All the evidence has been given in the J K Rowling court case but the trial potters on as the judge deliberates.
J K Rowling is upset because someone has put together an unoffical book about her work. She doesn’t want anyone else to make money out of what she’s done. Why is it always the multi-millionaires who get upset about someone else making money?
The fact is she seems not to know about the rich tradition of fan writing in science fiction and fantasy. Books like this won’t stop one single Harry Potter book – or official book about Harry Potter – being sold. If anything they increase sales of other references. If you’re a fan, you buy whatever comes out.
Worse still, her attitude seems to say that it’s not acceptable to write anything about other people’s work. That’s just crazy.
Excuse me if I’ve mentioned this before, but it really gets up my nose.
Apparently she thinks it will clear the way for ‘countless rip-offs of her books.’ Sorry, this is rubbish. A book about another book (or a TV show, or a scientific breakthrough) is not a rip-off it’s a tribute. She’ll be saying it’s not acceptable to write biographies next.
We are told in the hagiographies of Rowling of how the poor single mother scrawled her first work in a railway station buffet, hoping to earn a crust. But perish the thought anyone else should…
I am afraid I have to disagree with you on this one, Brian.
JK Rowling has not attempted to stop any of the (many) “unofficial” Harry Potter books that have been published between 1991 and now. These books range from serious fandom to jokes (Barry Trotter…. etc) to quizzes, collections of letters and predictions of future books. She has also encouraged the numerous websites that have grown up around her characters/books—eg she highlights one of them a month on her own website with a trophy, and invited the proprioters of Mugglenet and Leaky Cauldron to interview her at the launch of one of her books (and no other media;-) )—she often gives interviews, podcasts etc to these sites which helps them along.
So I think one has to ask why has she decided to take action in this particular case? And if you look into it, you will see why. JKR has said repeatedly over the years that when she has finished the last HP book, she will not write another installment but she might well write an encyclopaedia or lexicon filling in unexplained details. (Possibly based on the Bloomsbury subs’ style guide/bible that has evolved with the books and is now, I’m informed, huge.)
Now, someone has come along and is doing exactly the same thing (or trying to)— create a lexicon – so JKR’s action is to protect her own right to do so. I also note that the “lexicon” she’s taking action against has been said to be plagiarism, ie repeating chunks of text from the HP books wholesale, rather than being a commentary on them.
My sympathy is entirely with JK Rowling on this occasion,not least because in the past she has so embraced and encouraged “unofficial” writings about her books.
I agree with Maxine whole-heartedly. Rowling has been really receptive to the world of all things Potter that has bloomed around the books. The reference book that is being published does not add anything to her work, nor interpret or enrich it. It simply rips it off. Interpretations, extensions, extrapolations are all fine when based off someone else’s work. When that work is simply mined for content… that’s plagiarism.
Well, folks, you’re all wrong. Whereas it is true that Rowling has encouraged in fan fiction, and even participated in it, she cannot simply sue someone for doing something that she had only intended to do at some undefined time in the future – if that is the basis of her action. There is no copyright on ideas. I recently met Steve Van Der Ark of the Harry Potter Lexicon at a Tolkien Society dinner (he was the guest of the TS treasurer, who is a keen Harry Potter fanfic writer) and it seems as though the case is not so much about plagiarism of an idea, but fair use of chunks of Harry Potter. As far as I can make out, Rowling had no objection to the Harry Potter lexicon on the web – what is at issue is its publication as a book. The case, as they say, continues.
I wouldn’t assume it’s necessarily about money. Writing is bloody hard work, and I think writers have a right to mine their hard-won creative universe however they see fit, and to be upset if someone else threatens to do so—especially in this case, as JKR says the web stuff he’s put up thus far is incomplete and in some cases, inaccurate. He doesn’t have access to her vast Potter back-story (which apparently is highly complex and fills volumes), so some of his interpretations are bound to be misleading.
If that man really respected her work he’d understand her reasons for being protective about it.
George Lucas, they say, is just as controlling about the Star Wars universe and nomenclature, and nobody’s calling him selfish. Then again, he’s a man and has a right to be assertive without being called names normally reserved exclusively for tough, proactive women who won’t roll over.
