Harry Potter and the Order of the Fair Use Factors

(I apologize for my lame title. I tried though)

Happy Fair Use/Fair Dealing Week! Okay, I guess it was last week but it’s always a good time to talk about fair use and fair dealing! Stanford University has an awesome overview of fair use and the four factors that govern fair use . The interesting thing about fair use is that it can only truly be determined by a judge in court. If the owner of the original work (the copyright owner) doesn’t agree with how you’ve used their work, only a judge can rule if it follows fair use guidelines or not. It’s a case by case issue and is usually pretty subjective. Standford also provides some interesting overviews of some fair use cases over the years. The one I’d like to dive into today is the famous Harry Potter Lexicon case (Warner Brothers Entertainment vs RDR Books).

A little overview 

This Guardian article does a great job of giving a detailed summary of the case but I’ll do a little overview as well with some personal notes.

Back in 1999, a  Harry Potter (HP) fan by the name of Steven Vander Ark created an online fan site called the Harry Potter Lexicon. I remember using this lexicon when I was reading the books to refresh myself on certain characters or spells and when I was part of another Harry Potter fan club online, I would use the Lexicon quite often as a reference site. The HP Lexicon is quite comprehensive, has a large community, and now has 700+ pages.

In 2007, Vander Ark signed a book deal with RDR Books (a small press in Michigan) to publish a part of the Lexicon. This resulted in J.K. Rowling and Warner Brothers taking RDR books to court, and the judge ruled the Lexicon to be not fair use. This is the Stanford site’s summary on the case:

“Not a fair use. Although the creation of a Harry Potter encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), this transformative quality was not enough to justify a fair use defense. Important factors: An important factor in the court’s decision was the extensive verbatim use of text from the Harry Potter books. (Warner Bros. Entertainment, Inc. v. RDR Books, 575 F.Supp.2d 513 (S.D. N.Y. 2008).)”

However, in 2009 Vander Ark was allowed to publish a different version of his Lexicon that addressed some of Rowling’s grievances in court. It seems like he edited out direct passages from the original HP books and added more of his personal commentary on it.

My opinions

First a  question though… why was Warner Brothers involved in this? The Lexicon only deals with the HP books and not the movies. That’s one of the ways they differentiate themselves from the Harry Potter Wiki. I couldn’t really find an answer to this, so I’m guessing it’s because Warner Brothers has rights to the Harry Potter franchise as a whole so this case would affect them as well.

So how do I feel about this? As with most of the fair use cases, I have mixed feelings.

It bothers me that the Lexicon became an issue only when the Vander Ark decided to publish it into a book and try to make some money off it. In the Guardian article, it states that before the lawsuit, the site was continuously praised by Rowling herself and even her publishers sent the Lexicon thank you letters for the good work they were doing.  As soon as it was going to be a monetary thing, views changed. I think this was a little unfair for fans who love a work so much but also want to generate some income for the hard effort they put into their fan-work. The Lexicon isn’t going to take away any sales from the Harry Potter books themselves. In fact, I doubt anyone will even buy the Lexicon without buying or reading Harry Potter first.

Factor four of fair use looks at “the effect of the use upon the potential market”. It looks at whether the work “deprives the copyright owner of income or undermines a new or potential market for the copyrighted work.” I do not think the Lexicon will deprive Rowling of income. In fact, it directly contributes to her sales of more books! However, I do see that Rowling has every right to create her own encyclopedia/reference book of her own world. And I do understand that if Rowling was a smaller, less famous author…someone else creating a reference book could potentially take away from profits that could have been generated by the original creator themselves.

However, I appreciated that the court recognized the importance of reference and guide books – I personally could not have gotten through high school English without reference guides to Shakespeare and Ulysses. This was one of the statements after the Lexicon case:

“We are encouraged by the fact that the Court recognized that as a general matter authors do not have the right to stop the publication of reference guides and companion books about literary works.”

I’m glad the court allowed Vander Ark to publish a different version of the Lexicon. I think that was a fair ruling. It is still strange to me though that the site is allowed to stay up and remain unchanged. I think this is a weird double standard that remains when it comes to what’s allowed on the web and what’s allowed in print that. This issue will only become more and more pertinent as we continue publishing things that have originally been found online (such as webcomics and fanfiction).

