Many interesting links related to all things publishing. First, NEW RULE: Don’t write fiction and call it a memoir. For further explanation as to why this is Bad Idea Jeans, consult James Frey. In the age of the internet, you can’t get away with it.
Second, giving the book away for free for a few days hasn’t hurt sales after the giveaway ended. According to the Publisher’s Weekly top lists this week, Suze Orman’s book Women & Money: Owning the Power to Control Your Destiny is the #2 bestseller in the nonfiction/general category.
And lastly: a lawsuit that may define the limits of what fans can do with a written work under copyright: J.K. Rowling is suing the owner of the Harry Potter Lexicon because he intends to publish his work as a book encyclopedia of the Potter series.
a fan-created collection of essays and encyclopedic material on the Potter universe, including lists of spells and potions found in the books, a catalog of magical creatures and a who’s who in the wizarding world.
Rowling said she was especially irked that the site’s owner and the lexicon’s would-be publisher, RDR Books, continued to insist that her acceptance of free, fan-based Web sites justified the efforts.
“I am deeply troubled by the portrayal of my efforts to protect and preserve the copyrights I have been granted in the Harry Potter books,” she wrote in court papers filed Wednesday in a lawsuit she brought against the small Muskegon, Mich., publisher.
She said she intends to publish her own definitive Harry Potter encyclopedia.
I’m cynical enough to suspect that the last statement may be driving her suit more than the defense of her copyright, since she has often cited the HP Lexicon as a fan site she has enjoyed in the past. Aside from the mention in that AP article, I know I’ve read interviews wherein she’s mentioned it favorably (though of course I’m having trouble finding them now for linkage purposes).
Rowling acknowledges that her suit could change the landscape of how fans interact with authors and with their written work:
“If RDR’s position is accepted, it will undoubtedly have a significant, negative impact on the freedoms enjoyed by genuine fans on the Internet,” she said. “Authors everywhere will be forced to protect their creations much more rigorously, which could mean denying well-meaning fans permission to pursue legitimate creative activities.”
Interesting, her choice to define the Lexicon publication as not a legitimate creative activity, when I can think of several compendiums and encyclopedias that have been published to accompany the study of works under copyright. I do see the grey area in that the Vander Ark’s Lexicon does include material from her books, such as recipes and the like, but I am very curious to see the outcome of this suit. Considering the increasing popularity of fanfic, fan sites, and fan communities that aren’t always in the control of the original distributor of the content being lauded, Rowling’s suit could have far-reaching implications.
Huh. I stand corrected on the bonus thing, although it still feels like a rather dodgy practise to me. Give me a nice, solid money-for-sales agreement over hypothetical rewards for jumping through hoops, any day.
I’m not sure that bonus clause and the number of advance copies does RDR any favours with respect to their attempts to create a “David vs. Goliath” argument, either. Pretty hard to argue that they’re not aggressively competing with JKR’s market for an encyclopedia if they’re anticipating selling that many copies. (Leaving aside the issue of whether, in this like many other things, they’re totally delusional.)
Nomad, you’re absolutely dead-on with your interpretation of RDR Books. They’re just about the most pathetic publishing institution…
They did not have an IP lawyer before this debacle. And when it all began, they had some guy’s cousin doing the legal footwork. The cousin was, I believe, a specialist in real estate law or something similar.
RDR books is a big bucket o’fail. They’re David…if David were armed with nothing more than a rubber band, without the support of God.
(Info from Fandom Wank, which has been a consistent source of reliable information throughout this whole mess.)
Robin 5:23 on 2/29 wrote:
“My {sarcasm alert} favorite {/sarcasm alert} Rowling lawsuit was the one she filed against an Indian festival for their decision to build a life-sized model of Hogwarts: http://www.sajaforum.org/2007/10/religion-jk-row.html”
Just to correct the record, the fact is it that it was a corporate-sponsored event, not a non-profit religious festival, that was sued in India:
http://www.jkrowling.com/textonly/en/rubbishbin_view.cfm?id=17
Don’t believe everything you read on the internet 😉
Thank you, Nomad for your response.
