Sunday, March 30, 2008

Scattered Thoughts on the Harry Potter Lexicon Lawsuit

I've been musing about the WB/ JK Rowling vs RDR Books lawsuit based on Steve Vander Ark's Lexicon book.

I'm going to be the bad blogger and not link to the news articles; there are so many articles and blogposts etc. In terms of accurate sources of information (as opposed to opinion), I recommend Fandom Wank; look for the posts by Cleolinda, like this one and posts tagged "This is the wank that never ends". It goes without saying that the good coverage (meaning including facts as opposed to commentary, like what I'm about to do) comes from the HP news sites such as The Leaky Cauldron and MuggleNet. Fans care about details; the lawsuit is all about the details; hence the good coverage.

I'll be upfront with my bias: I'm Team Rowling on this one.

So, back to my musings:

Why does it matter how much money JKR has earned or is worth?
Seriously, anytime I read an article that includes a "doesn't she have enough money" type statement, it bothers me. What does that have to do with JKR enforcing her rights? On depressing days, it seems like she's being told to be a good little girl: you've earned enough money, so be quiet and sit in the corner and don't try to earn any more.

Do you really want a defense of "she said she liked it" to succeed?
Cause you don't have to be a former lawyer to realize, hm, why would an author ever say they liked a fansite again? A loss for JKR on this would result in creators (musicians, authors, screenwriters, etc.) being cautioned: don't say you like it, it could mean you lose your right to control your creation or to make money off of it.

Do you really want a defense of "she didn't say to stop" to succeed?
See above; this would add to a creator not just being silent about certain fansites; but now feeling like they have to actively shut them down to preserve their own future rights.

Have you read the Lexicon book?
The actual manuscript is key to whether or not the Lexicon Book is or is not permitted under applicable law. It may be; it may not be. Unfortunately, the publishers dragged their feet in providing a copy, believing, apparently, that their saying "we don't think it infringes" is enough to establish that it doesn't. At the same time, they told JKR's side that if they wanted to know what the book would look like, go to the Lexicon and hit the print key (you do know how to use the print key, don't you?)

Aside from the awesome snark in that reply, it isn't true; the book is not the website simply printed out and bound in a book. At one point, there was talk about the essays on the Lexicon site being included, until it turned out that the authors of the essays had never been contacted about giving permission for their work to be published in a book. So right there -- hitting the print key doesn't give you the book. I also believe the Lexicon had movie photos; and as WB property, their would be an issue of whether or not they could be in the book. So, again --"just look at the website" isn't the answer. Oh, and as to the authors of the content on the Lexicon; given fan input into entries, I'm not sure whether or not it's even possible to get the permissions of everyone who contributed, unless their input included something to cover their work being in the book.

A lot of this is dependent on facts, especially what is or is not in the actual Lexicon book. And without reading it, it is hard to say who is right. I'm leaning towards Rowling, just because the snark from RDR, the changing description of the book, and the failure to provide a copy to resolve it pre-litigation all looks suspicious to me.

You own the family tree? Really?
Part of the reason JKR/WB being threatened with suit over using a HP family tree amuses me is because I constantly doodle fake family trees while reading books. I also love finding them online, especially for sprawling trees such as Jude Devereaux's Montgomery family. I would love for someone to explain to me just how JKR can be sued over a family tree based entirely on her own creation. Perhaps using certain colors or fonts is the issue? But as for the time being put in compiling it... OK, JKR is bad at math, but do you really believe she doesn't have a family tree she's working with? And even if she didn't, back to the points above regarding what authors will or won't do about fansites. If JKR were to lose on the family tree issue, what author or publisher in their right mind will allow you to put up a family tree unchallenged?

I mean, imagine this. I create a chart from Sarah Dessen's books showing who appears in what page in which book (SD uses characters from previous books). Can I sue SD when I see a similar chart on her blog? In one of her books?

