Rowling Protects Her Copyright

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When the Harry Potter Lexicon website announced plans last fall to publish a book based on their fan-written content, JK Rowling and Warner Brothers sued for copyright infringement.  A Federal judge halted the planned November publication of the book while the lawsuit plays out. Now Tim Wu at Slate argues that Rowling has gone too far.

Are fan guides actually illegal? As sympathetic as I am to Rowling and her rights as an author, the answer is no. There is a necessary and healthy line between what the initial author
owns and what follow-on, or "secondary," authors get to do, and Rowling
is running over that line like the Hogwarts Express. The creators of
H.P. Lexicon may not be as creative as Rowling, but they are authors,
too, and deserve a little respect from the law.

[…] Rowling takes the position that she, as the original author, has the
right to block the publication of any such guide. In her words:
"However much an individual claims to love somebody else’s work, it
does not become theirs to sell." But Rowling is overstepping her bounds.

It appears he is wrong, at least from a legal standpoint. A reader on Rebecca Blood’s site refers to previous court precedents that support Rowling’s claim:

Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d
Cir. 1998), aka, the Seinfeld Trivia case. Someone created and
published an unlicensed book of Seinfeld trivia, with details about
characters and lines in the show, arguing that doing so was fair use
and merely a compilation of facts. The court held that the facts about
the show weren’t really facts, but rather expressions of the creators’
imaginations, and the most important fair use factor of effect on the
market was in Seinfeld’s favor since they had plans for their own
derivative books based on the show. See also Twin Peaks v. Publications
Int’l, Ltd. 996 F.2d 1366 (2d Cir. 1993), which was plot summaries and
quotations from the TV show Twin Peaks – again, the court held that the
amount of material taken from the original was substantial and
adversely affected the market for authorized books about the show, and
so denied a fair use defense to copyright infringement."

Variety reports that Rowling is taking action because interferes with her plans to do her own compendium.

"I cannot, therefore, approve of ‘companion books’ or ‘encyclopedias’
that seek to preempt my definitive Potter reference book for their
authors’ own personal gain," Rowling said in a statement, released by
Warner Brothers.

[…]The lawsuit doesn’t seek action against the Web version of the Lexicon,
but criticizes it for numerous sections it said "regurgitate Ms.
Rowling’s original creative expression with minimal additional
commentary."

The CBC reports that Rowling isn’t happy about having to take the fans to court.

Rowling had been a supporter of the website and in a statement
released on her website, Rowling admitted she took "no pleasure" in
launching the lawsuit.

"I feel massively disappointed that this matter had to come to court
at all," the statement said. "Given my past good relations with the
Lexicon fan site, I can only feel sad and disillusioned that this is
where we have ended up."

The outcome of this case, if it goes to trial, could have far-reaching impact on how far fans can take their so-called derivative work and claim it as their own.

(Thanks to "Calistoy" for the heads-up).

Things Aren’t Bleak for Bleak House

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The MWA has been criticized in some quarters for favoring the big houses over small presses. But as Publisher’s Weekly notes, the Edgar nominations this year tell a different story:

To nobody’s surprise, when the Mystery Writers of America announced the
finalists for the 2008 Edgar Awards last week  titles from the large
New York houses dominated the eight (out of a total of 13) categories
dealing with books. But one small Wisconsin press is more than holding
its own among the 35 books and five short stories selected as this
year’s Edgar Awards nominees. Three of the 15 titles released this past
year by Bleak House Books in Madison, an imprint of Big Earth Books,
have been nominated for 2008 Edgar Awards in three different
categories: Soul Patch by Reed Farrel Coleman (Best Novel), Head Games
by Craig McDonald (Best First Novel), and "Blue Note" by Stuart M.
Kaminsky from the Chicago Blues collection (Best Short Story).

Bleak House isn’t the only small press represented on the Edgar list this year. There are also titles from McFarland & Co, Serpent’s Tail, Hard Case Crime, Rookery Press, Level Best Books, Akashic,  Clarion, American Girl, and Busted Flush.