The contract is for a fictional book that will primarily be marketed to children (and the online Harry Potter fandom).
Yes, the 500 Authors copies info is correct. That number appears on the contract and it was duly signed.
The links that would earn 50% net profit are links for the ‘floo network’ which encompass HP-Lexicon (Steve’s site), the accio-quote.org site, and the-leaky-cauldron.org site (M. Anelli’s site, and a webmistress of the Floo Network; she was unaware of this net profit scheme that these links would have been used for).
As for the indemnity clause, Steve did indemnify the publishers as is standard. What does not appear to be standard is that RDR Books were to specifically indemnify Steve against copyright infringement suits “specifically” brought by Rowling or her licensees/assignees, no others.
That’s just totally bizarre. I’ll indemnify you but just in case your wrong (they assured him this book did not infringe, how they did so while not employing an IP expert is beyond me), you’ll indemnify me from lawsuits brought by Rowling/WB.
Does anyone think this is a factor in his not breaking with this publisher? If he breaks contract then he’s no longer indemnified and can be named in this suit, yes?
After pondering this one while driving a bunch of miles yesterday, I can identify that the suit is incredibly important, but I don’t know how it’s going to go or enough of the specifics. As for fandom and where the line ends and copyright infringement begins, between Candy and Jane and Robin, I can not speak with any degree of legal intellect except to say that a copy of Con Law I makes a great door stop and step stool when you’re short.
However, if I think in terms of a large body of work – say, for example, the royal flush that is Robb/Roberts’ In Death series – and then consider whether a guide or encyclopedia that cross referenced and reorganized the facts from that series while citing them all the while as the source of the information, would such a guide be infringement? The work that created the series is Robb/Roberts’ but the work that went into compiling the organization thereof belongs to the author of the guide.
But if that encyclopedia du Robb included additional fictional works derived from the characters – such as a chapter introducing Eve and Roarke’s baby – that in my mind crosses the line into inappropriate usage, attributed or not.
So when I take that example and apply it to Vander Ark’s work, I can’t find a consistent listing of what’s in the book itself. The Wiki says the “Lexicon lists characters, places, creatures, spells, potions and magical devices, as well as analyzing magical theory and other details of the series” plus Vander Ark’s timeline of the HP universe. Rowling states that she believes it’s a hard copy of the website and a reorganization of her characters and plots – but there’s no indication that I can see on the Lexicon site itself if certain pages of content have been earmarked for inclusion. Rowling has mentioned specific content that’s troubling but I haven’t located a specific list of what that content is.
So I have no idea whether the encyclopedia in question reorganizes and indexes Rowling’s characters or if it extrapolates from her plots and characters to new fiction work.
I honestly couldn’t predict how the lawsuit will turn out because it really could go either way. Either judgment, as I said, will impact how fandom continues to grow and create/re-create and could have a tangential effect on how the internet, and sites like this one, interact with fictional works.
Also, reading over those documents on justia…. Holy Cow.
And lilywhite – no worries. I fixed your tags. And for those requesting preview functions, we’re working on it. I hear you, don’t worry.
@ SB Sarah:
The book in question is viewable in the court documents. It specifically takes copyrighted materials from the site, mainly from it’s A-Z guide {generally copied verbatim from the books}, and without full citations for half of the quotes and no citations for the other half.
Out of 2437 glossary-type entries only 403 do not lift text directly from Ms. Rowling’s work. The author goes on to plagi-phrase Ms. Rowling’s work without adding anything of substance in the manner of commentary, unless you count adverbs such as “sadly”, “probably”, “presumably”; or synonyms such as “it is unknown”, “they were not exactly”, “this may have been”, all followed up with plagi-phrased material.
“A line by line review of the Lexicon book reveals that out of 2437 entries, 2034 entries simply lift information straight out of the Harry Potter books.”—Jeri Johnson, Prof. English, Exeter College, Oxford
Percentage wise, the entries are 84% copyrighted materials belonging to Ms. Rowling. That is not ‘fair use’, it is theft.
