Comments on Dan H's The Lexicon Issue: A Retrospective

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Arthur B at 15:40 on 2011-03-15
One of the strangest aspects of US copyright law I dug up in my recent trawling through the intarwebs was the notion of “fictional facts” - this was a key element in the Castle Rock case, in which it was ruled that authors (or in this case entertainment companies) do retain copyright over matters of fact in their fictional worlds.

This is indeed an oddity, and to be honest I think it's something that could happily have been avoided. UK law has evaded this by and large by looking at the work done by the producer of a copyright work, and considering how much the person producing the allegedly infringing work is freeloading off that.* In the case of someone writing a book, the effort involved entails does entail cooking up a bunch of fictional facts if you're writing fiction or researching a bunch of actual facts if you're writing nonfiction, but the key isn't whether you've replicated the same facts so much as whether you're using someone else's brainstorming or research to make your own job easier.

Two cases which help illustrate the point are Ravenscroft v Herbert and the Da Vinci Code case. In Ravenscroft v Herbert, James Herbert lost because The Spear was found to have infringed the copyright on a pseudoscientific book of kook history by Trevor Ravenscroft about the Spear of Longinus, because he took the narrative presented by Ravenscroft in the book and used it as the basis for the background and prologue of his novel. How Ravenscroft came up with his facts (a mixture of conjecture and psychic mediumship, as it turned out) wasn't relevant: the fact was that Ravenscroft had put in all this effort to put together this narrative which he put forward as being nonfictional, and then Herbert had simply taken that narrative and copied it wholesale without attribution or permission to get the basis for his novel.

In the Da Vinci Code case, on the other hand, the guys who wrote The Holy Blood and the Holy Grail sued Dan Brown on a similar basis and lost because they didn't show that Brown was freeloading off their work - the court deciced that he wasn't simply taking their narrative and replicating it in the book, but was using those facts and combined them with others (from other sources and of his own invention) to come up with his own work.

The point is that the "fictional facts" - or nonfictional facts - aren't the issue, the issue at stake is the effort that authors put into obtaining/inventing those facts and stringing them together. The Castle Rock guys would have probably lost in the UK too because all they did to make their trivia book was to pick answers out of the scripts and they didn't really put in much in the way of original effort of their own. Rowling can't sue you for making a sign saying "Snape Kills Dumbledore" because the amount of effort it actually took her to come up with that fact is trivial. A sign with extensive quotes from the actual death scene? Now you're talking.**

* This is also relevant to derivative works. If Vander Ark was writing all the text in all the entries in the Lexicon from scratch then it would have been extremely unlikely that Rowling would have been able to make anything stick if she'd sued in the UK. If he directly copy-pasted great swathes of her text, he'd be obviously trying to make a quick buck when she in fact had put in almost all of the work in producing the text in the first place. Obviously there's a big grey area between those extremes, which is why these cases are decided by judges and not machines, but one of the considerations would be how heavily Vander Ark relied on the effort Rowling originally put in. If he wasn't very, very clear about where he was quoting from the original text and where he was making up his own stuff that'd probably also count against him.

** It's actually interesting whether you'd fall down on copyright if you wrote a book about a wizard who happened to be called Harry Potter but who didn't actually have that much in common with the actual Harry aside from the name. Also academic, since Rowling would have a much easier time suing you for "passing off" - because you wouldn't be freeriding on the effort she'd put into establishing her characters and setting so much as you'd be trying to freeride on the reputation she had established surrounding the Harry Potter name.

the constitution trumps copyright last time I checked

Actually, it doesn't.

The Constitution in article 1, section 8 empowers Congress to, amongst a whole lot of other things, "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Granted, the First Amendment guarantees freedom of speech and of the press too, but both copyright and free speech are conceptually enshrined in the Constitution; neither can necessarily trump the other. (Also the "limited Times" bit is getting increasingly laughable...)

Copyright is one of those areas of law that everybody thinks they understand but in fact nobody does.

In my professional experience the better someone understands the copyright system, the more embarrassed they are by it. At the moment it is a complete shambles.

Also, bravo for coming up with the best explanation of copyright I've ever seen from a non-IP professional. I'll have to kill you to protect the Guild's aura of mystery but I'll keep it painless. :)
While it feels intuitively right that you shouldn't be able to make Harry Potter tie-in material without JKR's say-so, it's not immediately clear why

Maybe this is a case where it's more similar to a trademark: too many fictional works set in the Potterverse by people other than Rowling could constitute "brand dilution" or however they explain that. Although I'm trying to remember how it works for fictional characters/locations - you can have a cartoon mouse, but you can't make your own Mickey Mouse movie even if you give him entirely different adventures from his Disney* original, because the totality of the character is copyrighted. Or possibly trademarked. I'm not sure which. *really should remember this since I know I learned it*


*Speaking of the limited times bit "getting increasingly laughable..." Disney really, really doesn't want any of their copyrights to expire. And what a coincidence - copyright duration keeps getting extended, and Mickey is still private domain! This makes it even funnier that someone has made an educational film about copyright and fair use entirely composed of Disney clips: A Fair(y) Use Tale.
Dan H at 18:21 on 2011-03-16
@Arthur

Actually, it doesn't.


And the ironic thing is, I'm pretty sure I actually knew that. I think it's just that "the constitution trumps copyright" sounded punchier than "the American judicial system is generally pretty strongly invested in the idea of free speech, such that it seems unlikely that they would uphold the precedent that spoilering constitutes a breach of copyright, even though it might be argued to under current legal precedents."

@sunnyskywalker

*Speaking of the limited times bit "getting increasingly laughable..." Disney really, really doesn't want any of their copyrights to expire.


