Derivative Works: Substance versus Medium

I know it’s Christmas Eve and probably the last thing anyone is thinking about is copyright law at the moment, but I can’t help it. I have copyright on my mind. I’ve just been re-reading the “Wind Done Gone” and “Harry Potter Lexicon” cases (great pre-Christmas reading!) and am having trouble getting my mind around why these works aren’t “derivative works” for copyright purposes, or at least why “The Wind Done Gone” isn’t a derivative work (as I understand it infringement of the derivative works right was not argued in that case). To the extent that there is a feeling that derivative works have to be in a different “medium” than the original, I can’t find support for that view in the section 101 definition of “derivative work”. I suppose I understand the argument from the Harry Potter case that a lexicon is not a “form in which a work may be recast, transformed or adapted” and that rather the lexicon is a guide or dictionary that assists with interpretation of the original work. But why isn’t a retelling of “Gone With the Wind” from a new character’s perspective a “recasting” or “transformation” of the original work? I’m sure I’m  missing something obvious but I don’t seem to be able to put my finger on it right now. Must be too much Christmas spirit(s)!

Defamation, Right of Publicity, and Celebrities Portrayed in Fiction

One question I keep getting asked – and I’m increasingly unsure of the answer – is why we don’t see more litigation or threats of litigation when popular fiction authors utilize fictional versions of real-life celebrities in their books. One example that springs to mind is “Old School” by Tobias Wolff in which the author creates a central role in the narrative for fictional versions of writers including Robert Frost, Ayn Rand and Ernest Hemingway. But I’m sure there are plenty of other examples. Even Michael Cunningham’s Pulitzer-Prize winning novel “The Hours” presents a fictional version of Virginia Woolf. There must be cases in which the subjects of these books – or their estates – could claim in either defamation or right of publicity and yet there is little litigation that seems to arise. When I read these books, I tend to look carefully at the front matter to see if it contains disclaimers or if permissions have been sought to use likenesses of real people, and often nothing is actually printed in the book to this effect, although that doesn’t mean the lawyers didn’t negotiate something up front. Does anyone know if that’s what usually happens or if publishing houses have their lawyers vet the content prior to publication to ensure that there aren’t grounds for any legal action either because the substance of the book isn’t defamatory or because the subject in question would not be entitled to bring a cause of action on jurisdictional or other grounds?

Digital Book Distribution Models

Thinking more about the Apple e-book litigation, I couldn’t help but feel a little sympathetic to the book publishers who, at least on a first read of the facts, didn’t seem to have the first clue how to deal with Amazon or Apple when e-book readers started taking off commercially. I wonder if part of the problem for the publishing industry was that prior to digitization (and the release of the Kindle in particular), the only distribution model the publishers had ever dealt with was the sale of paper-based books to retailers for on-sale to customers. They had never had to deal with “device manufacturers” before. This was not the same for the movie, music and to some extent video game industry who had always had to deal in some way with consumer devices that enabled enjoyment of their content – either by manufacturing and distributing the devices themselves (like some of the early video game consoles) or by contracting with manufacturers of devices like music and movie players. Where there was failure to contract, there was litigation – but that happened much earlier in the day (think player piano and Betamax video recorders). So digitization brought with it not only the threat of digital piracy for the publishing industry (a threat faced by all other digitizing industries) but also the specter of having to deal with consumer devices for the first time (Kindles, iPads, Nooks etc). Does this explain why the publishing industry struggled so much to get digital sales models to work, and why they still haven’t  been particularly successful at least in contrast to other digitized industries? Or am I way off base here?