Neil Gaiman On JK Rowling, Fair Use And The Flattery Of Derivative Works
from the flattery-will-get-you-everywhere dept
Copyfight points us to a fun blog post from Neil Gaiman where he discusses the lawsuit involving the "Harry Potter Lexicon" that JK Rowling is so upset about. He makes a bunch of good points about fair use and derivative works, saying that he'd be flattered if someone had done something similar with his works, and also notes that his own first books probably could be found as violating copyrights as well, and he's happy that no one acted like Rowling in trying to sue him for his work:Lots of emails from people asking me to comment on the JK Rowling/ Steve Vander Ark copyright case. My main reaction is, having read as much as I can about it, given the copyright grey zone it seems to exist in, is a "Well, if it was me, I'd probably be flattered", but that obviously isn't how J.K. Rowling feels. I can't imagine myself trying to stop any of the unauthorised books that have come out about me or about things I've created over the years, and where possible I've tried to help, and even when I haven't liked them I've shrugged and let it go.He also goes on to note, if somewhat tangentially, that others have accused Rowling of copying his own works -- specifically The Books of Magic that involve a young magician "with potential" who (at one point) goes off to a magic school. Gaiman points out that he does not believe Rowling took the idea from him (or even that she read his works), but that people writing within a certain genre are always going to overlap with ideas -- some of which they glean from others and some of which they come up with themselves. And that's a good thing. It's only in this unfortunate era when people seem to think that all ideas must spring brand new from a virgin mind that the ideas of sharing, building on the works of others and creating new derivative works are seen as being bad.
Given the messy area that "fair use" exists in in copyright law I can understand the judge not wanting to rule, and assume that whatever he says the case will head off to the court of appeal.
My heart is on the side of the people doing the unauthorised books, probably because the first two books I did were unauthorised, and one of them, Ghastly Beyond Belief, would have been incredibly vulnerable had anyone wanted to sue Kim Newman and me on the grounds that what we did, in a book of quotations that people might not have wanted to find themselves in, went beyond Fair Use.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, derivative works, harry potter, jk rowling, neil gaiman
Reader Comments
Subscribe: RSS
View by: Time | Thread
genre vs specifics
If you were to create a Star Wars Encyclopedia, Lucas would hang you high. If you created a book about a rebellion with main characters having mystical forces and follow all the other suggestions from Joseph Campbell, you would blend in with the 1000's of other stories like this. No big deal.
The issue is with specifically using Rowling's works to make a profit. And for that, she should have the final say on what is done with her works.
[ link to this | view in chronology ]
Re: genre vs specifics
[ link to this | view in chronology ]
Re: Re: genre vs specifics
[ link to this | view in chronology ]
Re: genre vs specifics
i see no reason this should be. who cares if someone is "profiting off someone else???" this is not taking a single dime away from rowling. you think her fans wont buy her books because some no name wrote a book based on her ideas. ridiculous
[ link to this | view in chronology ]
Re: genre vs specifics
I think the impression she's giving here is that this work will detract from her own work and certainly it will not.
[ link to this | view in chronology ]
Re: genre vs specifics
Again, people seem to get blinded by the content, and miss the fact that the *value* is clearly not in the content. If it were, then no one would by the Lexicon. Why would they? The content is already out there.
The *value* is in the *organization* of the content -- and that's new to this book. That's not Rowling's work.
So why do people get so upset by this?
[ link to this | view in chronology ]
Re: Re: genre vs specifics
Also note: if Rowling wins this case, it has a bit of really bad legal precedents it could be setting. Specifically when it comes to video game guides and whatnot as well, not by name of guide, but by organization.
I really hope Rowling's publisher can remove the Harry Potter broomstick from her ass.
[ link to this | view in chronology ]
Re: Re: genre vs specifics
you argue that the value is not in content or in the orginization of it.
for you the value is in advertising and only advertising.
Everything must be free and we will all profit from the advertisers.
respond when you figure out the flaw in your free market concept.
