Harry Potter and JK Rowling

What Ms Rowling is asking for may not be entirely legal or fair with reference to the RDR case; to my mind she’s really stretching copyright protection. That being said, I think that this case could go either way both on facts and on law.

I don’t see copyright as a moral right at all — I see it as a legal right which has some moral rights attached to it viz. those of integrity and paternity and, in this instance, neither of those moral rights appear to have been violated.

Somehow, I suspect that this case needs to be turned into an emotive issue for her to win: I’m pretty certain that that’s why she’s gone on the stand calling her books her children although, if I’m to be honest, I’d have to admit that my lack of sympathy could have something to do with the fact that I’m not a huge fan of extending copyright protection beyond a point or, for that matter, of Harry Potter.

The books somehow didn’t strike much of a chord with me; I identify with Harold Bloom’s description of reading Harry Potter:

“I went to the Yale University bookstore and bought and read a copy of “Harry Potter and the Sorcerer’s Stone.” I suffered a great deal in the process. The writing was dreadful; the book was terrible. As I read, I noticed that every time a character went for a walk, the author wrote instead that the character “stretched his legs.” I began marking on the back of an envelope every time that phrase was repeated. I stopped only after I had marked the envelope several dozen times. I was incredulous. Rowling’s mind is so governed by clichés and dead metaphors that she has no other style of writing.” [1]

Also, if it comes down to derivation, Ms Rowling’s books are pretty much a patchwork of older stories involving magic. As A.S. Byatt put it:

“Auden and Tolkien wrote about the skills of inventing “secondary worlds.” Ms. Rowling’s world is a secondary secondary world, made up of intelligently patchworked derivative motifs from all sorts of children’s literature — from the jolly hockey-sticks school story to Roald Dahl, from “Star Wars” to Diana Wynne Jones and Susan Cooper. Toni Morrison pointed out that clichés endure because they represent truths. Derivative narrative clichés work with children because they are comfortingly recognizable and immediately available to the child’s own power of fantasizing.
…
But in the case of the great children’s writers of the recent past, there was a compensating seriousness. There was — and is — a real sense of mystery, powerful forces, dangerous creatures in dark forests. Susan Cooper’s teenage wizard discovers his magic powers and discovers simultaneously that he is in a cosmic battle between good and evil forces. Every bush and cloud glitters with secret significance. Alan Garner peoples real landscapes with malign, inhuman elvish beings that hunt humans.
Reading writers like these, we feel we are being put back in touch with earlier parts of our culture, when supernatural and inhuman creatures — from whom we thought we learned our sense of good and evil — inhabited a world we did not feel we controlled. If we regress, we regress to a lost sense of significance we mourn for. Ursula K. Le Guin’s wizards inhabit an anthropologically coherent world where magic really does act as a force. Ms. Rowling’s magic wood has nothing in common with these lost worlds. It is small, and on the school grounds, and dangerous only because she says it is.” [2]

I’m unconvinced that Ms Rowling has the right she’s claimed or that less well known authors would benefit by her being able to ‘protect’ her work in this way.

Links:
[1] boston.com/news/globe/editorial_opinion/oped/articles/2003/09/24/dumbing_down_american_readers
[2] A.S. Byatt, ‘Harry Potter and the Childish Adult’, New York Times, 7 July 2003 (subscription needed) through ‘The Legal Soapbox’

Fair Use, Copyright and Rowling (Again)

Ms Rowling plans to testify in the case of Warner Bros. Entertainment and J. K. Rowling v. RDR Books where the author and Warner Bros. are trying to prevent a small publisher from publishing ‘The Harry Potter Lexicon‘.

The case hinges on fair use and where fair use becomes copyright infringement. Under the law, ‘in determining whether the use made of a work in any particular case is a fair use the factors to be considered include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.’