Overall, I have mixed feelings about this case. It seems like Vander Ark still remains a huge Rowling and Harry Potter fan and the site is still running and providing fans with information as well, and that is still important!

Stairway to Court: Copyright Infringement, Sampling, and Led Zeppelin

Led Zeppelin almost made it to heaven, before being dragged back into the courtroom September 2018 for a revisit of their 2014 court case with the band Spirit. Led Zeppelin has been accused of plagiarism by the band Spirit for infringing on the copyright of their 1968 instrumental track “Taurus” and using the guitar riff in their 1971 classic-rock staple “Stairway to Heaven.” Spoiler, the court ruled in favour of Led Zeppelin. However, when you listen to the two tracks, Spirit’s “Taurus” sounds rather familiar and I can definitely make out the cords that Led Zeppelin hijacked. Except, it’s only a very small portion of the song that sounds borrowed… maybe 10%? Fair dealing, right? But that’s for a judge to decide. The thing is that music, like many other art forms, has been a practice of creative borrowing, building, and remixing since the beginning and in the digital age we live in it’s so much easier to go on Youtube or social media to see (or rather hear) that everything sounds like something else.   

Lawsuits within the music industry and the infringement of copyright on songs is nothing new, and artists are constantly borrowing from others to remix their own new tunes. In a society that wasn’t so bent on turning a profit and more focused on exploring artistic expression this kind of sampling and remixing wouldn’t be seen as such an issue and artists would be able to build off one another to create new and interesting songs. Even doing covers of songs is a popular method of “copying” which can result in some really great tunes that are sometimes better than the original.  Of course what separates that from blatant IP stealing is getting the permission from the artist (and their record company) and paying them off to use their original content. Where it becomes murky is when artists borrow and aren’t transparent with where they got their content from (intentionally or not) and the song becomes a hit. Then there are the artists who simply shrug off the similarities while others give extensive credits.

Whether they are doing it as an homage to the original artist or if they’re just ripping them off, one of the most problematic methods of borrowing in music is called sampling. Sampling is taking a portion, or sample, of one sound recording and reusing it as an instrument or element of a new recording, and hundreds of famous artists sample from others, there’s even an app called WhoSampled that helps you uncover the DNA of your favourite songs. There are two camps in the world of sampling: those who view sampling as a lack of creativity or those who see it as a sincere form of paying homage to previous works. The record labels are always in favour of grabbing more money, and when music is sampled without permission they’re happy to sit in the first camp.

Musicians will continue to borrow from one another and the lines are becoming increasingly blurred which points to a revision on the copyright laws surrounding music. The fear for smaller, unknown artists is that their work can simply be ripped off by the bigger, multi-million dollar artists who borrow riffs that become iconic without a penny going to the artists who originally wrote the lyrics or set the rhythm. Once again, it’s money that becomes the sore point for artists.

Everyone vs. Google

Taking a company to court like Google to fight a fair dealing violation would take time and money, that many small to medium sized companies don’t have. Giants tech monopolies like Google have so much power that they can seem invincible and based on the fact that a fair dealing claim can only be resolved if it is taken to court and weighed in on by a judge, there are likely countless infractions that people and companies just haven’t been able to do anything about. Our system of fair dealing may be a bit flawed, let’s dig into one case to see what’s happening.

About Oracle

Oracle America, is one such company that decided to stand up to Google. It’s important to note however that  Oracle is definitely not a small company. It’s very large information technology firm with over 10,000 employees focusing on cloud software and automation. It makes sense that Google would have Oracle on it’s radar and is likely keeping a close eye on the systems that they are developing. One such API that Oracle created, must have caught Google’s eye because they started to use it without authorization. Let’s take a closer look at the Oracle America fair dealing case versus Google.

The case: Oracle American, Inc. v. Google, Inc. 

In summary, the case took a detailed look at Google’s use of Oracles “Java API packages”. It was rules that Oracle’s APIs are protected under copyright law therefore the case went to court to decide whether or not Google used the API fairly. After some back and forth, the final court ruling was in favour of Oracle, and Google faced the damages.