[ link to this | view in chronology ]
Re: Re: Re: genre vs specifics
[ link to this | view in chronology ]
Re: Re: Re: genre vs specifics
Hmm? Not at all. I've always argued that the value is in the organization. When have I said otherwise.
for you the value is in advertising and only advertising.
Again, not at all. If you look at my posts on business models, I explain why advertising is *not* always the right business mdoel.
Everything must be free and we will all profit from the advertisers.
Again, not at all. In many cases, advertisements are a bad way to monetize.
Please do not ascribe to me positions I have not taken.
[ link to this | view in chronology ]
Re: Re: genre vs specifics
...only to have someone lift whole passages without credit and print them presented as his original research and conclusions which is what the fan in question is doing.
If he used small parts of the descriptions and then followed with critique or expanded based on his view and interpretation, I would have no problem with it. But that isn't what he's doing.
He pulls entire passages from the books without changing a word, doesn't cite what book or what page and which edition, that's a problem. He's presenting her work as his own simply by organizing it in reference form.
That's copyright infringement. Not flattery.
"Copyright infringement is a violation of the rights of the copyright holder, when material is used without the copyright holder's consent."
He's taking material (names, items, full passages from the books wherein the item/person is described) from the books, directly.
If he were to interpret it and write a different, non word for word description, I'd support him. But the way he's done it, I won't.
[ link to this | view in chronology ]
Re: Re: Re: genre vs specifics
[ link to this | view in chronology ]
Re: Re: Re: genre vs specifics
You do realize that he couldn't cite what page these were from because there are hardbacks/paperbacks and there are massive differences in U.S vs U.K. editions as well. The book it was in would be helpful(I don't know anything about it..I hate Horny Porter personally) but I don't think it's necessary by any means.
[ link to this | view in chronology ]
Re: Re: Re: genre vs specifics
[ link to this | view in chronology ]
Re: genre vs specifics
[ link to this | view in chronology ]
Re: genre vs specifics
[ link to this | view in chronology ]
Re: genre vs specifics
[ link to this | view in chronology ]
Re: Re: genre vs specifics
I remember him on the show to submit his entry into the contest (clips straight from Episode I). Hilarious.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
http://www.amazon.com/Unauthorized-Star-Wars-Compendium-Complete/dp/0316329290
I never thought I'd see the day when there'd be a bigger boy-who-cried-copyright-infringement than George Lucas; and yet, there she is.
[ link to this | view in chronology ]
understanding copyright law and flattery
You seem to get the "idea/expression dichotomy" of copyright law when it suits your needs and forget it when it doesn't. In another context, you would have responded to "He also goes on to note ... that others have accused Rowling of copying his own works ... that involve a young magician 'with potential' who (at one point) goes off to a magic school" by correctly noting that copyright does not protect and idea; it only protects the expression of an idea.
Also, this entire copyright-infringement-as-flattery argument is lost on me. Flattery doesn't pay the bills. Flattery in this sense really means riding someone else's coattails without their permission and without paying for the ride.
C
[ link to this | view in chronology ]
Re: understanding copyright law and flattery
[ link to this | view in chronology ]
Re: understanding copyright law and flattery
JKR *totally* has to worry about paying the bills, i mean this guidebook is going to sell one millionth of the number of books that the harry potter series has sold, so clearly her ability to pay bills is in danger.
thank god the richest woman in england has you looking out for her welfare.
[ link to this | view in chronology ]
Re: understanding copyright law and flattery
Now, I submit there are three people who will have read and bought my book: those who read gaiman's books, those who hadn't read his works but were directed toward them after discovering his world through me, and those who hadn't read his works but decided after reading mine they didn't care for it anyways.
The first group has already benefitted Gaiman, and if I'm 'riding his coat-tails,' it's only because I've offerend the information in a useful way that hadn't been available before. (Mike will note how significant 'Official' is in these cases, and Gaiman could still make an Official Encyclopedia that would likely trump mine.
