Giving Away Spoilers Isn't Copyright Infringement
from the oh-please dept
We pointed to some of JK Rowling's questionable testimony in the case against a publisher of a guide book to the Harry Potter universe -- where she made a bunch of emotional claims that had little to do with copyright. In wrapping up the case, she again made contradictory claims, backing away from earlier claims of the book being "wholesale theft" to saying that she wasn't so against the book if it only didn't quote so much of the book. But the much odder part of the case was the closing testimony from the lawyer representing Warner Brothers (who owns the Harry Potter IP rights), claiming that the real harm was that the Harry Potter Lexicon gives away spoilers and that people might say: "You know what? I guess I don't really need the rest of the Harry Potter books because I just read the big giveaways." First of all, that seems unlikely -- but more importantly, giving away spoilers is not copyright infringement. Once again, it seems like WB/Rowling keep appealing to emotional arguments rather than anything having to do with the actual law.
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Filed Under: copyright, guidebook, harry potter, harry potter lexicon, j.k. rowling
Companies: warner brothers
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Film critics review movies, sometimes telling spoilers. Yet, those reviews do not violate copyright. They merely talk about the films.
TV Guide reviews TV shows, explains TV shows, and sometimes gives away plot details including spoilers. Yet, TV Guide does not violate copyright. The magazine merely talks about TV programing.
As I've stated here before, to say that the Lexicon somehow replaces the series of books is as asinine as saying that TV Guide somehow replaces broadcast television.
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Already tried that...
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How much of this is lawyer driven?
"This is great", he thought, "the market is wide open". So he opened up shop. For months he had no income, and his funds were running dry.
Then one day, a smile came to his face. Another lawyer had setup shop across the street. From then on the 1st lawyer had no worries about where his next meal would be coming from.
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Spoilers should be labeled
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What about the movie "Free Willie"
The title is a spoiler, sue yourself.
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Wrrong way round
The target audience for this type of guide (as with similar books about Tolkien's Middle Earth, Stephen King's Dark Tower series, etc.) is NOT people who haven't read the books yet. It's people who want to read more and to look at connections they might have missed.
In other words, this book provides a service to people who have ALREADY handed their money over to you. A real world of difference this one: King admitted to using the guide to his universe to help him keep track of the world he created and write the final chapters. Rowling says "money money money it's mine, I haven't got any more books in me so I'll sue to get more money".
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I am right.
Again, listen to me. I am right.
Like I said you write a successful book, like I also did by the way, and see if you won't be just as selfish and controlling.
SO just STFU plz.
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What a compliment - someone writes works about my works in acknowledgment of their awesomeness.
JK Rowling is an idiot.
(I don't like the books either)
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Re: I am right.
Why don't you tell us the name of your book? Then I can look it up (I'd bet I haven't read it) and then put all the spoilers here so you can sue me. Or, you won't and then your just Angry Dude and you forgot to put in your name.
A return after every line, egomaniacle comments, the only argument being "I am right". I think you are Angry Dude.
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Re: Wrrong way round
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Actually, it appears that you need a refresher course, as your understanding of fair use is lacking. Financial benefit is only part of one of the factors in the four factor test to determine fair use.
The four factor test, as swiped from Wikipedia:
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;
4. the effect of the use upon the potential market for or value of the copyrighted work.
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Re: Re: I am right.
My name is next to my post.
Who's Angry Dude anyway?
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Wanna hook up later to discuss?
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Spoilers = Copyright, Or Content = Copyright?
Its almost as if Warner Bros are valuing the series as if it was 'content' rather then literature. But the position is made even more ridiculous when you consider that a great number of people who went to watch the Warner Brothers films did so having already read the books, and so already knew how it was going to end.
Besides, if anyone wants to know the plot of every book they just have to look on wikipedia.
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Deleting such comments would at least keep the discussion on topic versus having some idiot shill come in and derail an intelligent discussion so as to persuade the public that draconian copyright laws are necessary.
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The Lexicon is not a derivative work. It's an explanation of a work. Is a Rolling Stone review of a song a derivative work? Nope. Is TV Guide a derivative work? Nope. Is a review of a fimm a derivative work? Nope.
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Let's look at the comment I complained about. First, it is utterly ignorant about the law. Second, it uses improper language. Third, it incites comments based on emotion.
