Via Half the Sins of Mankind, this interesting Slate article argues that folks abroad ought to be free to plagiarize Harry Potter as much as they want.
This is basically what’s going on in the world of Harry Potter. The English original is clearly the best. The imitators aren’t as good but are cheaper and come out much more frequently (there are already three Tanya Grotter books). There is, in short, a secondary Potter market. Isn’t this the international trading system at its best?
Moreover, the writers of secondary Potters are probably better at creating versions of Potter suited to local conditions. According to Reuters, at least some Russian children prefer Tanya Grotter to Harry, some on account of her Russian name. Local writers do things to Harry that Rowling can’t, like introducing him to local literary figures and putting him in local wars. It may be good and it may be bad, but it’s a market failure to prevent it.
Potter’s publishers, in defense of strong global copyright, would say that works like Tanya Grotter are theft, and such theft destroys the incentive to write in the first place. But the incentives argument is surprisingly unpersuasive in the international setting. To say Rowling will stop writing for fear of international parody is a difficult case to make. Only the most famous and lucrative works are parodied overseas. If an international adaptation is a sign you’ve made it rich, how can it be a serious financial deterrent for new writers?
I’d prefer to be both less and more extreme than the Slate writer. On the one hand, I do think that all publishers of derivative works should be required to pay a small portion of profits (say, 1%) to the original creator; creators deserve to profit from their creations, including their indirect creations. This idea (usually applied to medicines) is called “compulsory licensing”; the creator has a right to profit from her creation, but not to prevent other producers from using her creation.
On the other hand, I do think Rowling has the right to control the use of her own name. So although I’d like any publisher to be able to produce a “Harry Potter” book, I don’t think they should be able to print Rowling’s name on the cover or advertising without her express permission (which she presumably wouldn’t give, or would give only in exchange for suitable compensation). “Half the Sins of Mankind” worries that “people who buy the Chinese book in the mistaken belief that it is a new addition to the series have been defrauded,” but we could avoid this by letting Rowling have an exclusive right to put “written by J.K. Rowling” on the cover.
In exchange for this, society gets the benefit of dozens – perhaps hundreds – of Potter and Potter-derived novels.
On the other hand, why limit the Potter bounty to folks abroad? Why should writers in China and Russia be free to write (and profit from) Harry Potter sequels, but not writers in Britain and the USA? It’s not as if derivative works are necessarily more valuable because they’re created abroad; if preventing such works is a market flaw internationally, it must be a market flaw domestically as well.
UPDATE: Letters from Limbo comments on the same article, and pretty much agrees with my views..
I’m sorry Barry, I can’t support the idea of derivative works done without permission of the creator under ANY circumstances. It’s just plain theft, and it’s just plain wrong. Let these supposedly talented writers come up with their own concepts and find someone to blurb, “If you like the Harry Potter books, you’ll love This Magic Moment!” or whatever.
Why is it just plain wrong?
And, I’d add, it’s not clearly theft. If you steal something – say, my wallet – from me, I no longer have it after the theft. If I write a “Spiderman” short story, what exactly has the Marvel comics company lost?
” If I write a “Spiderman” short story, what exactly has the Marvel comics company lost”
The abality to profit from their creation. If you are selling Spiderman books, then you are eating into the limited number of people willing to buy Spiderman books. And you have taken control of the art away from MArvel. No longer can Marvel be assured that it and it alone could control the direction the story takes.
Agreed with Kevin on the effects on the market for original works of substitutive works. A Harry Potter derivative story, if sold, would take away from the market for the real thing.
Supplemental works such as fanfic, however, do not detract from the market for the original work; like parody, the existence of fanfic is one measure of the influence of a creative work. Supplemental works whet the appetite of the fans for the next chapter of the work, whether it’s the next ep of Angel or the next Potter book.
And neither Scholastic nor Rowling can copyright the idea of “young powerful wizard/witch goes to school of magical arts and saves the world”; just the manifestations of the story, characters, and settings indicated in the books and movies.
I’ve often hoped that instead of using copyright to demand exclusive ownership of nebulous characters and ideas, one could implement a sort of mandatory licensing scheme. Harry Potter’s popularity would imply a cut of the profits on all derivative works for J.K.Rowling, and specify that all unauthorised derivative works be clearly marked as such and name the original developer.
The argument for financial loss is hard to make under those conditions, especially because it all but guarantees that derivative work of comparable quality will cost more. It’s also a little strange to assert that the original author is in some way defamed by, say, a Harry Potter porno novel. And Harry Potter, as a fictional character, has little standing to make a defamation case himself.
The remaining issue is the right to artistic control, a non-existent right in all commissioned works anyway, and frankly a bit of an egocentric idea regardless. You loose control after you’re dead no matter what. I’m not sure anyone actually profits financially or artistically from asserting such a right at least so long as derivative works must be clearly marked. The history of the arts is a history of usually unattributed theft and knock-off, and I think finding ways to compensate artists despite reappropriation is probably better than trying to find ways to prevent it.
