Tuesday, September 9, 2008

I will be writing on fair use and copyright at Ruling Imagination

This blog (as explained in greater detail below in the right-hand column) constitutes an exploration of issues related to copyright and fair use in our contemporary digital culture. The blog began and continued through April 2008 as a class project in Peter Friedman’s Legal Analysis & Writing classes at Case Western Reserve University of Law during the spring 2008 semester.

Now, however, I will now be writing on fair use and copyright on my blog Ruling Imagination: Law and Creativity. On Ruling Imagination, I write about all the ways law affects creative endeavors and also about the way creativity informs legal practice. While that scope plainly is broader than the scope of this blog, it also plainly encompasses fair use issues. Also, as any regular reader of this blog will have realized, it is impossible to understand fair use and copyright without a much broader understanding of creativity than is often brought to bear on these areas.

I hope my regular readers will join me at Ruling Imagination. In the meantime, I will keep What is Fair Use? up. I hope its approximately 250 entries will continue to be a valuable resource to anyone concerned with copyright in our times. In addition, its first two months as a classroom project will, I hope, serve as a model and inspiration for teachers everywhere to engage their students with the material with which they are working.
Others seem to have thought the same thing.

Court rules Harry Potter Lexicon infringed J.K. Rowling's copyright

I've been vindicated. I wrote on April 14 that I thought J.K. Rowling's claim for copyright infringement against the author of a lexicon would prevail because the case seemed materially indistinguishable from Castle Rock Entertainment Group v. Carol Publishing, Inc., in which the 2d Circuit Court of Appeals held that the compilation of a trivia book basead on the characters and events of the Seinfeld television series did not constitute fair use.

Judge Robert P. Patterson Jr. of Federal District Court in Manhattan wrote in his 68-page ruling blocking publication of a Harry Potter Lexicon written by Steven Jan Vander Ark that “Plaintiffs have shown that the lexicon copies a sufficient quantity of the Harry Potter series to support a finding of substantial similarity between the Lexicon and Rowling’s novels.”

These cases turn in large part on how much of the original work is merely being repackaged. In Castle Rock, the defendant had created a trivia game based on the Seinfeld series. The court held in essence that she had merely repackaged the "facts" of the series in a different way. Similarly, the Harry Potter Lexicon was merely a repackaging of material from the Harry Potter books. Apparently, the entries copied verbatim substantial parts of the book.

In the parlance of the four-part test of fair use, the infringing works in these two cases were "derivative" works. The copyright holder has exclusive rights to the derivative markets for his or her works. It is not often easy, however, to determine what is a derivative work. One could argue that any work that appropriates material from a copyrighted work is "derivative" of the copyrighted work, but plainly the derivative markets over which a copyright holder has exclusive rights cannot include the market for any appropriating work.

These cases turn, then, on two principal issues: how much is copied and how much does the work constitute original, "transformative," work rather than mere repackaging of already existing work.
Thus, if one commenter to my April 14 post had been right -- that the Lexicon, as the defendants had claimed, had contained substantial amounts of commentary without substantial outright copying -- the Lexicon might have constituted fair use. As the decision now stands, however, the Lexicon seemed to be too much repackaged copying and too little independent work. Certainly, that is J.K. Rowling's view. She was quoted after the decision saying, "The proposed book took an enormous amount of my work and added virtually no original commentary of its own. ... Many books have been published which offer original insights into the world of Harry Potter. The Lexicon just is not one of them."