Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

02 November 2007

link to: 08:35 [GMT-8]

Accio Lawsuit!

As noted in many, many places, J.K. Rowling has had a suit filed in her name to enjoin publication of a Harry Potter "lexicon" by a third party. There is both more and less here than meets the eye. Although I sympathize with Professor Patry's frustration (and I withhold judgment on whether the "lexicon" constitutes fair use, because I haven't seen it), I can't agree with much of his analysis... primarily because I think that the real party driving this lawsuit has used Polyjuice Potion on the caption.

Compare the copyright notices in the front of the Harry Potter books in their US editions:

Harry Potter and the Sorceror's Stone (book 1):
Text copyright 1997 by J.K. Rowling
Illustrations copyright 1998 by Mary GrandPre
All rights reserved.

Harry Potter and the Deathly Hallows (book 7):
Text copyright 2007 by J.K. Rowling
Illustrations by Mary GrandPre copyright 2007 by Warner Bros.
HARRY POTTER & all related characters and elements are TM of and copyright WBEI
Harry Potter Publishing Rights copyright J.K. Rowling
All rights reserved.

I really don't think this lawsuit is being driven by Joanne Rowling.¹ I think this is Warner. And I think is it being driven by trademark law's "rabid Rottweiler" nature: "defend against even fair uses or lose it."

It is also an artifact of two huge problems with copyright doctrine.

The Second Circuit's dubious jurisprudence on copyright in "characters" during the 1920s through 1950s, particularly related to Tarzan (which is more relevant/damaging in this instance than the even-more-inexplicable Sam Spade cases); and
The willful refusal of the publishing and film industries to acknowledge that the 1976 Act worked fundamental changes on the then-judge-made law of fair use that at least required a ground-zero rethinking of the Tarzan/Spade amoeba (it's too bloated and indistinct to call it a "line of cases"). IMNSHO, Air Pirates is no longer good law after the 1976 Act, let alone 2Live Crew, and therefore Dr Seuss v. Penguin is wrong, too... or, at least, the authority on which it was founded is no longer valid.²

Finally, it is also a problem in civil procedure more than it is in substantive IP law (whether copyright or trademark, or even some nebulous theory of "unfair competition" or "interference with contractual advantage"). If trademark is the better rubric — and is actually driving the plaintiffs' actions — why is it a copyright case? Primarily, because the remedies available are vastly better in copyright matters, due to civil procedure considerations. For one thing, it's a lot harder to get an award of attorney's fees in trademark actions (requires an "exceptional case") than in copyright actions (Fogerty factors... and if infringement was willful, then it's virtually a given). For another thing, the statutory damages available in a copyright action are a lot more generous than in a trademark action. Then, too, the standard of proof in a copyright action is a lot more favorable to a plaintiff: Strict liability as to copying, with fair use being a preponderence test (but defendant's burden of persuasion), versus preponderence of confusion requiring presentation of expert evidence in all but the clearest cases for trademark matters, which also cunningly shifts the burden of proof from the defendant to the plaintiff on the equivalent of a fair-use defense.

So, until we see some more pleadings, we cannot really judge what is going on here, or who is responsible for it. Or, as seems more likely, irresponsible, but that's a much longer digression indeed.

And looking at the counsel list makes me think even less that this was Rowling... which is not an aspersion on counsel, but a comment concerning the pattern of the types of clients represented by counsel.
Ordinarily, I'd put a link to my long compilation/essay on character copyrights from a couple of years ago. However, I'm in the process of substantially revising it for another medium, and I'm also changing over the domain on which it is hosted, so for the present you'll just have to search for it on Google to be certain of finding it.

Labels: copyright, intellectual property, jurisprudence, mass media, publishing

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Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (UC-Irvine)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Michael Madison (Pitt Law)
- Professor Rebecca Tushnet (Georgetown Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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