JKR first has to establish that the Lexicon is "substantially similar" to the HP books -- this may be difficult for her to do unless everything is a direct quotation from those book. Only then does the court consider whether or not the material used comes under the fair use doctrine.

Although I haven't read the briefs in the case, only the news accounts, she seems to be saying that no one can publish a derivative work without her permission -- and that's simply not true. Fair Use allows someone to create a new work based on her work, and even to quote directly from it when doing so.

The issue from JKR's personal point of view seems to be that she loves her characters very much and it hurts her feelings when other people try to write about them. Which to me doesn't sound like an airtight legal case.

(And yes, I'm sure it's more complicated than that once you get beyond the sound bites, but I really don't think she's doing herself any favors by whining to the press right now.)

this may be difficult for her to do unless everything is a direct quotation from those book.

My understanding - and it's been a little while since I was following this - is that this is substantially the case.

In fact, I bellieve that the original intent was to include a bunch of original writing that had been posted to the website, and when those writers balked at being used without permission, it got stripped down to virtually only the quoted material.

My understanding - and it's been a little while since I was following this - is that this is substantially the case.

Even so, courts have recognized substantial re-organization of material as creating a new (reference) work. Theoretically, even if every word was quoted material that still doesn't mean that it's not fair use.

WB claims that 90% of the Lexicon is quotation from Rowling's work.

It's interesting to hear y'all's perspective on it, because the segments of fandom that I'm familiar with are cheering for WB and JKR to drop an anvil on RDR's head.

It sounded from the NYT article that Rowling supported, or at least was positive about the website when it was in that form - in the same way she supports a lot of fan sites, but when they went to actively bind, publish, and sell the portion of the site as a book, that is when she grew concerned.

ION - comcast has gone full dada. they just gave me two automated options - both identical. Can one really call them options at that point?

the segments of fandom that I'm familiar with are cheering for WB and JKR to drop an anvil on RDR's head.

It's true, but I also wonder to what extent people are responding to the incredibly bad fan-etiquette. I mean, there are certainly people on either side of the question whose legal analysis I trust way more than mine, but a lot of the reaction I've seen seems to be to the incredible assiness (in a certain culture, that is) of "I'm going to take my fan website and publish it".

courts have recognized substantial re-organization of material as creating a new (reference) work. Theoretically, even if every word was quoted material that still doesn't mean that it's not fair use.

Can you provide examples of this? Because it doesn't make any sense to me.

I think there's also the fact that the Lexicon site was not only the work of Steve Vander Ark. I don't know how the site ran or what's happened to the contributions people made, but I do know that he didn't ask anyone for permission to use their work, and he didn't include them in his book contract.

the segments of fandom that I'm familiar with are cheering for WB and JKR to drop an anvil on RDR's head.

I'll concur that a lot of the basic emotional reaction for this is the violation of "Thou shalt not profit," bolstered in this case by some incredibly ridiculous shenanigans on the part of the defendant-publisher.

The shenanigans alone tend to make me think that the defendant is probably in violation of some law, somehow, just because you don't pull shenanigans like that unless you're up the creek and flailing with your arms absent a paddle.

Yeah. I think in a lot of ways this is a very bad test case, since there were alarms screeching at about every step of the way on this. Hopefully that means that the outcome won't be too determinative, whichever way it goes.