Sorry for the double post…
Robin, thanks for your response. The reason I’d asked was because the the owner of the Lexicon book had also comprised a timeline entirely derived from JKRs books et al and put it on his site.
WB has used this timeline in their dvds apparently without his knowledge, but he’s known about it and had no issue with it up to this point. Now he’s declared it’s his copyrighted materials and WB has infringed upon it so he should be compensated for that.
It’s briefly mentioned in the current lawsuit and I’d read the Pickett v Prince ruling and thought it had merit in countering infringement of Steve’s derivative copyright aspect.
Oh, and about the Durgha festival…it IS primarily a religious festival. No one has to pay to view or walk through the pandals. They are free and open to the public. It’s a huge festival, lasting days.
This doesn’t mean it was non-commercial and non-infringing, though. The groups which create the pandals [which are many and varied] are very much like the Rotarians in the US. They get together and brainstorm ideas for fundraising. They pool their money, they get corporate sponsors, they sell vendor’s stall for X amount of rupies {these vendors then make their own monies off of the infringed work via people coming to see the pandal}, and sell huge sign promotions (think Gatorade/Nike at the superbowl) again for X amount of rupies. All of the rupies go in the ‘kitty’ and these funds pay for the creation of the pandal. Unlike the Rotarians, the pandal societies do not ensure their pandals {like stationary parade floats) are not infringing the rights of others.
The court ruled it was non-commercial venture, however, the people should not have proceeded without proper permission and in future must seek permission of the rights holder or will be held fully accountable for infringement.
Both sides won, in a manner of speaking. The pandal got to stay up {and was the belle of the ball} and Rowling’s rights were upheld and will be honored in any future events.
anonymoose – thanks for that info. I was having a horrible time getting justia to load on my computer. After a reboot and much cussing, I’ll go back and look again.
Has anyone posted the filings in the Indian festival case, because Rowling’s comments on it are, ah, confusing (I think her definition of a “technicality” is different from mine, for starters).
I did, though, find an interesting blog entry on the issue:
http://scrivenerserror.blogspot.com/2007/11/accio-lawsuit.html
Finally someone who could answer the copyright rather than trademark question!
Still, though, if Rowling insists that the damages were a mere “technicality” that she and WB “waived,” why not just file for injunctive relief?
The complaint would be really helpful.
Robin, I can’t answer the question about the filings, b/c I have no idea. But in defense of JKR’s comments on the issue, if she was as uninvolved as she says (ie if the lawsuit was entirely driven by WB and her name was only on it b/c it had to be), why would she know the exact technical details of the suit? I mean, I suppose you could say it’s her responsibility to know all of these things, and I’d agree, to a point. But hell, WB confuses me as a consumer…I can’t imagine what it looks like from the inside.
Sorry, no links to the case law. I do know that they sought injunctive relief. These were some of the reports that I came across, though:
“Allowing the organisers to use Potter replicas till October 26 – the last day of the festivities – Justice Kaul ordered the “defendants (organizers) in future to model their pandals on any of the subject matter only with the leave and liberty of the plaintiff (Rowling)â€.
Refusing to impose compensation, the court termed the organiser’s use of Potter characters in Durga festival as a “non-profit making enterprise†without any aim to derive financial mileage. “
And another comment from WB:
 The injunction was made in our favor, but the court decided that there was insufficient time for the Harry Potter elements of this particular event to be amended or withdrawn. We are pleased that the court has recognized that such events cannot proceed without Warner Bros’ permission which should have been obtained.â€
About Justice Sanjay Kishan Kaul’s rejection of Warner Brother’s claim for compensation – on the grounds that a claim could not be made on a public purpose such as a puja – the statement issued in London said: “Court requirements in India meant that minimum damages initially had to be claimed, but we expressly waived these in the court hearing.â€
“Warner is thought to have been informed by its legal advisers in India that this was a commercially organized event which was selling 40 to 50 stalls at a cost of $600 each and banner advertisements at a cost of $250 each to local and internationally recognized companies.â€
I’m so disappointed that I’m so late to this party, since I’ve been reading and writing fanfiction for ten years and therefore have a vested interest in the outcome of the lawsuit.