The second group didn't know about Gaiman's works before I introduced them to the world. Maybe they'd seen his books on the shelf, maybe not, but he was an unknown quantifty. As a fan, I've explained to them in my book what I love so much about Gaiman's works and having discovered this world, they go out and buy his series. You can't say I'm riding his coat-tails if my audience has never read him, and what's more I'm just directed new readers his way. I've benefitted him.
The final group is those who read my book and DON'T go on to read his series. As my encyclopedia is decidedly not the same thing as a narrative story, the only conclusion to be drawn is that they don't care for Gaiman's work and, as such, wouldn't have bought his series anyways. As above, I can't be riding his coat-tails if my audience is not already his fans. What's more, I haven't hurt him because these people who didn't buy wouldn't have bought even in my absense. And if you allow for direct quotations in my encyclopedia, you can't argue that it's my poor portrayal of his works that turned off prospective readers: if they liked his writing, they would have checked out the books.
[ link to this | view in chronology ]
Re: Re: understanding copyright law and flattery
Gaiman appears to be in a position where he can afford to have his work 'ripped off'. Many, though, can't. History (particularly the music industry) is full of examples where the people who did the remake, version, or other derivative work made millions, but the one who penned (painted, or sang) the original receives little (Consider, who wrote Twist and Shout? It wasn't The Beatles).
Yes, I'm as annoyed as the next guy at the greedy rantings of the George Lucases and JK Rowlings of the world when they cry, "Copyright infringement!" None-the-less, their rantings and insistence on the law can help the little guy protect him or herself from the predatory practices of those who would like to profit from their work without paying for it (or at least asking permission)
[ link to this | view in chronology ]
Re: Re: Re: understanding copyright law and flattery
[ link to this | view in chronology ]
Re: Re: Re: understanding copyright law and flattery
Songwriters are in a sticky place, especially if they're "freelance" and make a living selling transcripts of their songs. I think a much better place would be to attach to a certain band, at least until you make a name for yourself and can get paid on a hire basis. But that's neither here nor there.
Anyways, there's a big difference between writing an encyclopedia and ripping off a series wholecloth. The series the encyclopedia is ABOUT is already popular, otherwise no one would care enough to write it, let alone read it. Rowling is not being harmed here, nor is she "protecting" other writers. No one writes an encyclopedia about a series people have never heard of. And no one imagines that an *unofficial* encyclopedia is anything but the ideas of another person, collected and organized in a formal way.
[ link to this | view in chronology ]
Re: Re: understanding copyright law and flattery
This does not, of course, address the Rowlings situation at all--I just thought there was a missing step in your reasoning.
Briefly, I think Rowlings is almost certainly not worried about the money. I think either her sense of fair play is offended, or perhaps she has a fairly tender sense of possessiveness about her creations. I'm not sure what the public policy should be, but on an emotional level, I'm inclined to give her the benefit of the doubt and allow that she may not be a crazy witch.
[ link to this | view in chronology ]
Re: understanding copyright law and flattery
[ link to this | view in chronology ]
Re: understanding copyright law and flattery
Copyright isn't designed to pay the bills either. And, the point is that *anyone* who writes anything is somehow "riding on someone else's coattails." But, the real point is that if this book didn't have significant value above and beyond Rowlings' work, no one would buy it.
That's the point. If it were just a copy and added no value, no one would buy it anyway. The fact that people are interested in it suggests that it *adds* value, and therefore does *more* than what Rowling had done.
That should be encouraged.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Ideer belonging to a person
The whole concept gets impossible to put in to practice if you just dig a little under the surface.
Rowling wrote Harry Potter, and i agree that she alone should have the right to sell copies of that book and make money on it. But if she should have the right to all DERIVED products aswell, then everybody should have that right.
Did she invent the art of writing? No.
Did she invent the concept of story telling? No.
Did she invent the computer/pencil she wrote the story on/with? No!
She used the work of all the inventors of these things to make her book, and you don't see her paying them a dime!
Why?
Because it doesn't make sense to look at ideas as property that can be owned.
But that is exactly what our society is trying to do now, and it creates all kinds of problems like this.
Boys will be boys... Even when they grow up and make laws.