I agree with the courts ruling based on an assessment of the four factors of fair dealing. In the words of the Stanford case summary, “Google merely copied the material and moved it from one platform to another without alteration, not a transformative use.” I cannot comment on the exact usage quantity or substantiality of the work that was used given the details available about the case but I believe the other factors of fair dealing make a compelling case on their own especially when we look at the effect on the market. Though the case summary does not go into specific detail about the “actual and potential” damage that this case of copyright infringement entails, one could venture that Google is stealing market share from using the API without authorization; neglecting to pay for the use of the API would hinder Oracle’s sales; and depending on the function of the API itself it could give Google a competitive advantage in certain areas of the market which again could lead to a loss of market share to Oracle.

Implications

Though I agree with the ruling of this case when it comes to looking at the facts and ruling based on the established fair dealing standards, there are  implications that are worth discussing.

If foundational role of copyright law is “To promote the Progress of Science and useful Arts” than this case may be an example of a failure of the system. As the wikipedia page for this case outlines, the ruling of this case could impact the compatibility between interfaces and software. API’s are generally a way for systems to interact and stopping their fair use could pull innovation to a halt in the IT sector that has often relied on software being open source. Because of this ruling, developers may feel pushed to protect their API’s making them incompatible with other systems,

“moving away from the current trends in software development which have focused on improving interoperability between different services allowing apps to communicate with one another, creating more integrated platforms for end users.”

Though on paper the Oracle vs. Google case seems to have been rules fairly, I believe it warrants a larger discussion on our fair dealing and copyright systems to ensure that innovation and progress is not blocked for the sake of holding onto market share. Profit shouldn’t be the only driving force behind copyright protection. It’s hard to side with Google on this one, since they are so big it seems like they can step over anyone and use whatever they want in order to retain their position as one of the biggest tech giants in the world. But since each case cannot be take in isolation, this case sets precedent for the sharing of API’s among much more humble  companies. Would this fair dealing ruling service those smaller companies? I’m not sure if it would.

Great Minds vs. FedEx Office Print Services

On October 2, 2017 a legal dispute between Great Minds and FedEx Office & Print Services was submitted to the United States Second Circuit. Great Minds was suing Fedex for copyright infringement as it was found that FedEx had reproduced educational material copies of Great Minds on the request of the school district. The educational material had also been made available to the public through the Attribution-NonCommercial 4.0 International Creative Commons license. In March 2018, the courts had dismissed the case brought forth by Great Minds indicating that public license does not explicitly address whether commercial services could be used for the licensees non-commercial uses.

Based on both the four factors of Fair use and the Creative Common (CC) License, I would agree with the courts ruling regarding this case. Under the CC the licensee is free to share and adapt the material with the stipulation that it should be properly credited and for non-commercial use. In which case, FedEx had followed these as they were simply acting as the agent of the school board who is using the copies for educational purpose. Under the Fair Use, FedEx did not breach the license by producing the copies. Again, given its educational non-commercial nature, it does not have any real impact on the market. Additionally, given that the school board is licensed;  there was no distinction of who (staff or otherwise) could reproduce the material. After reviewing the case, I do wonder why Great Minds would have chosen to take legal action against FedEx over the school board.

Dr. Seuss vs. Dr. Juice

Published by Penguin in 1996, the book The Cat NOT in the Hat! A Parody by Dr. Juice told the case of O. J. Simpson using the elements from Dr.Seuss’s The Cat in the Hat. The publisher and the author were sued for copyright infringement later. It was determined by the Ninth Circuit Court of Appeals as “not a fair use”.

Let us first look at how alike they are.

Here is the original cover:

And here is the cover of “the Cat NOT in the Hat!”:


Obviously, the two covers share a similar design style. Their title occupies the right half and the figure occupies the left half, facing towards the title. Also, the font of the title mimicked the original font. As for the illustration of the figure, both characters wear the red and white striped hat.

Inside the book, Dr. Juice is using the rhymical style of Dr. Seuss to retell the story of O.J. Simpson. For example, “A man this famous/ Never hires/ Lawyers like/ Jacoby Meyers/ When you’re accused of a killing scheme/ You need to build a real Dream Team”.  The court believed that Dr. Juice’s work copied substantially from Dr. Seuss’s work.