When new people come to this site and read such comments, the site looks like it is being over-run by idiots. Sort of like what happened to usenet back in the late 90s when AOL opened their floodgates.
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Re: How much of this is lawyer driven?
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A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.
My understanding is that the lexicon is a transformation based on Rowling's published works. That being said, it's still covered by fair use.
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@Ima Fish
Removing comments because they're not-helpful leads to trying to define what 'helpful' is, and that degrades the integrity of the conversation. Removing comments because they're offensive requires defining how offensive a comment can be before it outweighs the usefulness of the comment's content, and that degreades the integrity of the conversation. It doesn't take much to start people wondering how much of the conversation is truely representational and how much has been filtered through some arbitrary mechanism.
Even the comment you complained about brings up pertinent points relevant to the topic at hand: Harry potter IS Rowling's creation, and she should have control over her work based on the effort and talent she employed to bring it forth. Even if the regulars here at Techdirt have heard the line over and over and have had to refute it over and over, people are still thinking about it and those who DON'T read all of Techdirt care about the resolution of such arguments.
Yeah, not having the moderators aggressively 'clean up' the blog means we have to tolerate some unpleasantness, but I'd prefer that than begin questioning the integrity of our discussions.
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Re: Re: Re: I am right.
Anonymous Coward? Or maybe Apr 18th? 7:07am? or is it literally "next to my post"? That must have sucked going threw high school.
You never did give us the name of your book.
and as for Angry Dude, He's an egotistical maniac who hits enter after every line, never gives proper arguments and never backs up any of his comments. oh and he calls everyone MORON because he thinks he's god. Sound familiar?
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[Crowd chanting] "Are you JK in diguise???"
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(I do like her books, though.)
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Hmmm
Believe me, I'm no fan of the author as a person and detest her constant attempts to control every aspect of the characters she created.
However, in this instance I think my original opinion may be flawed. If this Lexicon is nothing more than just a long list of quotations from the original books, then it really can't be classed as a derivative work and wouldn't fall under fair use.
The argument about Rolling Stone (and I suppose Rotten Tomatoes, Wikipedia, amazon etc.) publishing "spoilers" or quotes isn't really relevant as reviews don't usually print substantial passages from the work and such quotations do not ordinarily comprise the substantial bulk of the review....
All that said, Rowling doesn't really need the money, she should just put out a word saying "This work isn't original or official and I don't condone it"... Just because someone can make hundreds of thousands or millions of dollars on a lawsuit doesn't always mean they should follow through with that. It's plain old greed I'm afraid.
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Re: I am right.
Overall though there have been other books based off of fictional work created before. It's pretty clear that the author is over stepping her bounds and either she is really that stupid or her lawyers aren't doing her job to counsel her correctly.
Or she has no idea how to work PR.
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Re: less lame????
IMDB allows posting of "spoilers" about movies.
Are you arguing that IMDB is "lame" because of this?
There is NOTHING wrong with a book or site providing spoilers for ANY media source. While reading a spoiler might change my decision to read a book or view a movie, that's MY choice, not the media company's.
Personally, I don't read spoilers for movies I don't want SPOILED. If I DON'T think I want to see the movie, I might read the spoiler just to confirm that, but sometimes say, "Ooh, it actually sounds interesting now. I'll go rent/see that."
Come on guys, if you want to argue "lameness", you're being no less EMOTIONAL than JKR or Warn-a-brotha.
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There's a reason they're called "
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There's a reason they're called "spoilers"
However, I think it's fair to say that if you read a comprehensive guidebook to a story world, you should expect it's going to have to explain how the story ends.
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Re: There's a reason they're called "
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First, as I understand it, when Rowling learned of the book, she asked to take a look at what he was publishing to make sure no content that was infringing was in it. He refused, then tried to rush it into publication.
Second, the title makes no mention of it being Unauthorized. It seems that the author is trying to make it look official. Rowling has a similar book coming out in the future, and she was planning to donate the proceeds to charity.
Third, the book apparently contains material from the books copied verbatim and it also reprints essays from the website without giving the original author credit or compensation.
In other words, it sounds like the author is trying to make money off of other people's work, and give the impression that Rowling is the author.
When you LEARN about the case at hand, instead of just ignorantly shooting your mouth off, you see that it does not come out looking good for either the Lexicon guy or for Rowling herself.
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One of the issues in the lawsuit was indeed whether the book looked too official; that was settled with an agreement to change the typeface and remove a Rowling quote where she praised the Web site from the book jacket.
