something similar.

RDR books is a big bucket o’fail. They’re David…if David were armed with nothing more than a rubber band, without the support of God.

(Info from Fandom Wank, which has been a consistent source of reliable information throughout this whole mess.)

Robin 5:23 on 2/29 wrote:

“My {sarcasm alert} favorite {/sarcasm alert} Rowling lawsuit was the one she filed against an Indian festival for their decision to build a life-sized model of Hogwarts:  http://www.sajaforum.org/2007/10/religion-jk-row.html”

Just to correct the record, the fact is it that it was a corporate-sponsored event, not a non-profit religious festival, that was sued in India:
http://www.jkrowling.com/textonly/en/rubbishbin_view.cfm?id=17

Don’t believe everything you read on the internet ;)

Thank you, Nomad for your response.

The contract is for a fictional book that will primarily be marketed to children (and the online Harry Potter fandom).

Yes, the 500 Authors copies info is correct.  That number appears on the contract and it was duly signed.

The links that would earn 50% net profit are links for the ‘floo network’ which encompass HP-Lexicon (Steve’s site), the accio-quote.org site, and the-leaky-cauldron.org site (M. Anelli’s site, and a webmistress of the Floo Network; she was unaware of this net profit scheme that these links would have been used for).

As for the indemnity clause, Steve did indemnify the publishers as is standard.  What does not appear to be standard is that RDR Books were to specifically indemnify Steve against copyright infringement suits “specifically” brought by Rowling or her licensees/assignees, no others.

That’s just totally bizarre.  I’ll indemnify you but just in case your wrong (they assured him this book did not infringe, how they did so while not employing an IP expert is beyond me), you’ll indemnify me from lawsuits brought by Rowling/WB.

Does anyone think this is a factor in his not breaking with this publisher?  If he breaks contract then he’s no longer indemnified and can be named in this suit, yes?

@ SB Sarah:

The book in question is viewable in the court documents.  It specifically takes copyrighted materials from the site, mainly from it’s A-Z guide {generally copied verbatim from the books}, and without full citations for half of the quotes and no citations for the other half.

Out of 2437 glossary-type entries only 403 do not lift text directly from Ms. Rowling’s work.  The author goes on to plagi-phrase Ms. Rowling’s work without adding anything of substance in the manner of commentary, unless you count adverbs such as “sadly”, “probably”, “presumably”; or synonyms such as “it is unknown”, “they were not exactly”, “this may have been”, all followed up with plagi-phrased material.

“A line by line review of the Lexicon book reveals that out of 2437 entries, 2034 entries simply lift information straight out of the Harry Potter books.”—Jeri Johnson, Prof. English, Exeter College, Oxford

Percentage wise, the entries are 84% copyrighted materials belonging to Ms. Rowling.  That is not ‘fair use’, it is theft.

Sorry for the double post…

Robin, thanks for your response.  The reason I’d asked was because the the owner of the Lexicon book had also comprised a timeline entirely derived from JKRs books et al and put it on his site.

WB has used this timeline in their dvds apparently without his knowledge, but he’s known about it and had no issue with it up to this point.  Now he’s declared it’s his copyrighted materials and WB has infringed upon it so he should be compensated for that.

It’s briefly mentioned in the current lawsuit and I’d read the Pickett v Prince ruling and thought it had merit in countering infringement of Steve’s derivative copyright aspect.

Oh, and about the Durgha festival…it IS primarily a religious festival.  No one has to pay to view or walk through the pandals.  They are free and open to the public.  It’s a huge festival, lasting days.

This doesn’t mean it was non-commercial and non-infringing, though.  The groups which create the pandals [which are many and varied] are very much like the Rotarians in the US.  They get together and brainstorm ideas for fundraising.  They pool their money, they get corporate sponsors, they sell vendor’s stall for X amount of rupies {these vendors then make their own monies off of the infringed work via people coming to see the pandal}, and sell huge sign promotions (think Gatorade/Nike at the superbowl) again for X amount of rupies.  All of the rupies go in the ‘kitty’ and these funds pay for the creation of the pandal.  Unlike the Rotarians, the pandal societies do not ensure their pandals {like stationary parade floats) are not infringing the rights of others.

The court ruled it was non-commercial venture, however, the people should not have proceeded without proper permission and in future must seek permission of the rights holder or will be held fully accountable for infringement.

Both sides won, in a manner of speaking.  The pandal got to stay up {and was the belle of the ball} and Rowling’s rights were upheld and will be honored in any future events.

Has anyone posted the filings in the Indian festival case, because Rowling’s comments on it are, ah, confusing (I think her definition of a “technicality” is different from mine, for starters). 