Part of the risk of playing in someone else's sandbox is you cannot argue, "I built the sandcastle so now I own this part of the sandbox."

How will fandom be affected, depending on who wins?
We're not just talking about the Potter fandom here. This could have implications for all fandoms. If there is a ruling in RDR's favor, the lawyers for authors and publishers (and, yes, lawyers in film and TV) will go thru line by line, word by word, looking to see what they as the original creators should do to prevent another RDR-type win.

If the ruling points to JKR's saying "how nice," original creators will be advised to never compliment a fan site.

If a ruling says JKR said nothing, original creators will be advised to speak up and shut down fan sites.

If a ruling points to movie DVDs speaking favorably of fansites, that ends. So if Stephenie Meyer wants to include fanart in a Twilight DVD? It won't happen.

So, spun out to worst case scenario, it might mean that no one can participate in fandoms anymore because then fans could continue to make money off the source material. If you're thinking to yourself, "Well, I don't write fanfiction or create fanart, so this doesn't affect me," think again. To stop the production of any questionable fan-created content, authors could shut down any sites related to their works that they themselves did not create. No more Star Wars fansites. No more Team Edward versus Team Jacob debates, and definitely no t-shirts. Perhaps even no more Television Without Pity, because the writers there have created phrases now used by show fandoms. It would all be considered too risky for an author or TV series creator to allow.

In putting this together, I found the following bit by SVA:
A victory for RDR Books will protect the rights of fans to create based on someone else’s work. If RDR Books loses, copyright holders will be given broad new control over fan activity, control which will allow them to shut down sites, stop authors from writing about their works, etc. So a win for RDR Books is definitely in the best interest of fans who create websites, write fanfiction, make wands, compose wizard rock, and so on. I am surprised how many fans have missed this point. Their freedom to create is on the line here.

I'm one of those who have "missed the point." The way I see it, the only way a ruling will protect fans (and let's ignore for now the legal implications of a trial, in terms of who it applies to, etc.) is if the ruling says regardless of anything JKR did or did not do, RDR has the right to publish the book; thereby leaving no loophole for a future JKR to say "this is what I can/cannot do to stop a lexicon type book from being published." It also ignores one of the points of the lawsuit: is the Lexicon so original (as, say, is wizard rock) that it falls under an existing exception? Or is it so derivative of JKR's work that it lacks originality and so does not fall under an existing exception?

My conclusion
Fandom is wonderful. It creates community; and I would really hate to see it negatively impacted as a result of this lawsuit. Part of me fears that even if JKR wins, original content owners will still come down hard on fansites (or cease to interact with fansites) just to be on the safe side.

I also wonder: why not, at the start of all of this, say, "hey, the owner of HP thinks this is a copyright violation. Let me prove it isn't by showing her the work itself." Since the only way to determine that is to examine the work, why push it and force the lawsuit?

Edited 9/08 to add: What is funnier? That I never corrected the family tree stuff, above (it was a timeline); or, that no one pointed out my error. Anyway. I could have sworn I corrected it. Mea culpa mea culpa mea maxima culpa.


heather (errantdreams) said...

So far I agree with everything you've said here. A ruling for the fan-written lexicon would force copyright-holders to become even more tight-fisted with respect to what they allow fans to do, for fear that giving an inch means they've given the mile. And as you said, if the darn thing doesn't infringe, why the heck couldn't they show it to her?

And yeah, I'm pretty wary of anyone who thinks it's okay to go make a bunch of money not just off of Rowling's work, but also off of all the fans who've had input into the site, which sounds like it was, on the whole, a very joint venture. They want to have their cake and eat it too---limit Rowling's rights while taking away the rights of those who helped them out.

"Doesn't she have enough money" is irrelevant, I agree. First, who's to judge where the 'enough' line is? Second, the amount of money on the line is irrelevant to copyright law.

Anonymous said...

Wow. That was an amazing post. I have not kept up with the lawsuit at all. There could be so many bad consequences... scary.