If that man really respected her work he’d understand her reasons for being protective about it.
But he does, that’s the thing. Maybe he’s naive, but he’s totally in love with the Harry Potter canon, as only a fan can be, and has put in a massive amount of work himself. That’s why he’s rather cut up that she’s been so aggressive on this occasion.
He may “say” he respects her work, but that isn’t the same as actually respecting it.
Jenny—I think your George Lucas analogy is spot-on.
No, I think the George Lucas analogy is irrelevant. It’s not about gender so much as consistency. Lucas has always been very clear about the rights to his ‘Star Wars’ universe from day one. Rowling, on the other hand, has been ambiguous. She has acquiesced to (and even encouraged) a great deal of Harry-Potter-related derivative work on the internet (and might even have taken part in itr herself, under pseudonyms, so my source tells me). Steve Van Der Ark believes (as I understand it) that she encouraged (or, at least, she did not object to ) his now highly elaborate Harry Potter Lexicon online. Now, from this, one could argue from this that she might have given at least Tacit permission for Steve to go right ahead and publish a version of the Lexicon in print, given that the content would be the same, the difference being only one of medium. Now, it’s possible to say that Steve’s publishers shouldn’t have done such a thing without seeking formal permission (that would certainly be what I’d have done), but given Rowling’s earlier acquiescence, the case is there.
Then there is the business to her rights to her own Universe, and her desire that she might produce a lexicon of her own in the future. The second point – her desire – is neither here nor there. One might make a case for the first.
However, I think the main thrust of the argument revolves around ‘fair use’ of text taken from the books. Steve uses whole scads of this – perhaps enough to have gotten him into trouble. But if he’s used it on the web for years without trouble, what’s so different about print?
Not unsurprisingly, I’m with Henry.
At risk of facing Star Trek II: The Wrath of Jen (oh no, am I going to be sued by Paramount?) – gender isn’t what it’s about. I was talking about the SF/fantasy book tradition – movies have always been different because of the way the studios operate. It’s nothing to do with whether the author is male or female.
Fair usage is a difficult one legally, but morally I think it’s quite simple. If you quote bits of a book to comment on them etc. that’s fine. You aren’t taking away any sales from the author. If you quote (say) a whole poem, that’s not fine. They can’t sell the poem any more.
Sorry for being so mercenary, but as someone who makes a living from writing, that’s really what it’s about – not precious art.
I come back to the biography bit. If you take this attitude, you also should say no one should write a biography. The alternative is to suggest that someone’s scribblings are more important than the person, which sounds strange to me.
Don’t worry – I’m not the wrathful type. :-)
My gender comment was restricted solely to the reactions of others, not to the behavior of the artists in question, which I still think is very similar.
Perhaps it’s all in the eye of the beholder? Try this one:
“If you quote (say) a whole
poemencyclopedia of one author’s universe, that’s not fine. They can’t sellthe poemtheir own encyclopedia any more.”But that’s not how it works with SF fandom. When I was into that kind of thing I would have half a dozen different reference works on the same author or book series or whatever. And taking extracts and commenting on a work of fiction isn’t copying it whole, so you can read it as the original book – which is the point about a poem. (Or an article.) (Or a blog entry?)
One other thought occurs to me. Is there a correlation between those speaking out against JKR and those who are authors? (Apologies Jennifer, Anna and Maxine if you are!)
I think Brian is right. People into SF fandom tend to be fairly free about usage. Personally, I don’t think Rowling has much of a case, given her previous ambivalence/encouragement of fan activities. But Van Der Ark’s publishers really should have checked out the situation, if they hadn’t already. When I was writing The Science of Middle-earth, my publisher advised that I shouldn’t quote a single line of Tolkien, for fear of
being invaded by Orcsgetting in a wrangle with the Tolkien Estate, which can take quite a long time to approve use of quotations, or, worse, might not approve of my unofficial work and so oppose it, even if I could make a case for fair use.Rowling’s case (if indeed that is her case) that Van Der Ark’s encyclopaedia prejudices one she might write in the future doesn’t hold water for two reasons. One is that to which I alluded above – she hasn’t done one yet. The second is one which Brian touches on – fandom uses lots of reference works. It’s not a zero-sum game, and I’d bet that every Harry Potter fan will buy an encyclopaedia by Rowling even if they already have one by Van Der Ark.