The O.T.W. Wants Your Copyright

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Novelist and First Amendment attorney Julie Hilden argues that authors and rights holders should be very concerned about the Organization for Transformative Work’s proposal to extend copyright  protection to fan fiction. She writes, in part:

Does fan fiction deserve to share the same
respect as original work, for copyright purposes? The OTW’s proposal
suggests so. Recognizing fan fiction as "legal and transformative"
would put it on a par at least with "fair uses" of original works, and
perhaps also with the works themselves. And the recognition of fan
fiction as "legitimate creative activity" seems to put it on, or close
to, the level of original works. But is that the fair or right level
for fan fiction to occupy?

Hilden doesn’t think so. She believes if copyright protection is extended to "fannish works," the original authors or rights holders will suffer a very real, detrimental impact with far-reaching implications.

the OTW is not asking for a fixed, low
royalty rate for fan fiction; rather, it is trying to destroy original
authors’ ability to both silence fan fiction and require
royalties for it. Thus, the OTW has bypassed the more moderate solution
of a low, fixed, statutorily-mandated royalty rate for fan fiction that
effectively sets that rate at zero.
Does that matter?
Absolutely. Even those who strongly value fan fiction may worry about
maintaining authors’ incentives to create the original works that feed
it.

 

The OTW’s proposal is a complete abrogation of
control with no compensation for taking away rights, or any
substitution of rights (for instance, switching a right to refuse to
license fan fiction with a right to charge a low, statutorily-mandated
royalty.) In this sense, it is the most extreme proposal possible.

And one not likely to succeed, if the OTW is foolish enough to pursue it.  It would poke the studios, publishers, and authors right in the blind eye that they’ve been regarding fanfiction with for years. That should have fanficcers very worried. All it will take is one court challenge by the O.T.W for that blind eye to open and view the entirety of fan fiction with a very hostile gaze.

The studios, publishers, and authors aren’t about to sit back and allow such an outrageous rights grab…nor,  Bilden argues, should they. She believes that copyright law is rightfully tipped in favor of original creators:

Our Constitution’s Copyright Clause has always
seen original authors as far more important than derivative users.
However, especially in light of the Internet’s influence, many have
taken issue with that hierachy – even to the extreme of ignoring
original authors’ interests.

[…]not only does the Copyright Clause in fact
privilege these creators over derivative users, but that hierachy may
be the right one, from the standpoint of policy: Original work may
actually be more worthy, in that it brings something genuinely fresh
and innovative into the world, representing a creative leap and not
just an incremental extension.

But, incredibly, the O.T.W. believes that Harry Potter slash fic is on equal footing with J.K. Rowling’s books and deserves the same protections as her work…more over, that it deserves to be protected specifically from her.  And they don’t understand why authors might have a problem with this…

The Mail I Get

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I got this email today:

Why are you so hard on print-on-demand publishers? It’s the wave of the future. You seem to think if a publisher is strictly POD that they are a scam.

You are mixing two different thoughts…publishing and technology. Let’s deal with the "publishing" aspect first.

Being a POD press, in and of itself, doesn’t mean
that they are dishonest. But the likelihood of you selling many books, or
getting any critical notice, when going with a POD press are extraordinarily slim.
POD presses are notoriously
fly-by-night and financially unstable.  Why? Because anybody with a credit card can start a POD press and call
themselves a publisher, whether or not they have any experience at editing, distribution, promotion, or running a business. So the quality of the editing, cover art, and
professionalism is often iffy at best. Most POD presses are launched by
aspiring authors who want to publish their own work and, sadly, many are also started by scammers who prey on the gullibility and desperation of wannabe writers.

As  for the print-on-demand technology, I don’t know whether it is the "wave of the future" but it is being embraced by more and more real publishers for printing galleys and keeping their backlist alive (which presents challenging issues for authors  in dealing with publishers, who can use POD to claim their books are never "out of print" and the rights never revert back). Whether POD will ever replace traditional off-set printing of trade paperbacks…well, that’s yet to be seen.

Dell Hell Continues

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The technician came yesterday and replaced the motherboard and hard-drive on my XPS M1330 …but he had the wrong back-cover for my machine. So a technician came today with the correct cover and after installing it discovered that my fan isn’t working. He didn’t have the parts or the authorization to fix it. The only things that haven’t been replaced on this lemon are the DVD drive, the keyboard and the monitor.