I did, though, find an interesting blog entry on the issue:
http://scrivenerserror.blogspot.com/2007/11/accio-lawsuit.html

Finally someone who could answer the copyright rather than trademark question!

Still, though, if Rowling insists that the damages were a mere “technicality” that she and WB “waived,” why not just file for injunctive relief?

The complaint would be really helpful.

Robin, I can’t answer the question about the filings, b/c I have no idea. But in defense of JKR’s comments on the issue, if she was as uninvolved as she says (ie if the lawsuit was entirely driven by WB and her name was only on it b/c it had to be), why would she know the exact technical details of the suit? I mean, I suppose you could say it’s her responsibility to know all of these things, and I’d agree, to a point. But hell, WB confuses me as a consumer…I can’t imagine what it looks like from the inside.

Sorry, no links to the case law.  I do know that they sought injunctive relief. These were some of the reports that I came across, though:

“Allowing the organisers to use Potter replicas till October 26 – the last day of the festivities – Justice Kaul ordered the “defendants (organizers) in future to model their pandals on any of the subject matter only with the leave and liberty of the plaintiff (Rowling)”.

Refusing to impose compensation, the court termed the organiser’s use of Potter characters in Durga festival as a “non-profit making enterprise” without any aim to derive financial mileage. “

And another comment from WB:

”...The injunction was made in our favor, but the court decided that there was insufficient time for the Harry Potter elements of this particular event to be amended or withdrawn. We are pleased that the court has recognized that such events cannot proceed without Warner Bros’ permission which should have been obtained.”

About Justice Sanjay Kishan Kaul’s rejection of Warner Brother’s claim for compensation – on the grounds that a claim could not be made on a public purpose such as a puja – the statement issued in London said: “Court requirements in India meant that minimum damages initially had to be claimed, but we expressly waived these in the court hearing.”

“Warner is thought to have been informed by its legal advisers in India that this was a commercially organized event which was selling 40 to 50 stalls at a cost of $600 each and banner advertisements at a cost of $250 each to local and internationally recognized companies.”

I’m so disappointed that I’m so late to this party, since I’ve been reading and writing fanfiction for ten years and therefore have a vested interest in the outcome of the lawsuit.

One of my livejournal friends, LaT, once characterized fandom as a “gift culture,” which I think is the most apt description of the community I’ve ever seen. The only currency in fandom is the work itself (story, vid, artwork), feedback (comments to fanworks), or acts of administration/organization (building someone’s website, organizing a fanwork exchange like Yuletide, organizing a postcard drive for an actor, etc.).

So, from the standpoint of someone who’s been participating in and observing fandom for a decade, the major problem with the publication of the HP Lexicon is that SVA is trying to profit off not just JKR’s work, but also the work that hundreds of fans did as their gift to other HP fans.

Fandom is a community, and like any community it has standards and mores that govern behavior; much of it has been developed over the thirty-some years that fanworks have existed. These codes of behavior aren’t enforceable in the way laws are, but that doesn’t mean they aren’t valid to a majority of fandom members. 

For the vast majority of people in fandom, the barest hint of anyone attempting to profit from fanwork results in many fandom members recoiling from it instinctively; the best example of this is the discussion of and around FanLib, a commercial service that debuted in 2007. In fact, it was this corporation’s attempt to profit on fanworks that in part prompted the creation of The Organization for Transformative Works, a nonprofit group that, among other actions, plans to create an archive of fanworks, as well as an academic journal devoted to the subject. (Naomi Novik, author of the Temeraire series of fantasy books, is on the Board of Directors.)

As you can probably tell, I’m rooting for Rowling in the lawsuit.

http://www.journalfen.net/community/fandom_wank/1143250.html?thread=173327826#t173327826
NWS

Fandom_wank gave Nora a boobie train. This is a great honor and reserved for those who show intelligence in the midst of wanking. Uh, not Nora wanking. Nora never wanked.
I’ll stop now.

spam word: getting57
I don’t think there were that many boobies.

anonymoose:  thanks; I saw a lot of those comments, too, and it made me even more interested in seeing the actual pleadings, lol.

snarkhunter:  I don’t expect any author to be well-versed in the ins and outs of copyright law (I mean, IP scholars and judges argue over its meaning ALL THE TIME).  It’s just that damages apply in any lawsuit, and they’re hardly a “technicality.” I’m not saying I don’t believe that WB drove the India suit, only that Rowling’s comments struck me as odd, what with so much litigation around her and in her name.

General question for Potter fans:  are there any circumstances under which you would see the sale of a reader-generated lexicon as ethically acceptable?