But, on the cover of Dr. Juice’s book, it clearly claimed itself as a “parody”. Is it a fair use if the book is a parody? More essentially, is it a parody as it claimed to be?

As we mentioned, Dr Juice’s book told the case of O.J. Simpson using the rhymical style of Dr. Seuss. The story inside the book is not relevant to the original work. According to the court, “The work was not a parody, because it did not hold up Dr. Seuss’s style, but merely mimicked it to attract attention or avoid the difficult work of developing original material”. The book is non-transformative.

Also, the book was published for profit which was clearly commercial. Due to the commercial nature of the book, the court inferred that there would be harm to the market of the original work. Dr. Juice and his publisher failed to provide evidence to go against the inference of the court.

Therefore, the court finally decided it as “not a fair use”.

In conclusion, I agree with the court’s decision. The lesson to learn here is that to be fair use, a parody is supposed to mock the author or the content of the original work. If the content of the parody is nothing related to the original work, then it is more likely to be decided as not a fair use.

Works Cited

Dr. Seuss Enters., LP v. Penguin Books USA, Inc.,109 F.3d 1394 (9th Cir. 1997) https://www.copyright.gov/fair-use/summaries/drseuss-penguinbooks-9thcir1997.pdf

Satire or Parody? Dr.Seuss Enterprises v. Penguin Books USA

Satire or Parody? Dr.Seuss Enterprises v. Penguin Books USA

 

 

“The Law is Reason Free from Passion.”

In the fair use case of Salinger v. Random House and Ian Hamilton, Ian Hamilton, a literary writer and biographer proceeded with writing a biography of renowned author J.D Salinger, author of the famous The Catcher in the Rye, after Salinger refused and told Hamilton that he did not want a biography written about him as long as Salinger was alive. This project was to be published by Random House and hoped for Salinger’s partnership and consensus. However, Hamilton continued on with the project and ended up paraphrasing multiple unpublished letters from Salinger. Thus, this case explores the issue of whether Hamilton had “fair use” of Salinger’s unpublished letters.

According to the court case summary, the district court “granted a temporary restraining order in favour of Salinger but subsequently issued an option denying a preliminary injunction” (Stanford University Libraries, 1987). The district court saw the reasoning for Hamilton’s copying of “expressive material” as needing minimal copyright, and acted in accordance to the Copyright Act. The circuit court later reversed this decision from the lower court and ruled the outcome of this case as such: the publishing of Salinger’s unpublished letters was not fair use (Stanford University Libraries, 1987).

I’ve learned in my PUB 802 technology seminar class that the person who ends up deciding if a situation is fair use or not is from the decision of a judge. I think the process is quite subjective, but alas, “the law is free from passion” (Aristotle). There are four main factors when determining the fair use in a case: 1. Purpose of the use, 2. Nature of the Copyrighted Work, 3. Amount of Substantiality of the Portion Used, 4. Effect on the Market. Based on the court summary, only the first factor is in Hamilton’s favour, so I’d like to explore this factor here. Hamilton reveals in his deposition during the court case that he wanted to use Salinger’s letters to “enrich his scholarly biography.” Without a doubt, the letters become the crucial basis to the biography, that the biography would not be completed or successful without them. However, the central focus on the letters demonstrates that there is almost a need for capitalizing on the interest of Salinger’s letters than the actual art of bio-ing him as an author or subject. A purpose that ultimately focuses on capitalizing an idea to which there are profits that go to Hamilton or subsequently Random House does not seem like a true, honest, and worthy project to deem fair use. The nature of the letters is that although they can be found in many public university libraries for people to read, Salinger never authorized the reproduction of them in any way during his livelihood. Hamilton even signed forms which depict his restriction to making use of the letters without the libraries’ or author’s consent (which is Salinger here). Hamilton had no permission to republish or make use of the letters in his own creative endeavours, so how could it be fair use here?