I talked to a Dell supervisor and the best they can do for me is send me a replacement machine. It will be here in a few days and I’ll let you know how it works.

Socializing and stuff

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I’ve run into a lot of old friends on the picket line and it has been great catching up with them. It’s made me wonder why it took a strike for me to finally see them again. So one of my new year’s resolutions is to stay in better touch with my friends.

The day before going to NY last week, I had breakfast with actors Erin Cahill and Maurice Roeves from my movie FAST TRACK (not that I had lost touch with them) and then lunch with Javier Grill0-Marxuach, best known for his work on LOST.  I enjoyed hearing about his terrific experience shooting his pilot THE MIDDLEMAN and recalling our time together on SEAQUEST. It’s nice to see that he’s every bit as boyishly enthusiastic about the biz as he was when we first met.

Today I got a 24-hour reprieve from jury duty, so I was able to grab lunch with Terry Winter, best known for his work on THE SOPRANOS, who had me laughing so hard with anecdotes and stories that I nearly choked on my club sandwich more than once.  And tonight I had dinner with Carl Strueck, our stunt coordinator from FAST TRACK, who is visiting L.A. with his lovely wife.

Seeing more of  my friends has nothing to do with "networking" and everything to do with simply staying connected to people whose company I enjoy…especially those who, with the exception of a few email exchanges and occasional phone calls, I haven’t actually seen in a while. 

I’ve also been doing a lot of writing (nothing for studios or networks, of course!). Mostly I have been working on my books. But  I optioned an Edgar-nominated crime novel a year ago and the strike has given me the opportunity (and the time) to finally write the script. I know many other writers who have used the "down time" to write that personal "passion project" that they haven’t had time to get around to….until now.  I’m sure that once the strike is over, Hollywood will probably be flooded with fresh material. I hope mine won’t get lost in the script tsunami.

Things have been hectic at home. My daughter got a 3-month old puppy from the pound and it’s like having a baby in the house again. Our nights are, to put it mildly, a challenge lately. But the puppy is adorable and sweet and learning fast.

Tomorrow I am free from jury duty again…but tomorrow I have to call in again and see if I am needed to bring justice to the lawless west.

 

Zooty is a Hooty

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Victoria Strauss has exposed another scam…but this one is more insipid than most.

If you have a good manuscript, and
are unable to get published, Zooty and Flappers will publish your work
as an ebook and CD. Readers will be allowed to down-load your book
free, and give it a report and rating. If the rating is good, your book
will be removed from the free section, and offered for sale…When your
book has sold the required number, it will be sent along with a reader
and sales report to agents who are AAR members in good standing.

According to the Path to Publishing page (worth reading in its entirety, but don’t be drinking any liquids while you do), the "required number" is 10,000 copies.

UPDATE 1-30-2008:  Zooty founder Domenic Pappalardo has responded to Victoria, accusing her of being a minion of Satan. He writes, in part:

For
the past several weeks, Zooty and Flappers has come under attack by
several  groups.  The inner-net has allowed Satanic writers to reach
children of all faiths in the safety of their home, and to slander all
who speak against them. Some hide their writing under the guise of
SiFi.  Is their new Bible, "The Awakened City?"  authored by Victoria
Strauss.

[…]Ms Strauss is the editor of Writers Beware, which she uses to silence all who speak against her following. She has supported
claims that Mr Pappalardo is a deceptive scam? None of which has been
backed with any fact. The true reason for her attack and that of her
followers?. She has spread the word via her blog at, "writers beware
blog."  Was this a protection for Jean Lauzier? (co-founder of
"Storycrafters," a chat room (Storycrafters blog).

It is well
known that Mr Pappalardo is for the unification of all who believe in a
single God. Satan has always been a force to divide and destroy.

Dell Hell

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Dellxpsm1330
I used to be a loyal Dell owner and an enthusiastic cheerleader for their products. They used to make great machines and they backed them up with top-notch customer support.

Those days are gone.

