Geek News and Musings

Doug Lichtman’s latest IP Colloquium takes on the question of derivative works, mainly discussing the infamous Harry Potter Lexicon reference guide that a judge recently barred from publication. In the program, Lichtman talks with the General Counsel of Warner Bros. studios, Jeremy Williams, and Anthony Falzone from Stanford’s Fair Use Project. Unless you’re really into some of the very very narrow details of copyright law (such as the differences between the various sections in copyright law), much of the discussion may not be that interesting. There were a couple of things worth noting, however. I tended to think that Williams’ views on fan fiction made a lot of sense — where he basically said that studios recognize that it’s a bad idea to stop fan fiction, and that the studios have to learn to let go of trying to control everything. I was actually quite surprised that Lichtman pushed back on this point, with an argument that, to me, makes little sense: suggesting that if an artist could potentially at some future time benefit from creating their own such works, then any derivative work should be seen as infringing and likely stopped.

I thought that Falzone did an excellent job rebutting such suggestions from Lichtman later in the podcast, leading to some points at the end where Lichtman recognizes that many of the issues around whether or not derivative works should be allowed are actually redundant to questions of fair use. But he does claim that there are a few situations where fair use and derivative works don’t overlap. However, I had trouble finding any that make sense. Lichtman gave an example of a teacher’s answer key to a college textbook, where he notes that the answer key probably doesn’t substantially copy the original work, but could be controlled by the original publisher via a “derivative work” claim of Section 106(2) in the Copyright Act.

But, to me, this seems ridiculous on a basic common sense reading. I can’t fathom how anyone can (at least honestly) claim that copyright really has an idea/expression dichotomy and then say that Section 106(2) makes any sense at all. What’s wrong if someone else wants to produce an answer guide to an original textbook? Why would it ever make policy sense to deny such a right? In most cases, you would assume that the original creator of the textbook would have a better understanding of the topics and the answers, so an “unauthorized” answer key is unlikely to be as valuable. But why should it be prevented? On top of that, if the answer key is just answering questions, then how could it be infringement? Those answers are accurate “facts” responding to questions. If an answer key is infringing, then wouldn’t that make student answers infringing as well?

In listening to the podcast, the only thing I could think was that I can’t come up with a single example where it makes sense to give the original creator the right to derivative works. I recognize that may be an extreme, but take a look at cases like recent banning of an unauthorized (and, apparently, not very good) sequel to Catcher in the Rye. I can’t see any reasonable explanation for how a society that prides itself on freedom of expression and encouraging creative works would ever deny such a right. It does not harm the original work in any way. It does not remove the ability of the original creator to create their own derivative work in any way. And it’s hard to imagine a situation in which an unauthorized derivative work would take away from the ability of the original creator to profit. Does anyone honestly think that if J.D. Salinger wrote an actual sequel to Catcher in the Rye people wouldn’t buy it because they’d already bought the unauthorized sequel written by some other guy?

So if it’s true that copyright only protects the expression and not the idea, how does control over derivative works make any sense at all?

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