Comments on: Rowling 1, Lexicon 0

By: Info/Law » Like Voldemort, Potter-Lexicon Suit Rises Again

Info/Law » Like Voldemort, Potter-Lexicon Suit Rises Again — Wed, 12 Nov 2008 19:01:39 +0000

[...] the original verdict was correct in its outcome (including the minimal statutory damages), I found the reasoning confused in a number of key areas. The Second Circuit should, hopefully, affirm, but with a clear opinion setting straight some of [...]

By: Emily

Emily — Thu, 11 Sep 2008 14:40:11 +0000

Thanks for your commentary. I’ve been summarizing the case over on my blog but didn’t even really get to commentary yet! (Well, except for the footnotes of commentary I just couldn’t help, such as “Why did he have to switch the order of the factors?” I see we agree there.)

By: On Truth and Clue: J.K. Rowling and Steven Vander Ark : Spontaneous Derivation

On Truth and Clue: J.K. Rowling and Steven Vander Ark : Spontaneous Derivation — Wed, 10 Sep 2008 05:50:19 +0000

[...] Update: At Harvard’s Info/Law blog, Derek Baumbauer speaks. [...]

By: Derek Bambauer

Derek Bambauer — Tue, 09 Sep 2008 14:56:26 +0000

Tim, you’re exactly right. The 3-step analysis should have been labeled more carefully: it’s intended to scout out violations of the derivative works right. If the answer to #1 – substantial similarity – is right, then we need to go to #3 (or, possibly, one of the other weird loopholes in Sections 108-122).

It’s worth nothing that there are IP folks who disagree with me: they believe there are adapted / secondary works that do not qualify as derivatives and hence don’t require analysis under 107 at all. This means that, in the zone of possible adaptations, some will potentially infringe and some will not – but because they don’t meet the statutory definition of “derivative work.”

My own view is that this describes an attractive vision of how copyright law should work, but I disagree strongly that it does in fact work this way. It’s standard blackletter law that if you have a work “based upon” a prior one with substantial similarity to it, it’s a derivative work.

I hope to have time today or tomorrow to find some good 2d Circuit precedent to help make this more clear.

By: Tim Armstrong

Tim Armstrong — Tue, 09 Sep 2008 14:33:12 +0000

Derek, great post! I wonder whether, on your fourth bullet point, we really need all 3 steps in your proposed 3-step analysis. Consider the substantially similar copy that does not add new expression and hence is not a derivative work: that would infringe the reproduction right (and require us to proceed to your step 3, asking whether the infringement is excused under fair use or some other doctrine). Your step 2 is useful for differentiating infringements of the derivative works right (the court’s key concern here, apparently) from infringements of the reproduction right, but the analysis properly goes to step 3 any time the answer to step 1 is “yes,” don’t we? It’s not necessary that steps 1 and 2 both be “yes.”