I think that fair use cases will always be subjective, especially in a literary and creative field like publishing. Overall, I think it’s unfair and will never be fair for a person to use someone’s work, against the subject’s freewill and agreement, for his/her own selfish, capitalizing, goal. I understand if a writer wants to include sources to increase the credibility of the work, and it’s often important to include voices and opinions within the community that are knowledgable on the topic. However, with something as personal as letters, who Salinger wrote to his close friends and families, it seems insensitive to exploit such intimate conversations. There were many letters that were not circulating in the university libraries, so if they were published, they would have been paraphrased by a writer who is not involved with these conversations or knows the backstories to them that the public would read about. Who is Hamilton, a guy who isn’t truly related or connected to Salinger to have the power to become Salinger’s voice to tell his life story? Perhaps there can be positive intent to be considered, but I’m glad this case worked in favour of Salinger. Now where can I get a copy of the letters so I can see what I’m missing out here?

Works Cited

Stanford University Libraries. “Salinger v. Random House and Ian Hamilton” Use. https://fairuse.stanford.edu/case/salinger-v-random-house-and-ian-hamilton/. Accessed 3 March 2019.

 

Fair Use in the digital Age

We are living in an age where content can be created and shared online within seconds. Thankfully, copyright laws allow people to protect their ideas and creations in a time where it would be extremely easy for Internet users with bad intentions to take someone else’s work, pass it off as their own, and sell it or profit off of it. However, sometimes copyright issues can get complicated. The concept of fair use (called “fair dealing” in Canadian law) can be hard to define when it comes to the possibilities that new technologies give us.

This can be seen in the lawsuit against the comedian YouTubers behind H3H3 Productions channel, who mostly make “reaction videos.” These are videos where both hosts, Ethan and Hila, make fun of other Youtube videos and channels. They usually show short clips of the video they are discussing while making jokes and critical commentaries in between. They are a very popular channel with approximately 2.6 million subscribers. In 2016 they were sued by Matt Hoss, another YouTuber comedian. H3H3 posted a video making fun of one of Matt Hoss’s videos, and they showed some of his video clips. Matt Hoss filed a suit claiming copyright infringement. The Kleins argued that it fell under the “fair use” clause in U.S. copyright law. Fair use states that there are some cases in which you can use someone else’s material without their permission. For example, if you are only using a few parts of someone else’s video and you are doing a parody of it you could argue it is fair use.

When it comes to fair use four factors are considered by the judge in charge of the case. He or she looks at the purpose of the work, the amount of copyrighted content used, and the effect of the use of the content on its potential market.

The purpose of the video posted by H3H3 was to parody and ridicule one of Matt Hoss’s video. The Kleins took only around 3 minutes of Matt Hoss’s video and embedded it in their 14-minute video. They used different clips of his video with their own commentary in between. Regarding the nature of the original work, Hoss’s video was a published work which gave Matt Hoss less reason to defend his copyright claim than if it were an unpublished work.

In terms of the effect, since Klein’s video does not include any wrong statements, it results in not having any “actionable opinion” that makes the purpose of the work not harmful. Even though the Kleins criticized Matt Hoss’s using a lot of intense and brutal words in his videos, the judge mentioned that they are rough equivalents to the commentary and criticism that might happen in a film studies class. Therefore, it is not a market substitute for Matt Hoss’s video.

The Kleins won the lawsuit and they set a precedent for future reaction videos since this was the first time that a case like this had been heard in the US. I still wonder whether this situation needed to go to court. People in this digital age are creating a culture all the time and not because of any monetary incentive, and that creation can be shared everywhere and at any given time. Strict copyright laws might be restricting people’s creativity in the digital age.

CBS and Paramount Pictures versus Axanar Productions

….or The Rule of Acquisition #74: Knowledge Equals Profit

In 2014 Axanar Productions posted a 20-minute Star Trek fanfiction movie to on YouTube. It was a short teaser for a 90-minute yet to be released fan film called Axanar. For decades Star Trek fans have been making fanfiction without issue but studio concerns were raised once professional actors, detailed props, and authentic looking costumes were introduced. The year after the short was release the studios filed a copyright infringement lawsuit claiming that it exceeded fair use standards by appropriating works such as the show’s original mise-en-scène, characters (and their relationships), themes, as well as alien species (Mele, 2017).

Continue reading “CBS and Paramount Pictures versus Axanar Productions”

Rentmeester v. Nike, Inc.: A Tale of Two Photographs

It was the best of poses, it was the… well, it’s a pretty iconic pose. In modern media, you’d be hard pressed to find someone who didn’t recognize Nike’s “Jumpman” logo. Even if you wouldn’t know to call it the Jumpman, you’ve seen it if you’ve ever seen a pair of Air Jordans, or any of the (excessive) merchandising that’s been done connected to the Air Jordan image/brand.