Robin: ooh, ooh! Pick me, pick me! I would not object to a reader generated lexicon that had a large amount of original material. I do own several such books. Some scrutinize the HP books, showing symbolism, motif and guessing at what will happen to each character. (Obviously, there were written before the series concluded.) Others investigate the role of myth and fairy-tale to HP.  These books were largely the creation of their authors. The Lexiconbook seems to be more one person writing “and then JKR says…”

That said, I confess that I do not like LexiconSteve. He’s made some persoanl choices that bother me. I’m also a little squicked by people who want to make a living by being The Biggest Fan of (insert fandom here).

The thing is, the Lexicon isn’t legitimate creative work in any sense.  It’s an alphabetised repackaging of Rowling’s work with the intention of making money.  I don’t know about you guys in the States, but here in Australia, I’m pretty sure that’d be illegal.  SVA and RDR are very, very in the wrong here; they know it, JK knows it and we (many of the fans) know it.  If they win, what’s to stop authors from deciding that they can’t afford to let online fandom run the way it does now?  As an (amateur) writer myself, I can’t help approaching this from a “writer first, fans second” perspective, and when looked at in this way, JKR has every right to do what she’s doing.

I hope she wins, not just because she’s right, not just because the law is, as far as I know, on her side, but because fans need to be reminded that they are playing in someone else’s sandbox and have the responsibility to behave themselves while they do.

General question for Potter fans:  are there any circumstances under which you would see the sale of a reader-generated lexicon as ethically acceptable?

Can I already get it for free on the internet? B/c if I can…no. No, there are no circumstances where selling it would be acceptable.

If it were more than just an alphabetized list with cross-references to other books in the series, ie if it were a sufficient scholarly work that did considerable legwork in digging up potential folkloric sources, that might be okay. If it had the creator’s (in this case JKR’s) blessing, that would be okay. As it is, it just reeks of entitlement and a misplaced sense of ownership.

Oddly, I feel somewhat differently about TV series, b/c there is no single owner of the ideas (the studio is not a person), and even if the creator can be identified (ala Joss Whedon, Chris Carter, or stupid JJ Abrams), those individuals usually have somewhat less creative control (by virtue of employing a writing staff) than an individual novelist. In the past, I’ve always sided with fans when they were faced with C&Ds from Lucasfilms or Fox Studios. But the difference was that all of those works were FREE—no one was trying to make a buck off of them. Fan culture is a free culture. We all know that going in.

Even someone who is able to take her fan work and transform it into a legitimate business enterprise still has to either have some transformative quality or provide a service that cannot be obtained from the original works. (For example, Naomi Novik, whose Temeraire books are fanfiction with the serial numbers filed off, or even Melissa Anelli of The Leaky Cauldron, who runs the nonprofit Leaky LLC/Inc., which is not at all like the Lexicon.)

A boobie train.

I’m so honored.

Plus, lots of very pretty boobies.

Nora

“And finally, does anyone write Shakespeare fanfic? Wouldn’t that be cool? (Yes, I’m revealing my age here.)”

Would “Caliban’s Hour” by Tad Williams count?  The Tempest from Caliban’s point of view.  (I wrote my senior midterm thesis on it. :-D)

Sorry, you’re wrong. The creators of the fan encyclopedia aren’t writing essays about JKR’s work or interpreting it or whatever; they are simply compiling HER facts into a book and trying to make money off it. I don’t care how rich she is, she owns her characters and has the right to sue!

Fanfiction authors don’t earn money.

Exactly. I’ve been in various fandoms for years and the only money I ever made was selling stuff on ebay or amazon and that’s not much.

Coming in late here… but it’s just all so fascinating!

@Lucy:
Sorry, you’re wrong. The creators of the fan encyclopedia aren’t writing essays about JKR’s work or interpreting it or whatever; they are simply compiling HER facts into a book and trying to make money off it.

Yes and no.  And that was part of the problem in the beginning.  The Lexicon site *both* compiles facts/quotes and presents them in an encyclopedic manner, *and* collects essays and so on. 

Problems started when JKR/WB said to RDR/SVA, “let us see this book you say you’re publishing”, and RDR (mainly)/SVA responded with a collection of contradictory statements, indeed, everything *except* handing over a manuscript of the book.

One of the early statements that still gives followers of this case a good chuckle was the snide “Just print out the website and you’ll know what’s in the book!”  Ha ha.  Of course, if you printed out the website, you’d get all the essays… which weren’t written by SVA himself, and for which permission to include in the book was not obtained from the actual writers.  After a while it began to seem that no, none of those critical essays (which might have saved the Lexicon) were actually in the manuscript (... or RDR had removed them by that time).  Honestly, they’ve changed their story so many times now, it’s difficult to keep track.

