February 23rd, 2010 — Scandal!
On the heels of my previous post, concerning a 2000 copyright infringement suit brought against author J. K. Rowling, comes news of new allegations that the Harry Potter scribe may have lifted material from a fellow writer. The author in question, the late Adrian Jacobs, penned a little-known 40-page children’s book back in 1987 — a decade before the first Potter release — called The Adventure of Willy the Wizard, No. 1 Livid Land. According to the Jacobs estate, which is initiating the suit, it was he and not Rowling who first conjured up “the idea of wizard prisons, hospitals and schools.” Rowling has responded by saying that the charges are “not only unfounded but absurd.” The Jacobs estate estimates that the suit could be worth a billion dollars.
I don’t have much information about the case beyond the press reports to which I’ve linked above, so I want to be cautious about offering too much commentary here. I will say, however, that I find it difficult to accept the plaintiff’s claim that Rowling’s borrowings are “substantial,” given the brevity of the Willy book. This sounds to me like an attempt to claim ownership of a general concept, which would contravene the longstanding idea-expression divide within U. S. copyright law. In a nutshell, the law says you can only copyright the specific iteration of an idea, and not the idea itself. Everything in this case consequently hinges on the question of the specificity of Rowling’s alleged borrowing.
The Willy case reminds of another recent one. In 2006, Da Vinci Code author Dan Brown was sued by the authors of Holy Blood, Holy Grail, who alleged that Brown had absconded with 15 central themes from their book, as well as its basic plot architecture. But the judge in the case, Justice Peter Smith, disagreed. In his ruling he noted: “It is true that aspects of the Central Themes can be traced through the textual parts identified by the Claimants. That is because the Central Themes are too general and nothing significant is to be concluded from that identification.” (Hats off, by the way, to Justice Smith. Apropos of the bestselling book in question, he laced the ruling with a secret code of his own.)
Even if the allegations made by the Jacobs estate ultimately don’t hold up in court, they nevertheless underscore a tension that lies at the heart of all of the Harry Potter litigation — including that brought by Rowling herself. We’re dealing with a book series that, however original in its own right, nonetheless makes copious use of themes, character types, and narratives that are ubiquitous in Western culture. The fact that there’s significant overlap with the work of other writers shouldn’t surprise anyone, least of all J. K. Rowling.
February 15th, 2010 — Related Work
I’ve been meaning to blog about this for a couple months now. An article of mine, which may be of interest to readers of The Late Age of Print, was published in the October 2009 issue of the journal, Critical Studies in Media Communication (CSMC). Here’s the citation, abstract, and keywords:
Ted Striphas, “Harry Potter and the Simulacrum: Contested Copies in an Age of Intellectual Property,” Critical Studies in Media Communication 26(4) (October 2009): 1-17.
This essay begins by investigating how and on what basis the boundary between originals and copies gets drawn within the framework of intellectual property law. It does so by exploring Harry Potter-related doubles that were featured in the 2000 trademark and copyright infringement case, Scholastic, Inc., J. K. Rowling, and Time Warner Entertainment Company, L.P. v. Nancy Stouffer. The paper then moves on to consider how, within the context of the case, the boundary line dividing “originals” from “copies” grows increasingly indeterminate, so much so that it becomes untenable to speak of either category at all. It thus investigates what happens when the figure of the simulacrum, which troubles bright-line distinctions between originals and copies, enters into the legal realm. Theoretically, the simulacrum would seem to pose a challenge to intellectual property law’s jurisprudential foundations, given how it blurs what should count as an “original” or a “derivative” work. This paper shows that while this may be true in principle, powerful multimedia companies like Scholastic, Time Warner, and others can strategically deploy simulacra to shore up their intellectual property rights.
Keywords: Harry Potter; Intellectual Property; Copyright; Trademark; Simulacrum
There’s a good deal of thematic overlap between the article and Chapter 5 of The Late Age of Print, which also focuses on Harry Potter and intellectual property rights. They differ, though, in that the journal essay is more theoretically focused than the book chapter; the latter, I suppose, is more historical and sociological.
The strange thing about “Harry Potter and the Simulacrum” is that even though it’s quite theoretical, it’s also quite — I’m not sure what exactly — playful? comical? whimsical? In any case, it’s probably the most fun piece that I’ve ever written and published. I attribute that largely to the bizarre court case at the center of the essay, which I swear must have been plucked from the pages of a Lewis Carroll story.
In a perfect world I’d link to a PDF of the article, but the journal publisher, Taylor & Francis, prohibits it. In an almost perfect world I’d link you to a post-print (i.e., the final word processing version that I submitted to CSMC), but even that I’m contractually barred from doing for 18 months from the time of publication.
Taylor & Francis charges $30 for the essay on its website, which to my mind is just ridiculous. Heck, a yearly personal subscription to the journal costs $81! So, if you’re university-affiliated and want to take a look at the piece, I’d encourage you to check with your own institution’s library. If you’re not, I’m allowed to share a limited number of offprints with colleagues, and you can email me for one.