About two months ago, I bought a XPS M1330 laptop because its light, its fast, it was well-reviewed  and it’s a Dell, which I associated with quality. I took it out of the box and before the day was over, the stickers on the back — which say "XPS" — had peeled off. I called Dell and asked for new stickers. But rather than sending me stickers, they sent a service man to my house who had to replace the entire back panel of my machine. Two days later, the stickers fell off again. I should have seen that as a warning sign.

A week or two later, and a day before going to Europe, I turned on my machine and couldn’t access the operating system. I spent three hours on the phone with their support people…but they couldn’t solve the problem nor could they tell me the cause. They only had one solution: reformat the hard-drive and re-load all my software. It took me an entire day to do it and it was a nightmare. 

On the airplane to Germany, the computer crashed (a blue screen "physical memory dump") and rebooted. And every day after that, at some point, the computer would crash and reboot again. I called Dell, spent more hours on the phone, and they couldn’t find a solution. Their best guess was that it was a problem with my Norton 360 software. I called Norton and they said it was clearly a hardware problem.

So,  I lived with it, backing up constantly. This weekend, within hours of arriving in New York on another business trip, my XPS crashed again.  Only this time, I couldn’t access the operating system. I called Dell and after another two hours on the phone, the baffled and frustrated support guy sought advice from a senior supervisor who told him  that this was a common problem
with XPS M1330 motherboards made on the same date as mine. SO WHY THE HELL DON’T
**ALL** THE SUPPORT PEOPLE KNOW THIS!?  WHY IS IT SOME BIG FRIGGIN’ SECRET? They could have saved me and
their employees hours and hours on the phone just by sharing this information with all their support people.

Those were lost hours that I didn’t spend with my family or working on my books. It was time flushed down the toilet for no reason except Dell’s ineptitude and disorganization.

I was furious. It was at that moment that they lost me, a loyal customer for ten years, someone who has bought four desktops and six laptops from them (for myself and my family).

I demanded that they replace my computer. They said they couldn’t do that, but that they would send a tech to my house to replace the motherboard and hard-drive on the one that I have …and the back panel with the missing stickers.

The tech came over today and spent a few hours installing my new motherboard and hard-drive…but they gave him the wrong back panel, so he has to come back tomorrow. So that’s two days I have to sit around the house waiting for the tech and being here while he works. More lost time. More lost productivity. All because Dell doesn’t know how to make computers or support their products any more.

I won’t be spending another moment in Dell Hell.

Writers Digest Completely Sells Out

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The  77th Annual Writer’s Digest Publishing competition has become another self-publishing scam. The contest is sponsored by Outskirts Press, the self-proclaimed "gem of custom book publishing."  The grand prize is $3000 in cash, a "free diamond publishing package from Outskirts Press," and a three-day trip to New York to meet with four  editors and agents  (if they are in the same league as Outskirts, you’d better bring your credit card). All the winners will be published in a special book by, you guessed it, Outskirts Press, which is probably hoping that the naive winners will spend their award money on copies. And all it costs you for a chance at this once-in-lifetime opportunity to be suckered by a vanity press is $15.

They shouldn’t call this the 77th Annual Writer’s Digest Publishing competition…they should call it the Writers Digest  Publishing Contest To Lend False Legitimacy to the Vanity Press Scam Artists Who Advertise in our Magazine….but I guess that title is too long. And accurate.

UPDATE: Brent Sampson, the CEO and "publisher" of Outskirts Press, responds in the comments below. He says, in part:

Writer’s Digest could have chosen any company to be the sponsor of
their Writing Collection. The fact that they chose Outskirts Press
demonstrates that they recognize our benefits, and they’re in a
position of knowing.

That’s exactly what bothers me. WD should know better than to let a
vanity press sponsor a writing contest under the Writer’s Digest name…which just illustrates just
how little credibility they have left as a magazine that’s dedicated to
the best interests of writers. If Writers Digest cared at all about writers, they
wouldn’t accept advertising from predatory vanity presses or allow one to sponsor their writing contest (and offer a
publishing package with the company as a "prize"). Writers Digest should have found a real publisher to sponsor the contest…or not have a sponsor at all.

Outskirts Press is not a
publisher. They are a printer. They aren’t making dreams come true…they
are taking advantage of the
gullibility and desperation of aspiring writers and, if WD had any
integrity at all, they would have nothing to do with them.