Oi!

[ivyblossom]

Well, this just makes me sad:

Rowling acknowledged she once bestowed an award on Vander Ark's Web site because, she said, she wanted to encourage a very enthusiastic fan.

But she said she "almost choked on my coffee" one morning when she realized Vander Ark had warned others not to copy portions of his Web site. She said she now has second thoughts about all the encouragement she has given to online discussions and Web sites devoted to her books.

"I never censored it or wanted to censor it," she said, adding that if she loses the lawsuit, she will conclude she essentially gave away her copyrights by encouraging the Web sites.

"Other authors will say, `I need to exercise more control. She was an idiot. She let it all go,'" Rowling said.

Comments

[annafugazzi.livejournal.com]

I dunno, I've been following this for a while and this is the first I've heard of tears. Before this it really looked like it was just a simple, "Please don't do this, I was happy when you were doing it as a fan, but you can't use somebody else's work and profit from it. Please stop." "No, really, please stop. I don't want to sue you." "No, really, stop now." "I said STOP."

This has been going on for a long time. SVA had plenty of time to get out of it, or change his work so that it wasn't violating copyright precedent. There's plenty of books out there that are based on/around/discuss Rowling's work, and she has no problem with any of them, because she's not planning on putting out anything similar to them. She's been talking about putting together an encyclopedia for a long, long time, she indicated that she felt SVA shouldn't try to publish one of his own a long, long time ago, and I really think SVA should've listened to the many lawyers who told him he wouldn't be able to do this legally. As a law student (not a lawyer yet, so I may be talking out of my hat here!) I was really, really bewildered to hear that any lawyer could've told him he had a right to do what he was doing. It flew in the face of everything I'd ever learned about copyright law in Introduction to Property. Mind you, again, I'm not even a lawyer yet, let alone a copyright lawyer, so i may be missing something.

And I agree, I don't much like how Rowling sounds like she's threatening to stop encouraging websites either. Unfortunately I don't think she's just blowing hot air on this one; other authors are saying that if this lawsuit decides that Rowling gave away her copyrights by encouraging websites, they will go the way of Anne Rice and Anne McCaffrey (I think) and Marion Zimmer Bradley (& her estate), to name just three biggies, and state up-front that they do not approve of fanfiction and will go after people who write it.

Sorry. Just my two bits on this.

[annafugazzi.livejournal.com]

I was really, really bewildered to hear that any lawyer could've told him he had a right to do what he was doing. It flew in the face of everything I'd ever learned about copyright law in Introduction to Property. Mind you, again, I'm not even a lawyer yet, let alone a copyright lawyer, so i may be missing something.
I should probably point out that what I learned was pretty basic, and boiled down to this:

Copyright = is the right to own noncorporeal things pertaining to intellectual property: names, distinctive marks, words, etc. It is the method by which people earn money for intellectual stuff. Rowling does not own the book you bought from Coles; you do. But she owns the words in that book. You can sell your physical book; you cannot sell the words to somebody else (ie, somebody writing a screenplay for a movie).

The reason for copyright is that it is the only way for somebody who works creatively to gain money from their work. If it didn't exist, JK would be penniless and Scholastic would be filthy rich.

Copyright is supposed to protect the integrity of the work (so nobody can "damage" it by selling it in a changed fashion, eg sell a book to a publishing company that has the exact same plots but names the characters Harry Potsmoker, Ron Welfarecase, and Hermione Grrrl, thereby making it sound stupid and making people have less respect for it) and to protect the creator's ability to make a profit from their work.

If you do either of the above ("damage" the work, or cut into the creator's profits), you are in trouble. You have violated copyright.

To get out of trouble, you can say that you didn't damage the original work (which, I don't care what Rowling says right now, I don't think SVA did - I've always thought the Lexicon was brilliant) and/or that your work won't cut into the profit-making ability of the creator.

So if you publish a book of essays re. Harry Potter, you can honestly say that you weren't competing with Rowling because she's never said she had plans to publish a book of essays. Or, in a real case I read for this class, a beauty company that wanted to trademark the name "Pink Panther Beauty Products" was sued by United Artists because they felt the beauty company would infringe on their copyright of the words "Pink Panther" but they lost because beauty products weren't something United Artists was going to put out there anyway, so the beauty company wasn't treading on their toes. And even in that case, the case didn't go completely in the beauty company's favour - they were warned against making any link to the movie Pink Panther, because that would infringe upon United Artists' rights.

http://library.findlaw.com/1998/Nov/1/129008.html

So yeah. With that info, I'm really at a loss to see how any ethical lawyer could've told SVA he was OK to do this. Again, maybe if I was a copyright lawyer I'd see it differently, but from what I understand, most of them agree with Rowling.

Now, whether the law is right or not is a totally different topic ;)

[ivyblossom.livejournal.com]

Copyright = is the right to own noncorporeal things pertaining to intellectual property: names, distinctive marks, words, etc.

