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clank-o-tron
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Got rich by embezzling Nazi gold  Founder
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As some of you may know, famed Harry Potter author J.K. Rowling is currently embroiled in a legal battle over a "Harry Potter Encyclopedia" written by a fan - Rowling feels that the work uncreatively capitalizes on her series and should be pulled from the shelves. The validity of her claims have been widely questioned, and recently legendary sci-fi author Orson Scott Card weighed in on the issue with some damning prose.
What are your thoughts on the issue? Do you feel her claims have merit? Is she truly a short-sighted villain, or is she just a simple housewife who is being coerced into a frivolous lawsuit by greedy, clever lawyers?
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2008-05-02 12:48:26 |
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"Children need to be taught from preschool that they might have to put a bullet between the eyes of their own undead mother." - Evans City, PA Police Chief Gino Fulci
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H
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Man, I feel like I've already been writing on here too much lately. You guys need to stop bringing up things I like to talk about...Disneyland, copyrights, statistics. Next thing I know someone will start a post extolling the virtues of cinnamon bears and Diet Coke and I will have to hire a detective to find out if you've secretly stolen my journal.
As a person who actually knows quite a lot about copyright law (I'm an Intellectual Property attorney), I'm not sure that the case is as frivolous as Orson claims.
I hate beat up "Uncle Orson" because he and I went to the same college and claim the same religion, but the gist of his argument seems rather hypocritical to me. He starts the article claiming that Rowling stole the main plot of his book, using a broad description of the plot line. This is particularly interesting to me because Card apparently believes he is the first to dream up the scenario when a young person with a traumatic youth is somehow given magical powers that he or she must master with the help of their friends to overcome some manifestation of evil that threatens the entire existence of humanity.
Oh. I see. Apparently Card has never read anything by Tolkien, C.S. Lewis, or Roald Dahl for that matter. Suspicious, considering that Lewis and Tolkien are generally considered to be the fathers of modern fantasy literature. The entire genre is borne from a similar thread - little people/underdogs banning together in a fantastical setting to overcome the forces of evil. Legally, such general, widely used plotlines are called "scenes a faire" and are considered well in the public domain.
So yeah, pretty much I think Card's assertion that she ripped him of is a steaming pile of crap. Particularly because he says he "admitted" to any borrowing he did from others because he fessed up to stealing someone else's imaginary word. Beautiful. There's a legal difference between using a general plotline and adapting it to a new and different setting with some new twists and turns (see "West Side Story" and every generic chick flick ever made) and "borrowing" the actual names, terminology, and events, along with a storyline and trying to make a buck off of it. Particularly, if the rearrangement goes far enough to constitute a retelling or derivative work of the original story.
So THAT is what Card should be debating about - is this "encyclopedia" enough of a retelling of the original or some sort of derivative work that Rowling could/would put together herself and make money from (which by the way, actually IS a factor in the legal test, whether or not Card feels it should be), not whether or not he thinks that Rowling has earned enough filthy lucre from her stories.
Card mentions that the encyclopedia is clearly a "scholarly work" that constitutes fair use, but I really don't think he has any idea what the actual law is.
If you ask me, he sounds petty and jealous of Rowling's financial success, and as for his prediction that she'll lose and have to pay his legal fees, I think he's dead wrong. She may very well lose, but it will be a close call, which will probably be appealled unless they reach a settlement first. At any rate, she won't end up paying his attorney's fees.
Here's a link to the WSJ's take on the case. They're saying it's too close to call.
My guess is that she'll win, although I'm hoping she doesn't. I tend to think that copyright protection is ridiculously broad here in the states.
Now, whether she should have sued is a separate issue, of course, and there I think Card, as an author with a large and similar fan base, has more insight than I do. I think it is foolish of her, yes. But I'm not sure it's wrong. Rowling has been pretty clear from the beginning that one of the reasons that she considered killing Harry off at the end was because she was concerned about potential off-shoots, spin-offs, and never-ending fan fiction, and wanted to limit it as much as possible.
Frankly, I don't blame her. I've been to the comic book conventions and have personally seen what overzealous fantasy fans are capable of. A few of the people there could use some boundaries - I'm looking at you art dealer with the soft-porned up Star Trek drawing. |
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2008-05-02 18:59:08 |
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odmom
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((modified by odmom@2008-05-06 10:21:58)) |
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2008-05-03 01:30:35 |
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odmom
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quote from U.S.Copyright
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 prepare derivative works based upon the work; |
would this not be a derivative work?
quote from U.S.Copyright
§ 107. Limitations on exclusive rights: Fair use40
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 factors to be considered shall 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.