A few issues come to mind when one thinks of this:
1. Can content which accompanies some other work and which has been published online and endorsed by the copyright holder of that other work subsequently be accused of violating copyright simply because the author of the second work plans to publish it in a more traditional manner?
2. What is the relationship between an online work available to readers without charge and a book sold to readers both of which contain the same material?
3. Can a copyright holder actually stop the publication of a companion work considering that the copyright in the original work does not extend to preventing the publication of companion works? Can a copyright holder legitimately claim that their work has merely been repackaged? And can that claim be made after the work has already been endorsed by the copyright holder?

The New York Times [1] says that ‘though the case pits a billionaire author against a tiny publishing house, the Potter fan base seems to have little sympathy for RDR’ although in an earlier article, [2] it described Ms Rowling as a copyright hog. I find that surprising considering that most Harry Potter fan sites exist in part due to the right of fair use. And I’m not sure if such a work in which an author has put a substantial amount of effort into can infringe a copyright simply because it’s not a available at no cost to readers.

Links:
[1]
http://www.nytimes.com/2008/04/14/books/14potter.html?_r=1&ei=5090&en=960332b363f2f96c&ex=1365912000&partner=rssuserland&emc=rss&pagewanted=all&oref=slogin
[2] http://www.nytimes.com/2008/02/09/business/09nocera.html?_r=1&ref=business&pagewanted=all

Link: What is Fair Use?

Title 17 of the USC speaks of fair use as follows:

107. Limitations on exclusive rights:Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.In determining whether the use made of a work in any particular case is a fair use the factorsto be considered shall include —(1) the purpose and character of the use, including whether such use is of a commercial nature or isfor nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [4] 

Quoting entirely from a blog I just came across:

http://whatisfairuse.blogspot.com/

“In connection with Peter Friedman‘s Legal Analysis & Writing Course at Case Western Reserve University School of Law, the students are writing cross-motions for summary judgment in a fictional lawsuit brought by ASCAP and the owners of the copyright to “Que Sera, Sera (Whatever Will Be, Will Be).”

The Plaintiffs (represented by half of my students) allege infringement of their copyright in Que Sera, Sera by the KLF, the creators of a recording entitled “K Cera Cera.”

K Cera Cera (mp3) purports to be a recording of the Red Army Choir singing an amalgam of Que Sera, Sera and John Lennon and Yoko Ono’s Happy Xmas (the War is Over). The Defendants also include Arista Records, the U.S. distributor of K Cera Cera, and Arista’s corporate parent, Sony BMG. The second half of my students, of course, represents the Defendants.”

Fair Use, Copyright and Rowling

In an article which focusses on Warner Bros. Entertainment and J. K. Rowling v. RDR Books and refers to Ms. Rowling as a ‘copyright hog’, Joe Nocera speaks of how the author has been trying to extend the scope of copyright protection beyond the bounds which the law recognises.
He ends by saying:

“During my conversation with her representative, Mr. Blair, he pointed me to Ms. Rowling’s Web site, suggesting that would be the best place to find her response to the RDR Books case and the Harry Potter Lexicon. “You have our permission to quote from her Web site,” he said.
I already have that right, Mr. Blair. But thanks anyway.”

Link: http://www.nytimes.com/2008/02/09/business/09nocera.html?_r=1&ref=business&pagewanted=all

Scrabulous v. Scrabble

Scrabble-maker Hasbro has sent notices to Jayant and Rajat Agarwalla, Kolkata-based brothers, and Facebook for copyright violation of Scrabble.
  • Annoying? Yes.
  • Fair? Probably not.
  • Unforeseeable? Not in this day and age.
  • Legal? I don’t know. Is it copyright infringement, trademark violation or merely a fan’s tribute? …the method of playing the game cannot be copyrighted, patented or otherwise protected.

Scrabulous is apparently a trademark and it’s been reported that the brothers had allegedly written to Hasbro for permission although they received no response from the company. The point being is that if that’s true, they obviously weren’t oblivious to IP issues.What amazes me is that, nonetheless, neither the brothers nor Facebook seem to have anticipated the possibility of this happening and taken steps to protect themselves (although Facebook does have pretty comprehensive rules for third party developers).

Link: http://timesofindia.indiatimes.com/World/Scrabble-maker_sues_2_Indians_over_copyright/articleshow/2703503.cms