Agreed with Kevin on the effects on the market for original works of substitutive works. A Harry Potter derivative story, if sold, would take away from the market for the real thing.
Do you have any proof to support that, or is that just your supposition?
You see, I do read Harry Potter derivative stories — fanfiction. Lots of it. Mostly stories that tried to continue on with the characters’ futures after Bk 4.
I was also in line to buy my copy of Order of the Phoenix nearly two hours before midnight. I bought 2 copies that night (so my husband & I could read simultaneously; and once one of us finished, we donated the 2nd to the library) PLUS I had preordered a copy of the UK edition from Amazon.co.uk.
So that’s 3 sales JKR made from me alone — and I’m a heavy reader of fanfic. [Heck, I keep being tempted to buy another copy of her Fantastic Beasts book because I can’t find mine and want it as a reference to write some fanfic; so that would be a sale specifically because of fanfic!]
Just for the heck of it, I started a poll asking whether or when fanfic fen would be buying Book 5 — everybody who responded said that they would be buying it, and most had already either preordered or would be buying it on the first day. So, there’s further evidence that the fanfic isn’t hurting her market for sales.
Now we’re not paying for fanfic; at this point its mostly free and online, but look at all the CafePress merchandise that has sold for the Very Secret Diaries of Lord of the Rings, and I don’t think that hurt the movies any.
I know Star Trek had a huge fanfiction community; I don’t know whether there are any stats on how they were as consumers of official Star Trek merchandise, but I’ve heard some anecdotes on how such works did keep Trek alive between the 1st & 2nd series.
Eh, calling anything derivative of Harry Potter stealing misses the fact that Harry Potter is itself derivative of Timothy Hunter and the Books of Magic.
Didn’t mean to post and run. Plus comics especially and science fiction generally has benefitted immensely by the different fanzines and APAs which have always included derivative works like the comics churned out by the Texas Trio among others.
If it wasn’t for Bill Schelly and Roy Thomas, Comic Culture probably would have died out pretty quickly and might not have made it past the 50s.
Kevin, why would my Spiderman story necessarily diminish the market for Marvel’s? And why does that matter?
After all, no one has a right to an undiminished market. The existance of Burger King diminishes the market for McDonald’s, but we call that good: it’s competition, and it means (ideally) that consumers get more choice and better prices.
If my Spiderman comic is lousy, it won’t be much competition for Marvel’s. If my Spiderman comic is good, then maybe I will take some of Marvel’s sales away – but I deserve it, because I’m better than they are (or, at least, producing a better product). If my Spiderman comic is great, it could increase the total number of Spider-interested readers, and end up increasing Marvel’s sales.
Nothing I publish can prevent Marvel from publishing their own version of Spiderman, and in that version they have total control of the storyline. But if I’m allowed to publish, as well, consumers will be able to choose the storyline they like better – or both storylines, if they prefer. Isn’t it better to have more choices rather than fewer?
I’m not adverse to the general idea of the system we have now, but the ever lengthening of the time frame of copyright is ridiculous. Certainly no sane person could argue (although they do so argue) that someone like Rowling would not produce Potter books unless her descendants could profit from them for decades after her death. In fact, as copyright was instituted to encourage people to produce works, there is no reason for its term to be extended very much at all past their deaths.
I’m with you, Amp. I discussed this same article on my own blog, btw, here.
I have further comments but I need to run. Be back later.
ARGH. Repeat the following to yourself until it gets drilled into your head: “Copyright infringement is not the same as theft.” You may not like it, but it’s the legal truth, and it always has been.
In theft, the original owner is deprived of the original object. If you have a book and I steal it from you, you are deprived of the book. In copyright infringement, this doesn’t happen: if you have an book and I make a copy of it, you are not deprived of the book.
Kevin: if it’s theft because the original creator was deprived of a sale, then why isn’t reselling a used book is not also “theft”? Does it not deprive the author of a sale? Presumably, if nobody were allowed to sell used books, everybody would be forced to buy them new. Look around at all those used bookstores—all of those profits come from depriving authors of sales! Yes, the original purchaser of the book paid the author, but that is also true when people sell unauthorized copies of books: the original purchaser paid the author.
The reason used bookstores are legal, and making and distributing copies of books is not, is that the overall market effect of making and distributing copies would harm the market for the original book so dramatically that it would deprive society of the writing that would otherwise be produced.
Note my wording, BTW. Copyright infringement is illegal not because the author has some natural “right to control and/or compensation” over what (s)he creates and derivative works. The Constitution and the whole history of copyright law are very clear: Congress is granted the power
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; (Article I, Section 8, Clause 8)
The right is secured for authors specifically to promote the progress of science and useful arts, and it applies only for limited times. If, in practice, society found that progress in the sciences and arts could be promoted adequately by granting a copyright that expired after one day, then it would be proper to do so. If society found that promoting the sciences and arts could be done adequately without any copyright protections for books at all, it would be proper to do so.