You haven't defined copyright here. You defined trademark. If JKR had already published such a work, she might have a claim re: competition, but she has not; she wrote works of fiction, and this is clearly a companion/guidebook. She has permitted other guidebooks before. Just because she wants to write one doesn't give her the exclusive right to shut down others.

[annafugazzi.livejournal.com]

Copyright = is the right to own noncorporeal things pertaining to intellectual property: names, distinctive marks, words, etc.

You haven't defined copyright here. You defined trademark.
They're both intellectual property. Here's the definition from the US Copyright Office (http://www.copyright.gov/circs/circ1.html#wci)

What Is Copyright
Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords;
  
  
• To prepare derivative works based upon the work;
  
  
• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  
  
• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  
  
• To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
  
  
• In the case of sound recordings*, to perform the work publicly by means of a digital audio transmission.

If JKR had already published such a work, she might have a claim re: competition, but she has not; she wrote works of fiction, and this is clearly a companion/guidebook. She has permitted other guidebooks before. Just because she wants to write one doesn't give her the exclusive right to shut down others.
... she kinda does, I think, going by the above definition. Legally, in the US, at least. Whether she should have that right or not can be argued.

[ivyblossom.livejournal.com]

I guess it comes down to determining if this is legitimately a derivative work or not. I'm not sure that works about a work can really be considered derivative in that sense. It's not a play based on Chamber of Secrets or anything. It's not a rearranged version of the text, either. But you'll notice that the definition you pasted here is not the one you gave above.

[annafugazzi.livejournal.com]

I guess it comes down to determining if this is legitimately a derivative work or not. I'm not sure that works about a work can really be considered derivative in that sense.
Yeah, that's the sense I get too. And SVA may have a legitimate case that his work isn't derivative; I just don't think he does.

But you'll notice that the definition you pasted here is not the one you gave above.
::peering at them more closely::
Yeah, there's a few differences. The first one is a general interpretation of case law re. what the courts have to say about violating/not violating copyright. The second is the definition of what is copyright, which is what a judge looks at when they decide whether somebody has violated it or not.

[annafugazzi.livejournal.com]

Copyright = is the right to own noncorporeal things pertaining to intellectual property: names, distinctive marks, words, etc.

You haven't defined copyright here. You defined trademark.
They're both intellectual property.
And, sorry, I forgot to also say: you're right, names & distinctive marks are trademarks, not copyright. Intellectual property includes names, distinctive marks and words, plus scads of other things like procedures and programs.

[ivyblossom.livejournal.com]

Of course, if she wins, they won't have much to go on in order to "go after" people who write fanfiction, will there? If what you say is true, how do cliff's notes manage to avoid prosecution, do you think?

[annafugazzi.livejournal.com]

Of course, if she wins, they won't have much to go on in order to "go after" people who write fanfiction, will there?
Not sure what you mean by this. Who would go after them?

If what you say is true, how do cliff's notes manage to avoid prosecution, do you think?
Um... I wouldn't imagine that would be the same thing at all, because Cliff's Notes are going after a totally different market. The author is going for people who want to read a book; the Cliff's Notes are going for people who want to be able to learn stuff about a book.

I would imagine Cliff's might get into trouble if they tried to publish a book for an author whose work is still under copyright (Shakespeare's stuff isn't any more - anyone can use it) and who also was planning on putting together a Cliff's Notes-like work.

But I don't know any of that for sure. Good question :)

[ivyblossom.livejournal.com]

Like this one? (http://www.cliffsnotes.com/WileyCDA/LitNote/The-Handmaid-s-Tale.id-122.html) If authors have such exclusive rights under the law, how does this company exist? Does the law allow the author rights based on what market they're going for?

[kerri]

From what someone said in another entry over at praetorianguard, in the cases where the work isn't in the public domain, the books contain a note with the author's permission. Otherwise they wouldn't go ahead with a Cliff's Notes version.

[ivyblossom.livejournal.com]

Before this it really looked like it was just a simple, "Please don't do this, I was happy when you were doing it as a fan, but you can't use somebody else's work and profit from it. Please stop." "No, really, please stop. I don't want to sue you." "No, really, stop now." "I said STOP."

As we are not privy to the conversations between the lawyers and the participants, we don't really know whether the dialogue you've described above is exactly how it happened. Let's keep our assumptions in check.

[annafugazzi.livejournal.com]

...I was referring to the articles I've seen with excerpts from what Rowling's lawyers have sent SVA. He's quoted a few of them as well, to show why he felt they were in the wrong.

[ivyblossom.livejournal.com]

As in any public debate, there is publicly available information and there is non-publicly available information. I can't believe I'm saying this, but having witnessed enough fandom wank crap and some real life stuff where everyone bases some wrong assumptions based on what's public, I'd say...we probably don't know the whole story here.

[annafugazzi.livejournal.com]

I'd say...we probably don't know the whole story here.
LOL yeah, no argument from me there :) :)