"Third, the book apparently contains material from the books copied verbatim"
Some, but by all reports, way, way less than what's on the Web site. One thing I wish we could get clarification on is whether Rowling's opinion about quoting too much is based on the actual book text (which RDR claims to have sent to WB's lawyers after the suit was filed) or the amount on the Web site.
"and it also reprints essays from the website without giving the original author credit or compensation."
RDR says there are only contributions from three people besides Steve Vander Ark included in the book, and that Vander Ark had some kind of agreement with those other three people about passing compensation on to them. I know that's vague, but it's the information we have.
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I am the A/C from 1
P.S. DanC, fair use was never intended include those who profit. Otherwise, all those people who sample music in their own music would not have to license it, but they do.
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Re: Hmmm
She doesn't need the money and the entire situation shows a substantial amount of greed, however it's her work that they're quoting and using.
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Comparison?? Huh?
A book about a particular programming language is educating someone on how to use that product while sustaining and promoting it.
A closer example would be to say that you write a book on a programming language with examples and someone comes along and takes the examples out of the book (line for line) and republishes them without the rest of your book and makes money off of it.
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Re: I am the A/C from 1
I assume you have a source on that? Because, as I noted, that isn't what the law says. The law does take the profit motive into account, but it is not the only or even the most important factor in determining fair use. The four factor test was entered into law as part of the Copyright Act of 1976, and is based off a ruling from 1841. Fair use has never been solely about whether or not a profit is being made from a derivative work.
Campbell v. Acuff-Rose Music, Inc disproves your point as well, since 2 Live Crew did not acquire permission to parody "Oh, Pretty Woman", yet their commercial use was found to be protected by fair use. And prior to this case, the effect on the original work's value was considered the most important factor, not profit.
As per your example of licensing for sampling, there have been relatively few significant cases pertaining to it, the most important being Bridgeport Music v. Dimension Films, which did find a sample infringing, but explicitly stated that fair use was still viable to defend the sampling.
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Re: I am the A/C from 1
Um. I don't think it's copyright infringement.
To act like a qualified authority of copyright law only to inject your own personal opinion instead is like well...the Music/Entertainment industry. In fact, I think Rowling might be trying to do that, as well. This seems like an emotional charged blog with no factual backing.
Which parts have I not backed up with facts?
P.S. DanC, fair use was never intended include those who profit. Otherwise, all those people who sample music in their own music would not have to license it, but they do.
Actually, that's incorrect. You are allowed to profit from fair use. As Dan correctly pointed out, commercial use is only one factor of the four-factor test, and there are plenty of fair use examples where people profit from the use.
For a court decision that clearly stated that profit is not against fair use, take a look here:
http://www.techdirt.com/articles/20060519/035207.shtml
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Re: I am the A/C from 1
Giving away spoilers does not equal copyright infringement. That is fact, not opinion. While something about the spoilers might potentially be infringing, the fact that spoilers exist does not mean that there was infringement.
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Ok, come arrest me for copyright infringment. :)
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This comment is an infringment, then!?!?
Good thing we don't live in the fantasy world were "How would feel I" != law.
BTW, If you don't agree with me, the I hope you observe you flawwed interpretation of Copyright and Fair Use and not respond to anything I've posted. Since, I may feel bad and/or prevent me from profiting from my "creativity". O.o :P
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Two points
For example, Cliff Notes Study Guides give away spoilers to every single Shakespeare work. Can the estate of Shakespeare sue?
Or better yet, can New Line Cinema sue Cliff Notes over their study guide of Lord of the Rings?
Spoiler alert: Frodo succeeds in his quest and the evil ring is cast into the fires of Mount Doom. :)
Or have these books been out long enough that "everyone" should know how they end?
Second, will seeing a spoiler really, truly, honestly keep people from buying a HP book or seeing the movie? I would guess that almost all of the target audience has read the HP book *before* seeing the movie!
Shouldn't Warner Bros be suing JK Rowling for giving away the plot of their movie?
Should Warner Bros sue the trailer-making people who give away spoilers in upcoming movies? "What do you mean they freed Willy? I never saw that coming!"
I know this sounds absurd, but this whole issue of spoilers is absurd.
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Re: Two points
Sure, the limit of copyright protection. When it expires after its 90 years or whatever, everything should be fine.