[ link to this | view in chronology ]
Re: Ideer belonging to a person
Did she invent the concept of story telling? No.
Did she invent the computer/pencil she wrote the story on/with? No!
She used the work of all the inventors of these things to make her book, and you don't see her paying them a dime!
Why?
Because it doesn't make sense to look at ideas as property that can be owned."
That is just plain illogical. She did pay for the computer/pencil. No "one" invented story telling, it's open source. But when it comes to using someone else's work to gain profit, especially considering the guy quoted so much of her work, you need permission. I don't think her "people" are worried about her ability to make profit, it's just, had this guy asked permission, it would have been a different story.
[ link to this | view in chronology ]
Re: Re: Ideer belonging to a person
[ link to this | view in chronology ]
Re: Ideer belonging to a person\no, but...
--Glenn
[ link to this | view in chronology ]
Put It In The Hands Of The Fans
[ link to this | view in chronology ]
rehash of old ideas
[ link to this | view in chronology ]
Agree with Neil
[ link to this | view in chronology ]
Lexicon vs Research Paper
[ link to this | view in chronology ]
Re: Lexicon vs Research Paper
[ link to this | view in chronology ]
Re: Re: Lexicon vs Research Paper
[ link to this | view in chronology ]
Gray area
[ link to this | view in chronology ]
Re: Gray area
[ link to this | view in chronology ]
Re: Re: Gray area
The problem is that merely making something more valuable does not by itself negate infringement.
[ link to this | view in chronology ]
Re: Gray area
He's crossing it. See Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (1998) (holding that the book The Seinfeld Aptitude Test, a trivia quizbook devoted to the show, infringed on Castle Rock's copyright in the show because the book "so minimally alters Seinfeld's original expression" as to not qualify as a transformative use).
[ link to this | view in chronology ]
original ideas
So many frivolous lawsuits these days.. and a judge has to rule who thought of it first and who should get credit - now that's a lot to ask of anyone.
I wonder if anyone thought of making a movie of that... wait. I bet that has already been done!
I wonder if thinking that there already has been one made was already made into a movie?
And on that note - Who is anyone to say who thought of something first? We are only seeing the counter of someone who is living. What if every dead person was alive too - maybe someone else a year ago - or 30 years ago voiced that he or she should get the credit??
Could you prove who thought of first? Would you want to judge who the profits should goto?
The whole thing is just too much to ask of anyone! It outta just be let go of.
[ link to this | view in chronology ]
Re: original ideas
[ link to this | view in chronology ]
fair use
[ link to this | view in chronology ]
Going over the line
But from the press descriptions, apparently, instead of writing his own entries, he used J.K. Rowling's own words for the entries.
If this is true, I think this is a big difference and probably why J.K. Rowling is angry enough to spend big bucks to sue him and his publisher. He should have written his own entries and not extensively quoted Rowling.
However, I do agree with some folks who say the judge is trying to avoid a ruling on this because he's afraid of establishing a "line in the sand" reference point over how much quoting is allowed or not allowed in such a work. And Rowling doesn't need the extra cash from a proposed profit split. She can fight this as long as she wants to.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
It's fair use.
Those flapping "I wouldn't want..." just keep projecting their lack of knowledge of copyright.
If you spanks were right, there would be no guidebooks, encyclopedias, dictionaries, Idiot Guides to Subject X, etc.
Rowling's core issue, is that she can't keep track of her own content, and knows that the UNOFFICIAL encyclopedia will be more accurate, complete, and lacking weak rationalizations meant to conceal numerous plot holes and deformed character development. Hence her statement regarding using the Lexicon to help write her books.
Copyright's original goal is provide incentive to create, that incentive was achieved by giving LIMITED rights to the original creator. It was never intended as never ending revenue stream.
[ link to this | view in chronology ]
Copyright issue unnecessarily scares genuine scholars
[ link to this | view in chronology ]
Harry Who?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Rowling...
[ link to this | view in chronology ]
Rowling of Copy of his work !!!!
[ link to this | view in chronology ]