If you are a writer, a publisher, a California copyright attorney, a literary agent or lawyer anywhere from Corona del Mar, Rancho Mirage, San Diego, California Orange County, CA, Los Angeles, Malibu, La Jolla, Del Mar, Encinitas, Carlsbad, Oceanside, San Marcos, Vista and Escondido or the cities of Huntington Beach, Yorba Linda, San Clemente, Buena Park, Anaheim, Santa Ana, Costa Mesa, Irvine, Newport Beach, Laguna Beach, and Laguna Hills, Santa Barbara, San Luis Obispo, Buena Park, Temecula, Indian Wells, La Quinta, Palm Springs, or Palm Desert, you will be interested in a recent case involving the Harry Potter author, J.K. Rowling. This is an important decision for writers, copyright attorneys, and literary lawyers everywhere.
In September 2008, a New York judge handed down a decision in favor of author J. K. Rowling and Warner Bros. who own the film rights in the Harry Potter books, in a literary and copyright law case involving a fan website that was planning on publishing a reference book on the Harry Potter saga.
What the ruling determined was that the reference book simply copied too much of the Rowling books to be considered fair use. The fact that what was copied was creative material as opposed to factual material, also hurt the website’s case as creative material enjoys a higher level of protection.
What the ruling does is to reiterate the rule that for a derivative book to enjoy the fair use protection under the law, it must be very transformative. It must create something else. Instead, the judge found that the reference book copied Rowling’s distinctive style and words in excess of what would otherwise be legitimate to create a reference guide.
The ruling does nothing to dilute the right of parody or literary criticism to be protected by the fair use doctrine. Rather, the ruling may elevate the importance of the “market impact” factor in the four part standard used by judges in evaluating fair use.
Those four factors are first, the purpose and character of the use (is the new work transformative into something different – in this case use of material from two companion reference books of Rowling made the website reference book less transformative). While another part of this factor is whether the use is commercial or noncommercial, most uses are for profit. Another part of this factor is whether the infringer acted in good faith or not.
The second factor is the amount and substantiality of the use, i.e. whether the amount of the use by the infringer is reasonable for the transformative purpose. Here, apparently, it was not.
The third factor is the nature of the copyrighted work, creative works being given much greater protection than factual works.
The fourth factor is the harm to the market of the original work by the infringing work. Here the court found that while the website reference book might not harm the market of the Harry Potter novels, it might very well harm the market of Rowling’s companion books.
Consequently, the New York judge issued a permanent injunction against publication of the website reference guide. The decision may be appealed and it is possible if the website reference book were edited, it might pass muster. But in this copyright lawyer’s opinion, the success of an appeal or an edited book to pass muster as being fair use is unlikely under these circumstances and as a result of this ruling infringers in California and the U.S. will now have an even harder time trying to make a profit off of another writer’s work.
If you have a publishing, literary, or copyright infringement law issue in San Diego, Newport Beach, Irvine, Orange County, La Jolla, in the Inland Empire, Los Angeles, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your Malibu Copyright Lawyer and your Palm Springs and San Diego Publishing Attorney. Be sure to hire a California law firm with literary and copyright infringement law experience who can serve areas such as Los Angeles, Palm Springs, Palm Desert, Anaheim, Irvine, Beverly Hills, Malibu, Newport Beach, Carlsbad, Corona del Mar, Laguna Beach, Huntington Beach, Santa Ana, Rancho Cucamonga, Ontario, Fullerton, Del Mar, San Diego, Orange County, San Luis Obispo, Buena Park, La Jolla, Oxnard, Ventura, La Quinta, and Santa Barbara so you are properly represented and get the compensation you deserve.
If you have a publishing or copyright law issue of any kind, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com and learn how we can assist you.