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Gaiman, Joint Authorship and Transformative Works
I know Neil Gaiman ended the title to his latest post with “...before we leave the subject forever” , but, his comments brought up in my mind two things that might help clarify a bit the complex issues both in Mr. Gaiman's and Ms. Rowling and Mr. Vander Ark's cases.
Gaiman v. McFarlane and the issues of joint work authorship
Neil Gaiman is right in that the majority of citations to Gaiman v. McFarlane refer to the statute of limitations part of the decision. But there was another key development within the case that has opened a question of dramatic importance in the murky area of determining authorship in jointly created works. Posner recognized the unique question the case posed on this topic, “But where two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright.” (Gaiman v. McFarlane, 360 F.3d 644,658-9 (7th Cir. 2004).
It is traditionally required that an author must bring sufficient originality and creativity to a work before it becomes copyrightable. Not much is required, but, it is not trivial, especially in the harder to establish areas of copyright such as creating fictional characters. The finding in Gaiman's case on the issue of uncopyrightable joint labors producing copyrightable end products is very controversial. This is why Posner used the (cleverly left undefined) term “mixed media” when making his finding. It can be read that you can only have joint authors who don't provide individually copyrightable contributions but resulting in a shared authorship of a copyrighted output only in “mixed media” situations. But Posner's own example in the case was one that doesn't really create a mixed media issue- academic authors joining to create a complete, written work. This is what Nimmer's Treatise on Copyright has argued for in the minority of scholarly opinion so far.
Gaiman v. McFarlane lays the groundwork for further development of joint authorship ideas. As a copyright lawyer, I await further developments on this part of the case with keen interest.
The concept of “transformative” works as applicable to the “Harry Potter” works
The term “transformative works” has been misunderstood by many who look into copyright infringement questions which isn't surprising since copyright law and interpretation is chock full of confusions and obfuscations. There is a tendency to equate transformative work with merely derivative works, but there is a significant distinction. The right to make or authorize derivative works is one of the rights contained in an author's copyright. The question of transformative works is whether a truly derivative work- one that actually uses an original work as a basis for a new work- has transcended the influence of the original and established a presence and importance all its own, nearly independent of the original work. The derivative rights of an author are to protect the exploitation of their efforts, but, when a transformative work distances itself from the original with sufficient force, there is no exploitation to protect. It becomes a truly independent work in the minds of the public.
The case that gives the best example of “transformative use” took the term from copyright and applied it in a case of right of publicity. (Comedy III Prods. Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001).) That case used a pure example of transformative use in the world recognized artwork of Marilyn Monroe done by Andy Warhol. Clearly, the photocopied and colorized images of Marilyn were directly taken from the copyrighted photograph owned by the photographer who took them. By rights, the photographer should be able to protect his property from unauthorized derivative works made from his originals in as far as they impact his economic rights. But the artistry and “Pop Art” quality of the new creations was so original and unique that Mr. Warhol transcended the arena where the copyrights of the photograph could extend and entered a completely different realm. Someone looking at or buying a Warhol print is in no way intending to buy that photo of Marilyn. It's a wholly different object and so isn't an infringement of the photographer's copyright. Poor Mr. Saderup's charcoal rendering of the Three Stooges wasn't distinct enough to be sold as a “Saderup”. People buying the t-shirts were buying them because of the image of the Stooges and so he lost his case.
Therefore it will be interesting to see how “transformative” the new book would be. My suspicion is that the buyers of such a book would be buying them with the intent to get a “Harry Potter” related tome which doesn't bode well for the defendant. But we will see what the courts decide.
What bothers me about this is that he is attempting to make profit in the
first place. He is a fan of the series. He is NOT the author. He built up a
website chalk full of information which he pinched from her books. This
universe Jo Rowling created. She didn't create it so any Dick and John ( or
in this case a 'Steve' Vander Ark) could swoop in and attempt to publish an
encyclopedia based on her universe. It's beyond boggling to me that he can
even argue having the right to do this. She wanted to make her own for
charity. You explain things very well. There is no other universe in
fantasy like this and there will never again be. I am disgusted that he
would take advantage of her kindness ( in terms of letting the website
exist in the first place). What a rip off.
Adaora,
Apparently there are some confusions....
JKR/WB suit was filed, because SVA/RDR refused to make contact with the
former, as every other publisher/author had done that has the name Harry
Potter associated in the title. SVA/RDR refused to acknowledge the Cease
and Desist letters, or even respond, and refused to give JKR/WB a chance to
view the material to ensure there were no copyright infringements. SVA
reported to click 'print' on the Lexicon website, as an example of the
book. The problem with that is the Lexicon site was not solely organized by
SVA, but a whole contingent of JKR fans and ones that could post
information or corrections for SVA on the webpage. Additionally, within the
first day of trial JKR listed, highlighted for the lawyers which areas were
either false about the series, or were directly quoted without necessary
citations.
SVA was well aware of JKR's plans to create an Encylcopedia as
was not only publicized, but emailed to him, posted on his neighboring
website the-leaky-cauldron, and was placed in the requests by WB/JKR to see
the material first before reaching the book reached publication.
Very good explanation. Thank you.