Can Anybody Write an "Unauthorized" Guide?

Question

I've seen several "unauthorized" guides for popular media. For instance, there is Finding Battlestar Galactica: An Unauthorized Guide. The impression I get is that by being "unauthorized", it is made without the permission of the owners of the material.

Assuming that definition is correct, can anybody and their grandmother write an unauthorized guide without any legal ramifications? I'm especially wondering:

• If they don't have permission, how do authors get around copyright issues due to using someone else's intellectual property?
• Do such guides have to be self-published or will publishers be willing to print them?
• Does the owner of the material have any legal recourse against the author if they do not want the book published?
• Do the rules change depending on what it is a guide about (e.g. a TV show, a software product, a person's life)?

I know that pretty much every response will fall under the "I am not a lawyer" defense clause; I'm just wondering in general whether or not anybody could write such an unauthorized biography.

Answer 1

These guides are perfectly legal original work, and any copyrighted material used in them falls under "criticism, comment and news reporting" fair use clause. Of course the author needs to make sure to assign credit with diligence, to emphasize these are citations and not plagiarism.

Now that doesn't mean the owner of the franchise won't try to stop the author of the guide. After all, it capitalizes on the official franchise without paying licensing fees. The onus of proof given citation falls fair use rules lies on the defense (the prosecution must only prove it belongs to them). There's the matter of trademarks and again the author must be diligent to show this is not a part of the official franchise (thus the obligatory "unofficial" in title!) and does not erode the trademark or damage its reputation.

In short: legally that's treading on slippery ground. This can be done legally but there's a bunch of preconditions that need to be fulfilled, and you may expect a legal battle - the fact the law is on your side doesn't mean the opponent won't try to coerce you into giving up, and in this case you're "guilty until proven innocent", they show "general rule forbids" and you must prove "exceptions apply."

Answering your points:

• You don't need the author's permission. (although obtaining it surely would make it easier)

• Publishers will be reluctant to accept these unless you're already in the clear legally (either with author's permission or won the lawsuit.)

• The owner can hope to prove you failed to observe all necessary conditions, or just hope to coerce you into giving up through a lawsuit. If you were diligent, you are in the clear, but that doesn't mean the lawsuit won't be lengthy or costly.

• There's a bunch of completely different rules if you publish someone's biography. A guide to a franchise is a guide to a franchise. A story of private life of a person is quite a different matter.

Answer 2

A good example you can study is the Harry Potter Lexicon case. A fan site wanted to publish a guide to the Harry Potter universe. Rowling disagreed, claiming she owed all the rights to the Harry Potter world, and nothing could be published about it without her approval.

Judge Patterson said that reference materials were generally useful to the public but that in this case, Vander Ark went too far. He said that "while the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon's purpose of aiding readers of literature generally should be encouraged rather than stifled.

Answering your other questions, it would be better to go with a publisher, as the copyright owner may sue anyway, and the publishers can afford better lawyers than you. I'm sure if the book had been self published, the author would have been bullied into backing off due to the high legal costs.

I don't think the rules would change based on the medium, but not sure. I don't think so, because I have seen such unofficial guides to TV shows, books, video games, to mention a few.