Let me state up-front that I’ve been reading about this case in detail for months now, following the FW postings, and I’m entirely behind JKR/WB.  Part of that is because RDR’s actions make it difficult to sympathize with them, as some of SVA’s statements make it difficult to sympathize with him.  Part of it is because I’ve been in fandom for almost 30 years, and am invested in its gift-culture, non-profit nature.  All of us in fandom put hours and hours into the things we do, almost always for free, as a gift to other fans.  So SVA put hours and work into developing a website?  That’s what we all do, it doesn’t make him special.

About the Lexicon, I’ll say this: it sounds very much to me as if it is not a “lexicon”, but rather, is a concordance.  And I think there is a great deal of value to a concordance for a work that is so huge.  And a concordance would, by definition I think, be exactly what the Lexicon sounds like it is: a collection of quotes of the canon’s words, but rearranged, indexed in a different fashion.  It’d be the easy way to find the answer to, “I want to see a collection of all the times JKR wrote about the expelliarmus spell in her text.”  Or whatever.

Concordances have a long and respectable scholarly history.  But, yeah—they don’t get published without obtaining permissions from copyright holders, if they are concordances of works still in copyright.

Under what circumstances would I be happy to see a reader-compiled concordance like the Lexicon published for sale?  That’s easy—when it fulfilled its legal obligations for publishing. 

The fact that this concordance has usefully existed for years now, supplemented by critical essays and other material, on a website that is freely accessible to all, is just one of those delightful things that you find in fandom all the time: an enormous effort shared for free with other fans out of goodwill and for the support of the overall community.  (Does SVA think he is the first person ever to pour hours, and recruit the work of volunteers, to compile such a work to supplement a beloved canon?  Tsk.) 

As a fan, I look at that free, ever-updated work, and can’t help but recoil when someone offers to provide it in print for a profit. 

One of the disingenuous statements related to the publication of the Lexicon was something about fans having clamored to SVA, desiring a print copy of the Lexicon—and somehow the $25 RDR volume was the only way to provide that?

Honestly.  Trying to sell that bill of goods to anyone in fandom who has ever dealt with (let alone been the editor/publisher of) print fanzines is a non-starter.  You want a print copy of the online Lexicon?  Very doable—not easily done, mind you, but doable.  And probably not likely to bring the wrath of JKR down on your head, if you do it the way fanzines have been done for the past 40+ years.  That is, you do the massive editorial work for free (just as fanzine editors have always done), and you sell the resultant work strictly at-cost for the printing/copying costs.  You keep meticulous records that you offer to show to anyone who wishes to see them in order to prove the at-cost nature of the publication.  And then you wait to see how many people out there want a printed, bound copy enough to shell out $50 for one.  (Perhaps; the economy of copying scale on fanzines is generally horrible.)

But you don’t publish it commercially; you don’t offer it for sale on Amazon; and you don’t slap a cover on it that is meant to make it look to the untrained eye like it is an official publication.  (Of course, being something printed and bound at Kinko’s, a fanzine doesn’t look very official anyway.)

I don’t know—perhaps if SVA had approached JKR describing the proposed book as a concordance, and arguing for the value of that type of work as a supplement to her canon, as well as for its non-competing nature with her proposed encyclopedia… Well, perhaps he would have swayed her.  I think that concordances *are* a legitimate scholarly effort; but no, they aren’t *transformative*.

Finally, just adding my voice—thank you, Cat, for your excellent response to Laura Kinsale regarding the important differences between “plagiarism” and what fanfiction does.  Certainly, fanfiction uses the intellectual property of others as a springboard—but *not* to plagiarize.  Plagiarists are regarded dimly by the fannish community.

Like others, I remain puzzled by those who express disdain for the exercise of fanfiction, without also (apparently) expressing disdain for the dozen and dozen of published works (modern and historical) that come about in much the same manner. 

Sure, there’s a lot of crap to be found in fanfic archives.  Certainly, fanfiction is not (usually) subjected to editing and other quality controls.  That doesn’t mean that some fanfic isn’t excellent, in terms of quality.  And that really isn’t the issue.  That has no relation to the fact that what’s usually being denigrated is the borrowing of worlds, characters, and situations created by someone else, and then constructing a new story using them.  I truly don’t understand how anyone could mistake that for plagiarism, or why, *by itself*, that is somehow deemed a lesser creative effort in the face of so many respected published works that do the same thing.

@ Sgaana, I don’t suppose it’s appropriate to say that I totally fangirl you right now?  You’ve managed to condense…12 wank reports, I think? into one very on-the-spot post.

What is NAT? (something tells me it’s a dumb question:D)

What is EITG? (something tells me it’s a dumb question:D)