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