One of my livejournal friends, LaT, once characterized fandom as a “gift culture,” which I think is the most apt description of the community I’ve ever seen. The only currency in fandom is the work itself (story, vid, artwork), feedback (comments to fanworks), or acts of administration/organization (building someone’s website, organizing a fanwork exchange like Yuletide, organizing a postcard drive for an actor, etc.).
So, from the standpoint of someone who’s been participating in and observing fandom for a decade, the major problem with the publication of the HP Lexicon is that SVA is trying to profit off not just JKR’s work, but also the work that hundreds of fans did as their gift to other HP fans.
Fandom is a community, and like any community it has standards and mores that govern behavior; much of it has been developed over the thirty-some years that fanworks have existed. These codes of behavior aren’t enforceable in the way laws are, but that doesn’t mean they aren’t valid to a majority of fandom members.
For the vast majority of people in fandom, the barest hint of anyone attempting to profit from fanwork results in many fandom members recoiling from it instinctively; the best example of this is the discussion of and around FanLib, a commercial service that debuted in 2007. In fact, it was this corporation’s attempt to profit on fanworks that in part prompted the creation of The Organization for Transformative Works, a nonprofit group that, among other actions, plans to create an archive of fanworks, as well as an academic journal devoted to the subject. (Naomi Novik, author of the Temeraire series of fantasy books, is on the Board of Directors.)
As you can probably tell, I’m rooting for Rowling in the lawsuit.
http://www.journalfen.net/community/fandom_wank/1143250.html?thread=173327826#t173327826
NWS
Fandom_wank gave Nora a boobie train. This is a great honor and reserved for those who show intelligence in the midst of wanking. Uh, not Nora wanking. Nora never wanked.
I’ll stop now.
spam word: getting57
I don’t think there were that many boobies.
anonymoose: thanks; I saw a lot of those comments, too, and it made me even more interested in seeing the actual pleadings, lol.
snarkhunter: I don’t expect any author to be well-versed in the ins and outs of copyright law (I mean, IP scholars and judges argue over its meaning ALL THE TIME). It’s just that damages apply in any lawsuit, and they’re hardly a “technicality.” I’m not saying I don’t believe that WB drove the India suit, only that Rowling’s comments struck me as odd, what with so much litigation around her and in her name.
General question for Potter fans: are there any circumstances under which you would see the sale of a reader-generated lexicon as ethically acceptable?
Robin: ooh, ooh! Pick me, pick me! I would not object to a reader generated lexicon that had a large amount of original material. I do own several such books. Some scrutinize the HP books, showing symbolism, motif and guessing at what will happen to each character. (Obviously, there were written before the series concluded.) Others investigate the role of myth and fairy-tale to HP. These books were largely the creation of their authors. The Lexiconbook seems to be more one person writing “and then JKR says…”
That said, I confess that I do not like LexiconSteve. He’s made some persoanl choices that bother me. I’m also a little squicked by people who want to make a living by being The Biggest Fan of (insert fandom here).
The thing is, the Lexicon isn’t legitimate creative work in any sense. It’s an alphabetised repackaging of Rowling’s work with the intention of making money. I don’t know about you guys in the States, but here in Australia, I’m pretty sure that’d be illegal. SVA and RDR are very, very in the wrong here; they know it, JK knows it and we (many of the fans) know it. If they win, what’s to stop authors from deciding that they can’t afford to let online fandom run the way it does now? As an (amateur) writer myself, I can’t help approaching this from a “writer first, fans second” perspective, and when looked at in this way, JKR has every right to do what she’s doing.
I hope she wins, not just because she’s right, not just because the law is, as far as I know, on her side, but because fans need to be reminded that they are playing in someone else’s sandbox and have the responsibility to behave themselves while they do.