I’m an author, so that doesn’t work.
But I think the gender breakdown of opinion is interesting.
I’m an author too, and I think Rowling doesn’t have a case. To throw in gender politics is, to be charitable, extremely unhelpful (and not at all interesting). The most vehement opposition to Rowling is one I heard in private, from a person who had been in court, and said that Rowling was being unreasonable to the point of being unhinged. The person who expressed that opinion, not that it matters a damn, is female. Let’s keep the estrogenous politics out of this, shall we?
I’m not an author but I’m conflicted over this (and I’m not going to speculate about what that says about my gender)
My understanding was that this specific case revolved around the fact that the lexicon was predominantly made up of direct quotations, and therefore well and truly beyond the realms of fair use. Clear cut to me. However, Henry’s point about media is well made. If there was implicit acceptance of it in one form then it is hard to make a moral case against objecting to it in a new form. The legal case here is that this specific (alleged) infringement does have the potential to create monetary damages whereas the web version did not I suppose. I would guess this is why Rowling’s intention to publish a lexicon is important. But I can’t see a moral or legal right to creating a work in the future being supportable. A work must subsist for it to qualify as a copyright work. The slight wrinkle here is that said work, as Maxine suggested possibly does exist in the style manual.
But one other thing comes to mind. What if the non-official lexicon is ‘wrong’ in some specific details. Is there a right of redress there? Misrepresentation? Libel against a fictional character?
The wrinkle with the style manual is not a wrinkle at all because it’s not published. Unless the style manual has been filed with a solicitor who can vouch for a time and date when it was filed, then its existence hardly matters. Look at it this way – in the worldd of science, groups X and Y might be on to the same gene, and both groups will have voluminous notes. If Y publishes before X (and assuming the groups have been entirely independent), then it doesn’t matter if group X’s notes go back a year further than Y’s – publication is what matters. You can’t copyright an idea: it’s the publication that matters.
What if the non-official lexicon is ‘wrong’ in some specific details. Is there a right of redress there? Misrepresentation? Libel against a fictional character?
The obvious solution is for Rowling to adopt Vander Ark’s Lexicon as ‘official’, in which case she can exercise some editorial control and take a share of the profits. In the end it all comes down to money – and saving face.
@ Jennifer – I’m an author, so that doesn’t work.
Jennifer – being nosy, just took a quick look at Amazon and couldn’t spot your book(s) except possibly as editor of this – is that one of yours under another name? Are there others? If so, anything for the general reader? Always interested in reading books by people I’ve come in contact with!
Actually I think this might be a case where non-publication (in the traditional sense) wouldn’t be such a problem. Copyright exists as soon as the work subsists. The issue is proving the date on which a work came into existence. Here there is probably a substantial amount of verifiably date stamped, written, and signed off, material relating to the work going back some time. The case was brought in the US so the exemption allowing admission of hearsay probably also applies (i.e. a paper trail is admissable even if there isn’t a single ‘smoking gun’ document).
It has some similarities to a patent case in that respect in which case, as long as the record keeping is up to standard (which is what in practice the case would turn in), the voluminous notes in your example would stand up in court.
Has anyone actually summarised what the actual legal arguements are anywhere? All I could find were vague news stories and rants on fan sites.
But I agree with you obviously on the copyrighting of an idea, let alone copyrighting it on the basis that you might get around to writing something about it one day.
I still like the idea of one of the characters suing for libel though…
Jen- No one ever said Lucas was being selfish? You haven’t been listening.
I have written four novels, numerous short stories, and one reference book in the shared universes owned by Wizards of the Coast. Yes, this is Dungeons and Dragons. (Roll for initiative.) My novels and short fiction are in the Dragonlance world. My reference book is the Forgotten Realms.