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. |
It would seem that the purpose or use is not for non profit or educational purposes but rather for commercial purposes which I think would be a point on the author's side. I also imagine that substantial portions of the text were used in the lexicon. The article that crank-o-tron linked to seemed to be basing his argument on the last point whether the effect of the use would hve a negative effect on the value of the original work. It will be interesting to see what becomes of this. |
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2008-05-03 02:01:44 |
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clank-o-tron
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Got rich by embezzling Nazi gold Founder
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quote from H
Oh. I see. Apparently Card has never read anything by Tolkien, C.S. Lewis, or Roald Dahl for that matter. Suspicious, considering that Lewis and Tolkien are generally considered to be the fathers of modern fantasy literature. The entire genre is borne from a similar thread - little people/underdogs banning together in a fantastical setting to overcome the forces of evil. Legally, such general, widely used plotlines are called "scenes a faire" and are considered well in the public domain. |
That's Card's point. I don't seriously think he was claiming she stole his idea, just that originality is dead. I do think he was off base on the ownership of the details, though - that's the hard part to make interesting, and she's (from what I hear) crafted an interesting world.
Honestly, though? This could be some really bad publicity. |
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2008-05-05 17:57:16 |
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"Children need to be taught from preschool that they might have to put a bullet between the eyes of their own undead mother." - Evans City, PA Police Chief Gino Fulci
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H
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I don't think J.K.'s fans will really care. From their viewpoint, her blocking other people from writing derivative works might compel or at least create an incentive for her to write them herself (she's done it before), and frankly, I think nothing would make her minions happier.
Rowling has been pretty good to her fans in the past, giving them a really wide berth in their online activity - she could have claimed a whole bunch of the domain names of the most popular Potter discussion forums under current trademark law and hasn't. In fact, when her publisher tried, she came out in at least one forum's defense. She gives exclusive interviews to the fan sites and whatnot - she never interfered with the encyclopedia when it was solely in electronic form on a website - I think she's just drawing a line in the sand where it comes to the printed medium.
To support my theory that the fans won't care, I give you the polls from the two most popular fan sites, "The Leaky Cauldron" and "Mugglenet" which both are covering the case. As of today, over 70% of the voters on both sites think Rowling should win. |
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2008-05-05 18:27:15 |
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clank-o-tron
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Got rich by embezzling Nazi gold Founder
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I wonder if the online versions of these encyclopedias are generating advertising (or as she would say, advertizing) revenue. Usually people are fine with scholarly derivative works as long as no profit is involved, which is why other similar works (on different subjects) are often tolerated on the web but rapidly quashed when a physical copy is attempted. I wonder if an ad-supported but free to access encyclopedia would suffer the same fate? |
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2008-05-05 20:31:30 |
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"Children need to be taught from preschool that they might have to put a bullet between the eyes of their own undead mother." - Evans City, PA Police Chief Gino Fulci
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Somnium
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 Finally has a custom title
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I'm just wondering about all of the other books made to leech off of the popularity of the series. Were they all approved by the publisher? It seems unlikely, but as far as I know they weren't sued. I'm talking about wastes of paper such as "The philosophy of Harry Potter" or the books speculating on what would happing in the last book. Ugh. I feel sick just typing that.
quote from odmom
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Heh. |
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2008-05-06 15:50:21 |
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-- The Carico sales guy, trying to sell us china and cookware
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clank-o-tron
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Got rich by embezzling Nazi gold Founder
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Thanks for the update, H.
After reading more about the case, I'm now curious exactly how derivative the work was. I suppose we'll never know for sure, but her lawyer made it out to be a 'rearrangement' of JK's works.
Also, events like this are the reason that I try not to like things too much. |
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2008-09-09 03:44:46 |
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"Children need to be taught from preschool that they might have to put a bullet between the eyes of their own undead mother." - Evans City, PA Police Chief Gino Fulci
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Ramus
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Recovering Religious Zealot posts: 2233
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quote from clank-o-tron
Also, events like this are the reason that I try not to like things too much. |
Just... like... Star Wars.
Damn George Lucas. |
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2008-09-25 11:21:09 |
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We just wanted to deal with that issue... just a couple of point... just changing the attitude towards AIDS from being "Ew... AIDSY." to more like "Ah... Fun monkey disease."
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