General question for Potter fans: are there any circumstances under which you would see the sale of a reader-generated lexicon as ethically acceptable?
Can I already get it for free on the internet? B/c if I can…no. No, there are no circumstances where selling it would be acceptable.
If it were more than just an alphabetized list with cross-references to other books in the series, ie if it were a sufficient scholarly work that did considerable legwork in digging up potential folkloric sources, that might be okay. If it had the creator’s (in this case JKR’s) blessing, that would be okay. As it is, it just reeks of entitlement and a misplaced sense of ownership.
Oddly, I feel somewhat differently about TV series, b/c there is no single owner of the ideas (the studio is not a person), and even if the creator can be identified (ala Joss Whedon, Chris Carter, or stupid JJ Abrams), those individuals usually have somewhat less creative control (by virtue of employing a writing staff) than an individual novelist. In the past, I’ve always sided with fans when they were faced with C&Ds from Lucasfilms or Fox Studios. But the difference was that all of those works were FREE—no one was trying to make a buck off of them. Fan culture is a free culture. We all know that going in.
Even someone who is able to take her fan work and transform it into a legitimate business enterprise still has to either have some transformative quality or provide a service that cannot be obtained from the original works. (For example, Naomi Novik, whose Temeraire books are fanfiction with the serial numbers filed off, or even Melissa Anelli of The Leaky Cauldron, who runs the nonprofit Leaky LLC/Inc., which is not at all like the Lexicon.)
A boobie train.
I’m so honored.
Plus, lots of very pretty boobies.
Nora
“And finally, does anyone write Shakespeare fanfic? Wouldn’t that be cool? (Yes, I’m revealing my age here.)”
Would “Caliban’s Hour” by Tad Williams count? The Tempest from Caliban’s point of view. (I wrote my senior midterm thesis on it. :-D)
Sorry, you’re wrong. The creators of the fan encyclopedia aren’t writing essays about JKR’s work or interpreting it or whatever; they are simply compiling HER facts into a book and trying to make money off it. I don’t care how rich she is, she owns her characters and has the right to sue!
Fanfiction authors don’t earn money.
Exactly. I’ve been in various fandoms for years and the only money I ever made was selling stuff on ebay or amazon and that’s not much.
Coming in late here… but it’s just all so fascinating!
@Lucy:
Sorry, you’re wrong. The creators of the fan encyclopedia aren’t writing essays about JKR’s work or interpreting it or whatever; they are simply compiling HER facts into a book and trying to make money off it.
Yes and no. And that was part of the problem in the beginning. The Lexicon site *both* compiles facts/quotes and presents them in an encyclopedic manner, *and* collects essays and so on.
Problems started when JKR/WB said to RDR/SVA, “let us see this book you say you’re publishing”, and RDR (mainly)/SVA responded with a collection of contradictory statements, indeed, everything *except* handing over a manuscript of the book.
One of the early statements that still gives followers of this case a good chuckle was the snide “Just print out the website and you’ll know what’s in the book!” Ha ha. Of course, if you printed out the website, you’d get all the essays… which weren’t written by SVA himself, and for which permission to include in the book was not obtained from the actual writers. After a while it began to seem that no, none of those critical essays (which might have saved the Lexicon) were actually in the manuscript (… or RDR had removed them by that time). Honestly, they’ve changed their story so many times now, it’s difficult to keep track.
Let me state up-front that I’ve been reading about this case in detail for months now, following the FW postings, and I’m entirely behind JKR/WB. Part of that is because RDR’s actions make it difficult to sympathize with them, as some of SVA’s statements make it difficult to sympathize with him. Part of it is because I’ve been in fandom for almost 30 years, and am invested in its gift-culture, non-profit nature. All of us in fandom put hours and hours into the things we do, almost always for free, as a gift to other fans. So SVA put hours and work into developing a website? That’s what we all do, it doesn’t make him special.