To complicate matters even more, the printed version of “Harry Potter and the Simulacrum” has the wrong copyright declaration. I signed Taylor & Francis’ double-secret “license to publish” form instead of the usual copyright transfer. Despite that, the piece still says © National Communication Association, which is the scholarly society under whose auspices CSMC is published. Sigh.
Suddenly this is starting to sound like a Lewis Carroll story….
July 15th, 2009 — Quick Takes
Well, the sixth installment of the Harry Potter movie franchise, Harry Potter and the Half-Blood Prince, debuted last night just after midnight. My local paper here in Bloomington, Indiana (which unfortunately you cannot access without a subscription) reports that a large group of Potter fans gathered for the day at one of our movie theaters to celebrate the release. Not a small number arrived in costume.
It’s intriguing to have read the local report on the heels of the New York Times review of the movie, which is much less celebratory. The piece opens by noting how the Potter franchise has “begun to show signs of stress around the edges.” Indeed, it’s been two years since the release of the seventh and final chapter of the book series, Harry Potter and the Deathly Hallows, and the plan for its film adaptation includes not one but two separate installments. I happen to have loved Half-Blood Prince — the book — but according to the Times the movie feels a whole lot like “filler.” I may wait to see it on video.
Could it be that after a dozen years worth of books, movies, and merch, Harry Potter fatigue has begun to set in?
What’s intriguing is how adamant Harry Potter’s rights holders have been about policing their copyrights and trademarks. (I discuss this at length in chapter 5 of Late Age of Print.) One of their goals in doing so has been to mitigate the boy wizard’s over-exposure. But if the Times is to be believed, then it would seem like Rowling and company have done a pretty good job of over-exposing Our Hero all on their own.
February 13th, 2009 — Electronic Reading
Yesterday I ran across this intriguing post on The Guardian Technology Blog, about e-books and book piracy. There, author Bobbie Johnson advances a provocative, and perhaps counter-intuitive, claim. E-books have yet to really take off, he argues, because printed books haven’t been subjected to a level of online piracy sufficient to inculcate a digital disposition in book readers. The analogy Johnson draws is to the music industry, where peer-to-peer file sharing helped to promote a system in which music would no longer be tied to a specific — and specifically analog — medium.
I don’t dispute Johnson’s assertion about digital music. But on the matter of e-books and printed book piracy, I must respectfully disagree. As I demonstrate in my book The Late Age of Print, especially in the chapters on e-books and Harry Potter, printed books have been going digital and coursing through file-trading circuits for years now. Probably the biggest racket is in printed student textbooks, which, because of their egregious (captive audience) price, have ended up on any number of fly-by-night bit-torrent sites, such as Textbook Torrents, Rapidshare Textbooks, and others. Here’s a link to good article from The Chronicle of Higher Edcuation about the former — now defunct — site, if you want to know more.
Popular printed books like Harry Potter also have been photographed or scanned and posted online. This is exactly what happened when the final installment of the series, Harry Potter and the Deathly Hallows, was released in July 2007. Images of pages began appearing on file-trading sites like Photobucket and The Pirate Bay even before the book was officially released!
And then there’s the thorny matter of academic course packs. It used to be that educators would create anthologies consisting of photocopied book chapters and journal articles — all copyrighted materials — for their classes. Usually the course packs would be created and sold by local copy shops. Following the landmark 1991 Kinko’s decision, most of these shops sought permission to do so through the Copyright Clearance Center, which pays royalties to copyright holders. But in an age of cheap, ubiquitous scanners, Adobe Acrobat, and password-protected course sites (usually hosted by academic libraries), the traditional course pack has become all but obsolete. Today, educators assert the exception to the 1976 Copyright Act that stipulates the “fair use” of copyrighted materials for one-time classroom use. Significantly, very few of these items are “born digital,” even if they may ultimately end up that way.
There’s an even broader argument to be made here, namely, that e-books arise precisely (although not simply) in response to publishers’ longstanding fears about the promiscuity of printed books and their content. Way back in the 1930s, the publishing industry contracted with public relations doyen Edward L. Bernays to come up with a pejorative word for people who, by trading books with one another, supposedly deprived authors of their royalties. (The term, “book sneak,” never really caught on.) Then then there was the whole freak-out over photocopiers in the 1970s, which led to the creation of the Copyright Clearance Center and, shortly thereafter, to a host of lawsuits against copy shops.
There are many other examples like this that I could point to, but the question ultimately is this: given the mobility of printed books and their content, is it any surprise that book publishers would be interested in pursuing a technology — digitally rights-managed e-books — that would allow them to micromanage the whereabouts of book content?
So why haven’t e-books become even more popular than they already are? The answer isn’t, “not enough printed book piracy.” In fact, it’s exactly the opposite.