Yeah, so I've observed. It's difficult because I can sort of see that even really old copyrights do definitely have a *value* for Disney - the question is whether it's in the public interest for Disney to retain those copyrights.
Arthur B at 18:38 on 2011-03-16
And the ironic thing is, I'm pretty sure I actually knew that. I think it's just that "the constitution trumps copyright" sounded punchier than "the American judicial system is generally pretty strongly invested in the idea of free speech, such that it seems unlikely that they would uphold the precedent that spoilering constitutes a breach of copyright, even though it might be argued to under current legal precedents."

To be fair it is kind of an oddity because the First Amendment says that Congress absolutely isn't allowed to curtail freedom of the press, but then the powers it does invest Congress with to give authors copyright protection can't exactly be exercised or enforced without curtailing freedom of the press. It's almost like the Founding Fathers were fallible human beings who were kind of making it up as they were going along or something.

There is probably precedent law I'm not aware of which settles the contradiction.
Dan H at 23:09 on 2011-03-16
Presumably a big part of it is that "freedom of the press" is quite hard to define. I mean you could argue that requiring journalists to have any kind of ethical standards at all goes against freedom of the press.

I suppose the thing about it is that "freedom of the press" is all about the government not being able to stop particular stories or ideas from being published, there's a big difference between that, and trying to stop them from being published by *specific people*. I mean it's not censorship for the law to prevent newspapers from publishing articles which have been copied directly from other newspapers.
I guess that goes back to the debate over whether stopping people from shouting "fire!" in a crowded theater is not really restricting freedom of speech in some technical sense, or whether it is but it's an okay kind of restriction. If one newspaper copies another's articles verbatim, then stopping them doesn't actually kill the articles - they're still out there in the original publication. And sense it wasn't the copier's speech in the first place, their speech isn't being restricted. Or something.

One of the complicating factors with Disney is the person vs. corporation issue. It's much easier to see how an author benefits from a copyright which lasts for a certain percentage of his or her lifetime (or, if it's "life plus x years," the family can pay funeral costs, I suppose). Since individuals have limited lifespans, it's easier to grasp what might be a reasonable limit for copyright. It's a lot less clear when the copyright holder is a corporation which could exist indefinitely, other than "well, it would be better for the public for it to expire... sometime..." Although if they're legally supposed to be treated much like people, then they'll just have to suck up losing their copyright after 120 years max.
Robinson L at 15:15 on 2011-06-01
Speaking personally, though, I actually have a lot of faith in the conventional models of publishing, at least for the mass market.

Fair enough Dan, but I don't think much of your reasoning, as evidenced by this article.

Anecdotal evidence here at Ferretbrain supports the observation that self-published books really are less good than those that are published conventionally.

For the purposes of argument, I'll agree self-publishing tends to foster terrible writing a lot more than professional publishing. On the other hand, we've had plenty of evidence here at Ferretbrain that professional publishing also tends to foster terrible writing (check the first theme handle on this article). Professional publishing is less prone to it, but surely we can do better than this.

I'll go one step further. In response to one negative review of “Deathly Hallows” (I think it might've been Mike Smith's recap) somebody posted a link to a guy relating a conversation about editing. Basically, Party A argued that Stephen King's writing has gone to shit in recent years (anecdotal evidence here at Ferretbrain supports this observation) and that a good editor could make it much better. Party B rejoins that a good editor isn't going to touch a big name author because they'll rake in the cash anyway, and an editor's meddling might make the author sell less (or might coincide with the author's loss of popularity), or might piss the author off and convince them to take their business elsewhere. So now we have an example of a situation where the professional publishing system as it stands now actively blocks improvement rather than just enabling mediocrity.

Self-publishing obviously is not an improvement, but surely there's another possible system which could do better?
Dan H at 15:59 on 2011-06-01
On the other hand, we've had plenty of evidence here at Ferretbrain that professional publishing also tends to foster terrible writing (check the first theme handle on this article). Professional publishing is less prone to it, but surely we can do better than this.


Except that there's actually a world of difference between bad professionally published literature, and bad self-published fiction. Very little professionally published fiction is *actually incompetent* in the way that self-published fiction so often is. J.K. Rowling actually *isn't* that bad a writer - she's written a great many books that I personally dislike, and her writing is often pedestrian, frequenly overwrought and on very rare occasions actively clunky, but it is still genuinely head and shoulders above the vast, vast majority of amateur fiction.

The fact that somebody once said that Steven King had gone downhill and that somebody else suggested that this was because he'd got too big to edit is not evidence of any flaws in the publishing industry.

Once again, I'm very, very leery of any argument which assumes that popular things are only popular because the people who buy them are stupid sheeple. The publishing industry is not broken just because things I don't like are sometimes more popular than things I do like.
Arthur B at 16:10 on 2011-06-01
@Robinson: If you think another system would work better would you care to propose one? I'd argue that the number of authors who, like King and Rowling, could pretty much dictate terms to their publishers are in fact quite small. And the reason they got that way in the first place was that they gave the reading public what they wanted.

The problem isn't instituting a system which prevents crap books from being published, because you can't, not in a way which isn't totalitarian. The problem, as a reader, is in tracking down books which you personal would enjoy and want to read. The world of professional publication is actually quite good at helping you do that, because publishing houses want to target the books they publish at those sections of the public who'll pay money for them, and even if your particular niche isn't catered to by the major publishing houses there will be niche small press publishers who are more than happy to crank out the sort of book you want. And on top of that, the more widely distributed a book is, the more likely it is that you'll have reviews to use as a guide.
Robinson L at 00:00 on 2011-06-02
Okay Dan, that strikes me as a more compelling argument. I'm not really interested in arguing the the merits of the current publishing industry versus a hypothetical alternative model – I just found your argument as presented in the article rather unconvincing. Thank you for clarifying.
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