About the Lexicon, I’ll say this: it sounds very much to me as if it is not a “lexicon”, but rather, is a concordance. And I think there is a great deal of value to a concordance for a work that is so huge. And a concordance would, by definition I think, be exactly what the Lexicon sounds like it is: a collection of quotes of the canon’s words, but rearranged, indexed in a different fashion. It’d be the easy way to find the answer to, “I want to see a collection of all the times JKR wrote about the expelliarmus spell in her text.” Or whatever.
Concordances have a long and respectable scholarly history. But, yeah—they don’t get published without obtaining permissions from copyright holders, if they are concordances of works still in copyright.
Under what circumstances would I be happy to see a reader-compiled concordance like the Lexicon published for sale? That’s easy—when it fulfilled its legal obligations for publishing.
The fact that this concordance has usefully existed for years now, supplemented by critical essays and other material, on a website that is freely accessible to all, is just one of those delightful things that you find in fandom all the time: an enormous effort shared for free with other fans out of goodwill and for the support of the overall community. (Does SVA think he is the first person ever to pour hours, and recruit the work of volunteers, to compile such a work to supplement a beloved canon? Tsk.)
As a fan, I look at that free, ever-updated work, and can’t help but recoil when someone offers to provide it in print for a profit.
One of the disingenuous statements related to the publication of the Lexicon was something about fans having clamored to SVA, desiring a print copy of the Lexicon—and somehow the $25 RDR volume was the only way to provide that?
Honestly. Trying to sell that bill of goods to anyone in fandom who has ever dealt with (let alone been the editor/publisher of) print fanzines is a non-starter. You want a print copy of the online Lexicon? Very doable—not easily done, mind you, but doable. And probably not likely to bring the wrath of JKR down on your head, if you do it the way fanzines have been done for the past 40+ years. That is, you do the massive editorial work for free (just as fanzine editors have always done), and you sell the resultant work strictly at-cost for the printing/copying costs. You keep meticulous records that you offer to show to anyone who wishes to see them in order to prove the at-cost nature of the publication. And then you wait to see how many people out there want a printed, bound copy enough to shell out $50 for one. (Perhaps; the economy of copying scale on fanzines is generally horrible.)
But you don’t publish it commercially; you don’t offer it for sale on Amazon; and you don’t slap a cover on it that is meant to make it look to the untrained eye like it is an official publication. (Of course, being something printed and bound at Kinko’s, a fanzine doesn’t look very official anyway.)
I don’t know—perhaps if SVA had approached JKR describing the proposed book as a concordance, and arguing for the value of that type of work as a supplement to her canon, as well as for its non-competing nature with her proposed encyclopedia… Well, perhaps he would have swayed her. I think that concordances *are* a legitimate scholarly effort; but no, they aren’t *transformative*.
Finally, just adding my voice—thank you, Cat, for your excellent response to Laura Kinsale regarding the important differences between “plagiarism” and what fanfiction does. Certainly, fanfiction uses the intellectual property of others as a springboard—but *not* to plagiarize. Plagiarists are regarded dimly by the fannish community.
Like others, I remain puzzled by those who express disdain for the exercise of fanfiction, without also (apparently) expressing disdain for the dozen and dozen of published works (modern and historical) that come about in much the same manner.
Sure, there’s a lot of crap to be found in fanfic archives. Certainly, fanfiction is not (usually) subjected to editing and other quality controls. That doesn’t mean that some fanfic isn’t excellent, in terms of quality. And that really isn’t the issue. That has no relation to the fact that what’s usually being denigrated is the borrowing of worlds, characters, and situations created by someone else, and then constructing a new story using them. I truly don’t understand how anyone could mistake that for plagiarism, or why, *by itself*, that is somehow deemed a lesser creative effort in the face of so many respected published works that do the same thing.
@ Sgaana, I don’t suppose it’s appropriate to say that I totally fangirl you right now? You’ve managed to condense…12 wank reports, I think? into one very on-the-spot post.
What is NAT? (something tells me it’s a dumb question:D)
What is EITG? (something tells me it’s a dumb question:D)