Wizards of the Coast claims all rights to any work created in any of their universes, even work not specifically commissioned by them. So if I were to write an unofficial Dragonlance novel, get it published, and start selling it, although the work would be an original work of my own creation, because it is set in the Dragonlance world and references places and events of that world, Wizards of the Coast could and would stop publication of that work, unless it were a bestseller, in which case they would merely demand all profit from the work, plus damages. And it is my understanding that they have won numerous court cases doing this very thing, including one against the original creator of Dungeons and Dragons, the late lamented Gary Gygax, after he left the company and tried to start a new game that was considered, by the courts, too similar to the original Dungeons and Dragons, which he created, but no longer owned. WotC (then TSR) took the new game from him and never published it.
So even though Henry is right, in that Rowling encouraged online fan-generated content for the world of Harry Potter, she never specifically surrendered her right to control any part of it and could have, legally, taken any part of it away from the creators at any time she wanted, used it in one of her books, and never paid them a penny. Of course, she would have destroyed her own reputation in the process. Which is what she is in danger of doing now. She should just hire him as an editorial assistant and put him to work on her “official” book. My guess is that he’d jump at the chance, even if it meant starting over from scratch.
Errata: My reference book is part of the Forgotten Realms, not the whole thing.
Further thought: I’m not saying I believe Wizards of the Coast or Rowling or George Lucas should be able to exert that much power, only that it happens. Rowling’s case may seem weak, but the courts in America tend to rule in favor of total corporate ownership of intellectual property. Henry is correct that her previous support of unofficial online content does weaken her case.
Jeff raises lots of interesting points, as only someone who’s been close to fan-related literature can be. The most interesting, to me, is the one about reputation.
Reputation, or goodwill, takes ages to acquire but can be lost in a moment. Rowling has spent years cultivating the goodwill of fandom, but because of this single case, it’s unravelling fast. Worse, because people in fandom can be fast friends – but deadly enemies if they feel that the object of their affection has betrayed them in some way.
My question, then, is why Rowling has chosen to take such action now? My courtroom source thinks that Rowling’s mood has changed, and puts it down to the fact that now the Harry Potter series is over, she’s fed up at not being in the spotlight any more. I have no clue as to whether this is right or wrong – but my source, an ardent Harry Potter fan, said it with a tone of disdain and dismissal.
PS: Two of my chickens are called Hermione and Luna, obvious
blatant rip-offsrespectful hommages to the Harry Potter canon. Do you think Rowling will sue me? Will the fact that both chickens are female influence peoples’ perception of the case?I’m not an author.
I don’t respect or have any time for people to try (and do) cash in on other people’s creative work against that person’s (the author’s) wishes.
I don’t know anything about the legalities or SF fandom or the other matters you are talking about here. But I have enormous respect for J K Rowling, for many reasons, and none for this person she’s suing, who lacks originality if nothing else.
Henry I think maybe your source is bitter. I also believe that were it just Rowling, she might have done things differently, but we’re talking about corporate properties now, and corporate lawyers are notoriously aggressive about defending any incursion, real or perceived, upon the IP of their employers. Making mountains out of IP molehills is what keeps them employed and earns their bonuses and employs their assistants, after all.
So while the books were still being written, Marketing was king: engage the fans, encourage community, drive sales, etc. Now that all the books are finished, Marketing has stepped aside and IP is firmly in control: protect the value and identity, kick out the squatters who lower property values, etc. My guess, and it’s only a guess, is that Rowling is getting good financial advice/poor moral advice from people only interested in their own profits, not hers. She’s made herself a fair tidy sum, to be sure, but she’s made a lot of other people considerbly wealthy as well. We don’t often hear laments about the corporations cashing in on people’s creative work, yet that is exactly what they do – in publishing, in cinema, in music, in nearly every commercial creative endeavor. Some industries are more insidious than others, but in most, the artists only receive small percentage of the profits on their work, if they receive any percentage at all. And they often have to fight just to get what’s owed them under the terms of their contracts.
Well, print is dead anyway, so I don’t know why we’re arguing. One day technology will drive current models of print publishing and distribution out of business entirely and the very idea of copyright will have to be rewritten. Those of us trying to make a living from our stories are the flint-nappers of the emerging Information Age.
D’oh! Why can’t we edit?
knappers
I did not mean to suggest that fiction authors are people who doze-off in the middle of the day in ancient flint quaries. We leave that for the archaelogists.
Double D’oh! I did it again. Never mind.
@Jeff – don’t worry, we know what you mean.
