EY originally wrote the thing while (on record) attributing the characters and context to JKR, and then (on record) mentioned that JKR said she is fine with fan works and doesn’t require attribution, after which he stopped.
I’m no lawyer, but I expect this means that EY is on record acknowledging his creative debt to JKR, and doing so because he thought he was legally obligated to. It seems like it would be hard to argue that MoR is fair use. This shows that the intent of the work was something the author thought was in range of her copyright, and thus not something like parody.
I’m no lawyer, but I expect this means that EY is on record acknowledging his creative debt to JKR, and doing so because he thought he was legally obligated to. It seems like it would be hard to argue that MoR is fair use. This shows that the intent of the work was something the author thought was in range of her copyright, and thus not something like parody.
This makes no sense to me.
EDIT: and specifically, acknowledging the debt is more of a good thing; from one discussion:
Whether the infringer copied the original in good faith or for a commercial interest may contribute to the court’s understanding of the context of the infringement.72 Any aspect of the infringer’s conduct, including whether the infringer acknowledged the copyright owner or whether the infringer sought permission, can be considered.73 Acknowledgment of a source, however, does not excuse infringement when other § 107 factors are present. 74 Additionally when the second work is a parody, the parodist is neither expected to seek nor obtain the copyright holder’s permission.75 Understandably, few authors would grant permission to have their character or their work mocked.76
I just looked up JKR’s statements on fan fiction, and I got the impression that she would sue in case something were published for profit, or just published in some print medium (I suppose a book or magazine).
I don’t think you could defend MoR as a parody with JKR’s original books as the target. Some MoR chapters point out absurdities in JKR’s work, but EY doesn’t make it his business to lampoon the original series. Judging from the wiki page on fair use, this makes MoR a ‘satire’, and these fare much worse in fair use cases.
The point about acknowledging debt is just that EY apparently went in with the intention of publishing something within range of JKR’s copyright. This would speak against an argument that the intention was parody: if the original intention were fair use parody, then why the legal disclaimers at the heading of each chapter? If that was out of respect only, then why the word ‘disclaimer’, and why stop doing it after JKR had given legal permission to FF writers?
The point about acknowledging debt is just that EY apparently went in with the intention of publishing something within range of JKR’s copyright. This would speak against an argument that the intention was parody: if the original intention were fair use parody, then why the legal disclaimers at the heading of each chapter?
Parody is by definition ‘within range of JKR’s copyright’; anyone wanting to write a parody is going in with that express intention. Attribution is just common courtesy and useful metadata. Per my previous quotes, this probably only would matter to the judge as indicating that the author’s intent is not malicious.
If that was out of respect only, then why the word ‘disclaimer’, and why stop doing it after JKR had given legal permission to FF writers?
JKR hasn’t given legal permission, she’s merely made some intent clear which at most, from what I recall of my classes on the topic, gives fanficcers a weak promissory estoppel. Why stop? Because he did it a few dozen times before, and the purposes have been served.
Some MoR chapters point out absurdities in JKR’s work, but EY doesn’t make it his business to lampoon the original series. Judging from the wiki page on fair use, this makes MoR a ‘satire’, and these fare much worse in fair use cases.
Exclusively focusing on criticizing canon is not necessarily helpful; original content helps pass other criterion like being a transformative use of the original and not being a replacement but a complement:
The Ninth Circuit also found Penguin’s use of The Cat in the Hat non-transformative based on its conclusion that Penguin made no effort to incorporate “new expression, meaning, or message” into the secondary work.323 As a result, because market substitution was more certain, the court was willing to infer market harm under the fourth factor. 324 The Ninth Circuit, in its failure to analyze what would constitute “new expression, meaning, or message,” at the very least, missed an opportunity to clarify the nature of a transformative work. This consideration was important because if The Cat NOT in the Hat! was transform ative , the first factor may not have weighed against fair use, despite the commercial character of the infringing work.325 Additionally, market substitution would be less certain and market harm might have been less readily inferred.326
...The Ninth Circuit cut short its analysis, or at least any presentation of its deliberations, regarding whether The Cat NOT in the Hat! was transformative.351 The court did not explain how the new work failed to incorporate original expression, meaning, or message.352 The court also failed to indicate how this new work would have superseded the original work.353 A full consideration of these subfactors under the analysis of purpose would have led the court to recognize the new work as transformative.354 As a transformative work, The Cat NOT in the Hat! could have been considered a fair use, after a full examination of the other statutory factors. 355
EY originally wrote the thing while (on record) attributing the characters and context to JKR, and then (on record) mentioned that JKR said she is fine with fan works and doesn’t require attribution, after which he stopped.
I’m no lawyer, but I expect this means that EY is on record acknowledging his creative debt to JKR, and doing so because he thought he was legally obligated to. It seems like it would be hard to argue that MoR is fair use. This shows that the intent of the work was something the author thought was in range of her copyright, and thus not something like parody.
This makes no sense to me.
EDIT: and specifically, acknowledging the debt is more of a good thing; from one discussion:
I just looked up JKR’s statements on fan fiction, and I got the impression that she would sue in case something were published for profit, or just published in some print medium (I suppose a book or magazine).
I don’t think you could defend MoR as a parody with JKR’s original books as the target. Some MoR chapters point out absurdities in JKR’s work, but EY doesn’t make it his business to lampoon the original series. Judging from the wiki page on fair use, this makes MoR a ‘satire’, and these fare much worse in fair use cases.
The point about acknowledging debt is just that EY apparently went in with the intention of publishing something within range of JKR’s copyright. This would speak against an argument that the intention was parody: if the original intention were fair use parody, then why the legal disclaimers at the heading of each chapter? If that was out of respect only, then why the word ‘disclaimer’, and why stop doing it after JKR had given legal permission to FF writers?
Parody is by definition ‘within range of JKR’s copyright’; anyone wanting to write a parody is going in with that express intention. Attribution is just common courtesy and useful metadata. Per my previous quotes, this probably only would matter to the judge as indicating that the author’s intent is not malicious.
JKR hasn’t given legal permission, she’s merely made some intent clear which at most, from what I recall of my classes on the topic, gives fanficcers a weak promissory estoppel. Why stop? Because he did it a few dozen times before, and the purposes have been served.
Exclusively focusing on criticizing canon is not necessarily helpful; original content helps pass other criterion like being a transformative use of the original and not being a replacement but a complement:
On the issue of transformation, I can now see how a case would be made. Thanks for the post.