Fair Use, Copyright and Rowling (Again)

Ms Rowling plans to testify in the case of Warner Bros. Entertainment and J. K. Rowling v. RDR Books where the author and Warner Bros. are trying to prevent a small publisher from publishing 'The Harry Potter Lexicon'.

The case hinges on fair use and where fair use becomes copyright infringement. Under the law, 'in determining whether the use made of a work in any particular case is a fair use the factors to be considered include —
(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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.'

A few issues come to mind when one thinks of this:
1. Can content which accompanies some other work and which has been published online and endorsed by the copyright holder of that other work subsequently be accused of violating copyright simply because the author of the second work plans to publish it in a more traditional manner?
2. What is the relationship between an online work available to readers without charge and a book sold to readers both of which contain the same material?
3. Can a copyright holder actually stop the publication of a companion work considering that the copyright in the original work does not extend to preventing the publication of companion works? Can a copyright holder legitimately claim that their work has merely been repackaged? And can that claim be made after the work has already been endorsed by the copyright holder?

The New York Times [1] says that 'though the case pits a billionaire author against a tiny publishing house, the Potter fan base seems to have little sympathy for RDR' although in an earlier article, [2] it described Ms Rowling as a copyright hog. I find that surprising considering that most Harry Potter fan sites exist in part due to the right of fair use. And I'm not sure if such a work in which an author has put a substantial amount of effort into can infringe a copyright simply because it's not a available at no cost to readers.

Links:
[1] http://www.nytimes.com/2008/04/14/books/14potter.html?_r=1&ei=5090&en=960332b363f2f96c&ex=1365912000&partner=rssuserland&emc=rss&pagewanted=all&oref=slogin
[2] http://www.nytimes.com/2008/02/09/business/09nocera.html?_r=1&ref=business&pagewanted=all

Link: What is Fair Use?

Title 17 of the USC speaks of fair use as follows:

107. Limitations on exclusive rights:Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.In determining whether the use made of a work in any particular case is a fair use the factorsto be considered shall include —(1) the purpose and character of the use, including whether such use is of a commercial nature or isfor 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; and(4) the effect of the use upon the potential market for or value of the copyrighted work.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [4]

Quoting entirely from a blog I just came across:
http://whatisfairuse.blogspot.com/

“In connection with Peter Friedman’s Legal Analysis & Writing Course at Case Western Reserve University School of Law, the students are writing cross-motions for summary judgment in a fictional lawsuit brought by ASCAP and the owners of the copyright to “Que Sera, Sera (Whatever Will Be, Will Be).”
The Plaintiffs (represented by half of my students) allege infringement of their copyright in Que Sera, Sera by the KLF, the creators of a recording entitled “K Cera Cera.”
K Cera Cera (mp3) purports to be a recording of the Red Army Choir singing an amalgam of Que Sera, Sera and John Lennon and Yoko Ono’s Happy Xmas (the War is Over). The Defendants also include Arista Records, the U.S. distributor of K Cera Cera, and Arista’s corporate parent, Sony BMG. The second half of my students, of course, represents the Defendants.”

Fair Use, Copyright and Rowling

In an article which focusses on Warner Bros. Entertainment and J. K. Rowling v. RDR Books and refers to Ms. Rowling as a ‘copyright hog’, Joe Nocera speaks of how the author has been trying to extend the scope of copyright protection beyond the bounds which the law recognises.He ends by saying:
“During my conversation with her representative, Mr. Blair, he pointed me to Ms. Rowling’s Web site, suggesting that would be the best place to find her response to the RDR Books case and the Harry Potter Lexicon. “You have our permission to quote from her Web site,” he said.I already have that right, Mr. Blair. But thanks anyway.”
Link: http://www.nytimes.com/2008/02/09/business/09nocera.html?_r=1&ref=business&pagewanted=all