@Maxine – I don’t respect or have any time for people to try (and do) cash in on other people’s creative work against that person’s (the author’s) wishes.
So that would include me, and The Science of Middle-earth, wouldn’t it? That was done without asking either the author or his representatives.
/me opens the popcorn.
/me passes the bag around.
Your author was dead, at least, Henry.
And I would argue that “the science of….” series (three of which I have read, including yours) adds something to what was written in the sense of being a commentary on it, rather than simply repeating chunks of it without a synthesis of the writer’s own.
Send it over here, Richard.
(crunchings and munchings)
I’m kind of with Maxine and Jeff on this one. Knowingly against the author’s wishes is key for me. On Ark’s website they write: “The Lexicon holds J.K. Rowling and her fans in the highest regard. Her respect is of the utmost importance to us, as is the trust of our readers. We will do everything in our power to earn and keep that respect.” (This was in 2005)
This doesn’t seem to be “everything in our power”. Ark’s work (and that of his collaborators) is fine as an elaborate website. It’s the idea of printing a book that has set off this ugly IP war, taking money away not particularly from Rowling but from WB, and apparently it’s gotten out of hand for both Ark and Rowling. I’m sure each would love to roll back the clock.
The suit also quotes a statement made by Steve Vander Ark on his site, that says, ”...I don’t give permission for people to just copy my work for their own use. Not only is that illegal, since everything in the Lexicon is copyrighted, it’s also just plain wrong. Hey, I did all the work, I put in all the time, it’s my skill and talent in this area which allowed the Lexicon to come into being. No one else has the right to use my work.” The suit says, “this is exactly what Defendant is attempting to do here in connection with Ms. Rowling’s work.”
Much as I dislike being associated with the big guy against the little guy, I’m really not convinced by unauthorized derivative works, unless the author is dead and can’t care anymore, or there are very many authors around, like for Dr. Who. (Don’t care much about descendants, to be honest. Let them write their own work. I am rather appalled by Douglas Gresham.) So Henry, you’re off my hook.
Tolkien may be dead, but the Tolkien Estate is very much alive, and any author tip-toeing around the canon must beware of stepping on literary landmines. There are all kinds of fan-oriented derivative works around. The Science of Middle-earth is one, but is more of a separate critical work than a reader’s companion or encyclopaedia. One might say that Vander Ark’s lexicon, being just such a thing, is entirely derivative (I haven’t read it, so I don’t know) but this doesn’t mean that it can’t be useful. Robert Foster’s Complete Guide to Middle-earth was useful to Christopher Tolkien in the augean task of editing his father’s works for posthumous publication, for example – Christopher tolkien said as much. Now, Vander Ark’s work wouldn’t be useful to me, because, as much as I enjoyed the Harry Potter stories, I do not consider myself a ‘fan’ – the kind of fan who goes to conventions in costume and writes fan-fiction, for example. My source, who does such things, was indeed bitter – she lives half her life in the Harry Potter Universe and still thinks Rowling is wrong to pursue Vander Ark, whatever the rest of us might think.
[crunch crunch crunch]
Are you saying, Henry, that the merits of the case depend on whether the derived work is useful?
Certainly not!!
Um, good?
It doesn’t matter if the work is useful or good, as you well know. As I understand it the case revolves around fair use. My impression is that Mr Noah’s Ark has used more than is wise, but that Ms Rowling’s moral case against him is weakened by her earlier encouragement of derivative works. And where di all that popcorn come from?
Copyright should protect a work beyond the author’s death, if for no other reason than to keep people from whacking successful authors so their work can be used without having to worry about copyright. But current copyright protections in this country are completely unreasonable and have nothing to do with protecting the work of the author and everything to do with perpetual ownership the IP of the corporate owners of that work (coughDisneycough).
Heather has nailed it though. The work was fine as an elaborate but free website which provided plenty of free marketing for the Harry Potter books. The difference between the website and the book is not print or electronic, it’s the money. If he had ever tried to make the website available only by subscription, he’d have received a cease-and-desist letter right away. I think Rowling and Warner Brothers’ argument will be that she always supported free derivative works, never derivative works in which the reader/viewer was charged a fee or subscription. That’s really all they have to prove, and I believe they’ve proved that well enough to win the case.