"Second, will seeing a spoiler really, truly, honestly keep people from buying a HP book or seeing the movie?"
Some people, yes. Some people won't go in unless they know the ending ahead of time. It takes all kinds, and all that.
"I would guess that almost all of the target audience has read the HP book *before* seeing the movie!"
Seems reasonable, doesn't it? But I've been surprised by just how many people are seeing the movies first, and in some cases never mean to read the books.
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Re: @Ima Fish
I can't define "helpful" but I know it when I see it.
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Re: Re: Hmmm
And legally so. I would also like to point out that JKR based her work on that of many who preceded her as well.
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Nope, no confusion here. Everything I posted supports my argument. As I stated, based on the legal definition in 17 U.S.C. 101, the lexicon is a derivative work. It (obviously) draws from the Harry Potter books, and is transformative in nature, being a reference book for the series. From the cited law:
"any other form in which a work may be recast, transformed, or adapted."
Obviously, my reading of the law is different than yours. I was quite clear, however, on my interpretation, so I fail to see how you construe posting the definition as weakening my argument.
Ima Fish is arguing that the lexicon falls more in line with a review, which I disagree with. Both the format and the intent are different, as a review analyzes a work and provides an opinion, while the lexicon is only meant to categorize content and provide additional information.
Regardless, none of the quibbling over definitions changes my original point that the lexicon is covered by fair use, regardless of its status as a derivative work.
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I note that you emphasized the word "transformed". But since the work hasn't been transformed that still doesn't apply. Thus, it still isn't a derivative work.
But maybe you think that "transformed" just means "or anything else". It doesn't. If that were the case, someone could argue that this very comment is just one of JKR's books "transformed". I guarantee you that I could come up with a "transformation process" which would do exactly that. But such broad interpretations of "transformed" are, for want of a better word, idiotic. In the case of the Harry Potter books, a work would need to at least serve a similar purpose as the books in order to be a transformation. For example, a movie retelling the story from the book would be a "transformed" and thus derivative work of the book. A guidebook describing it wouldn't. Hence, you are confused and weakening your own argument by citing 17 U.S.C. 101 whether you understand that or not.
Definitions are essential in law and your claim that the lexicon is a derivative work is very much relative to the rest of your claim. If the lexicon is neither a copy nor a derivative work then there is no copyright infringement here and I don't see how fair use is applicable at all. But perhaps you can explain now just exactly how the fair use exemption applies even in cases where there has been no infringement. (this should be good...)
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I fail to see how the lexicon doesn't qualify as a transformation. It takes material from the novels and casts it in a reference format. Therefore, it is a derivative work.
But maybe you think that "transformed" just means "or anything else".
I never said nor implied that, so attacking this point is a simple straw man argument.
a work would need to at least serve a similar purpose as the books in order to be a transformation
What is the source of this definition? I am basing my reasoning in part on Kelly v. Arriba Soft and Perfect 10 v. Amazon, where the indexing of images was determined to be both a derivative work and transformative in nature. Additionally, in the Perfect 10 decision, the circuit court stated that "A use is considered transformative only where a defendant changes a plaintiff’s copyrighted work or uses the plaintiff’s copyrighted work in a different context such that the plaintiff’s work is transformed into a new creation." In the case of the lexicon, the context has been changed to that of a reference book which indexes various elements of the Harry Potter universe.
A guidebook describing it wouldn't. Hence, you are confused and weakening your own argument by citing 17 U.S.C. 101 whether you understand that or not.
The only thing I'm particularly confused about is your use of the word 'transformation'. After stressing the importance of definitions, I'm a bit surprised that you would neglect to provide a source. I am unaware of any "similar purpose" stipulation for determining what constitutes a transformation.
But perhaps you can explain now just exactly how the fair use exemption applies even in cases where there has been no infringement.
The fair use exemption would still protect the lexicon's use of quotes from the novels in the event it is not ruled a derivative work.
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Next time you correct someone, try to be informed.
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I meant to elaborate on the flawed logic in this statement. Copyright infringement is in no way dependent upon whether a work is derivative or not. The inference made in your statement is simply incorrect; even if the lexicon is not considered a derivative work, it may still infringe copyright. Therefore, a fair use defense would still be applicable. Obviously, if no infringement has occurred, then a fair use defense would not be required. An unauthorized derivative work, however, is only a single form of copyright infringement.
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