The logo was made using a silhouette produced from an actual photo of Michael Jordan, commissioned by Nike sometime before 1988, when the logo was first used by the company. It’s hard to assign a dollar amount to the value of that image, but certainly, culturally, it’s been accruing cache internationally for the last three decades, and has become synonymous with the Air Jordan brand.

Enter Jacobus Rentmeester. The year is 2015, and the photographer has just filed a copyright claim against Nike, Inc. claiming that the photograph they commissioned, which the Jumpman logo was created from, constituted a plagiarization of his original photo. Did you follow that? According to Rentmeester’s line of thinking, his photo—let’s call it Photo A (of Michael Jordan, originally published in TIME magazine in 1984)—provided the concept and raw material for Nike’s commissioned photo—Photo B—which begat the Jumpman logo.

It’s not an entirely unreasonable claim. Many things between the two photographs are (at least) similar. Both photos are of Michael Jordan; compositionally, both feature a figure to the left of a basketball hoop, jumping towards the hoop, ball in hand. In both photos, the player’s legs are splayed impossibly wide, and the camera is positioned slightly lower than eye level, so that the viewers looks up towards Jordan. This gives Jordan a sense of being larger-than-life, daunting, even superhuman. The lighting in both photos is also similar: in both photos, Jordan is backlit, which creates a high-contrast visual effect, which in turn contributes to a feeling of monumental drama.

There are also some differences between the photos: Nike’s commissioned photo has a closer crop than Rentmeester’s, and the subject (Jordan) is smack in the middle of the photo. Rentmeester’s photo was originally part of a magazine spread, which by good sense dictated that Jordan had to be one side of the photo. Jordan’s physical position is also subtly different. In Rentmeester’s photo, Jordan’s right hand is raised, while in Nike’s photo, his right hand is stretched out behind him. In both photos, Jordan’s right hand is stretched wide open, but this is much easier to see in the Nike photograph.

The two photos also tell a slightly different story: in Rentmeester’s photograph, the focus is squarely on Jordan’s athleticism. The horizon is a grassy hill in the foreground, and  he is wearing plain athletic wear. Altogether, the main thrust feels like a passion for the sport—the only things that exist in the world of this photograph are a basketball player, a basketball, and a hoop. In Nike’s commissioned photo, on the other hand, a silhouetted city skyline is in the background. Jordan occupies the center of the photograph, decked-out in flashy, colour-coordinated sportswear (and, conspicuously, Air Jordans). The story here is a superstar basketball player in an urban setting.

The case concluded in February 2018 with a ruling against Rentmeester’s claim. The court panel and jury analysis is a little hard to parse without a firm grasp of legal jargon, but essentially the salient idea was that the “expression of the pose” did reasonably belong to Rentmeester, but that the photos were ” as a matter of law not substantially similar” (Stanford University Libraries, 2018).

 

It’s difficult to respond to the ruling without having a firm understanding of the information or decision-making process, but I think this case presents a very interesting question. We’ve accepted that a photograph is the property of the photographer, but what about the contents of that photograph? It reminds me of the basic copyright principle that a person doesn’t own an idea, but the unique expression of that idea. But how does that apply to a photograph? If the idea is the subject, the pose, and the basic composition of the photograph, couldn’t the unique expression be the combination of all of these things? In this case, the law would say no. As for my opinion, the jury is still in deliberation.

Works Consulted

Stanford University Libraries. “Rentmeester v. Nike, Inc.” Copyright and Fair Use. https://fairuse.stanford.edu/case/rentmeester-v-nike-inc/. Accessed 1 March 2019.

Esquenet, Margaret A. “United States: Photographer Sues Nike for Copyright Infringement of Iconic Jordan Logo.” Mondaq. http://www.mondaq.com/unitedstates/x/377138/Copyright/Photographer+Sues+Nike+For+Copyright+Infringement+Of+Iconic+Jordan+Logo. Accessed 1 March 2019.

“Jumpman (logo).” Wikipedia. https://en.wikipedia.org/wiki/Jumpman_(logo). Accessed 1 March 2019.