Like I said before, this could have been handled better, but then again maybe they didn’t want to set a precedent and turn themselves into the Obsessed Harry Potter Fan Employment Agency.
Jeff, you write: “I think Rowling and Warner Brothers’ argument will be that she always supported free derivative works, never derivative works in which the reader/viewer was charged a fee or subscription.”
But as I wrote in my first comment to Brian’s post, there have been many “unoffical” books about Harry Potter, I know, I own some of them, and I’ve seen plenty of others. J K R has not stepped in there.
My comments above re J K R herself wishing to write something along these lines remain my opinion on the matter – because this is something she has often written and said that she’ll do, over the 10 years since the first HP book was written.
Maxine, you are correct. It is the competitive part of the equation that has dragged this thing into court.
So in that regard, Henry is correct in that you can’t defend the right to future production. There is no copyright to defend until it is actually written. So she might be able to get him on abuse of fair use, but not on the book itself.
Jeff, I don’t pretend to know anything about legal matters. I’m just a great admirer of J K Rowling and wish her well – never ill.
Neither do I. She’s given me many hours of great reading.
I don’t wish her ill, either. But it is the function of friends to tell those whom they respect, without fear, when they think they’re acting foolishly or against their own interests.
As the one who started this (I have to admit because I was disappointed not at not being one of the ‘most active blogs’ and thinking this might raise a touch of argument), I also must emphasize I have nothing against JKR.
I have bought and read all her books, seen the movies and almost bought the T-shirt. But I can like her books (I can’t really say I like her, as I’ve never met her, but it wouldn’t surprise me if I did) and still not like what’s being done, I suspect largely at the behest of Warner Bros – and sadly she, if anyone, could have stood up to the movie money machine, but instead has weighed in against the little guys.
So I take your point, Maxine. I don’t wish her ill – just this court case.
Brian, re: “Jennifer – being nosy, just took a quick look at Amazon and couldn’t spot your book(s) except possibly as editor of this – is that one of yours under another name? Are there others? If so, anything for the general reader? Always interested in reading books by people I’ve come in contact with!”
Book deal just secured, contract under negotiation. When I’m free to do so, I’ll shout from the rooftops. For now, just to say it’s a lab lit novel about some dodgy dealings and a touch of romance nd adventure in a modern-day London cancer research institute.
Ooh, congratulations, Jennifer. I do so much look forward to hearing more about it, and of course, once it is published, reading it. Very well done!
You kept that one quiet Jenny. Not sure I’d have been able to stop exploding with delight, had it been me.
Did “Bored of the Rings” have legal problems with the Tolkien Estate?
Not sure I’d have been able to stop exploding with delight, had it been me.
which would have been unpleasant for all concerned.
Well done Jenny. Great news. Let us know when it’s out and I’ll sell one of the children so I can afford a copy.
Thanks, all! I’ll blog it when it’s allowed.
Not sure I’d have been able to stop exploding with delight, had it been me which would have been unpleasant for all concerned.
Fortunately for all, the chances of my fiction ever being published are slim.
Did “Bored of the Rings” have legal problems with the Tolkien Estate?
Not sure – the rules might be different for something that’s obviously a satire, as it can’t be said to be ‘passing off’ someone else’s work as its own.
Strictly, though, I expect the answer is ‘no’. Bored of the Rings was published in 1969, when Tolkien was still alive. The Sage didn’t die until 1972, which means that the Tolkien Estate as an entity could not have existed before then.
In the US, the Supreme Court has affirmed the right of parody and satire under Fair Use. I think one of the test cases was Weird Al Yancovich’s spoof ‘Eat It’. For those of you of a certain age, this will no doubt inspire pleasant memories of school discos of yore…
Henry: never get up. I got about twelve rejections before this. And I believe JK garnered quite a few more. Your fiction is great.
Jen – that sounds brilliant – many congratulations, and waiting with bated breath. (Not sure what bated breath is, but it seems de rigeur to wait with it.)
Aw, shucks, Jen. Would you be my agent?
One of my blog friends (is that the correct term?) just wrote a good post about agents, publishing your novel, etc. It’s here if you are interested.