Furthermore, the attitude of people (here and elsewhere) w.r.t. “derivative works” is pretty amazing. Every single piece of great literature in the 20th century (and before!) is a “derivative work” in one way or another. Even the “intellectual property” fundamentalists in Hollywood today are not averse to profiting handsomely from derivative works—see The Hours, which is based on a Cunningham’s novel based on Mrs. Dalloway, which itself draws on a wide array of literary sources, most obviously Shakespeare’s Cymbeline.
You may argue that there’s a big difference between Mrs. Dalloway and Harry Potter knockoffs, but it’s one of degree, not kind. And anyway, are you sure that society is not more enriched by such knockoff books than by the hypothetical additional books that Rowling (or any other author) might write because of the additional financial incentive of stronger copyright protection?
JD is on the right track about both copyright protections and the history & nature of derivative lit & art—plus it supports QrazyQat’s frustration with ever extending copyright limits. It’s not the public’s fault that Disney can’t come up with anything worthy of replacing Mickey Mouse.
But I still don’t get your reasoning, Barry. Why should you not seek at least permission from the creator (or in Marvel’s case, the company that acquired the creator’s intellectual property) to use his/her creations? You know as well as I do that a lot of time, work and energy goes into creating characters, stories, et cetera. What artist would relinquish the responsibility he/she feels towards his/her creation (not to mention the fans) so easily as to not care if some random stranger starts messing with it without at least asking permission? Especially if the random stranger starts profiting from it. Personally, I’d be pissed. Talk about expropriating someone else’s labor, y’know?
In the above, I am not talking about fan fiction, which is non-profit and really a tribute to the creator and his/her work. But in your Spider-Man scenario, there is an implied disrespect to the creator (yes, I know that the history of Marvel’s acquisition, like so many superhero acquisitions, was not exactly respectful to the creator, but that’s no excuse), in terms of rights to profit from one’s labor, but also to the hard work itself, the process of creation.
Kevin, why would my Spiderman story necessarily diminish the market for Marvel’s? And why does that matter?
After all, no one has a right to an undiminished market. The existance of Burger King diminishes the market for McDonald’s, but we call that good: it’s competition, and it means (ideally) that consumers get more choice and better prices.
Bad analogy. Spider-Man and Superman, like Burger Kind and McDonald’s, are competing brands of a more general commodity (superheroes for one; burgers for the other). Your unlicensed Spider-Man book potentially diminishes the market for Spider-Man books by not being held to the same standards of production; a potentially inferior product can alienate customers from that brand. The copyright is meant to protect both the holder and the holder’s customer from third party deterioration of the product. That Marvel diminishes its own product by lowering its own standards and offering competing titles of Spider-Man books doesn’t mean you get to do it, too. They hold the copyright, it’s their product; they can improve it or fuck it up, such is their legal right to do so. The aggrieved customer can simply choose to stop reading Spider-Man.
But more to the point: “Why does it matter?” Because money is involved. But even from a non-materialistic, highly idealized artistic perspective (i.e., utopian pipe dreams with a touch of puritanism) , it matters to the artist’s ability to control the aesthetic quality of his/her creations. It may seem selfish, a little control-freaky of the artist, but so what? It’s better than having artists who don’t give a shit about their art.
Damn, now I gotta clarify: Your unlicensed Spider-Man book potentially diminishes the market for Spider-Man books by not being held to the same standards of production; a potentially inferior product can alienate customers from that brand. Actually, what matters is the diminished product. You are right to say that no one has the right to a un-diminished market, but one does have a right to protect the quality of one’s product.
Your unlicensed Spider-Man book potentially diminishes the market for Spider-Man books by not being held to the same standards of production;
Point of order, sir: that’s an unfounded assumption. Amp’s Spidey books might well be held to a higher standard of production than Marvel’s. In which case, by extrapolation of your argument, Amp might well be entitled to ‘ownership’ of Spiderman, as he’d shown he could do the job better.
Actually, I meant “diminish the product” not market, but you got the point. And I had anticipated this objection in noting that Marvel bearing the copyright allows Marvel to do as it pleases with the quality of the product. However, classic economic thinking would assume (rightly or wrongly) that the artist holds the best interests of his/her art at heart, certainly “at wallet”, and as originator of the intellectual property, has the primary responsibility to maintain, if not improve, the artwork. If Barry wants to do a Spider-Man book so badly, he should send Marvel a proposal (but before you do, Barry, finish your swell Dicebox work….which I assume you acquired permission to do; if not, I’m tellin’ Jenn!)
But here’s what I don’t get. Why does the possibility that Barry might write a better Spider-Man story exempt him from the normal protocols? Why should be allowed to usurp copyright privileges? More broadly, on what grounds does an artist have the right to appropriate the intellectual property of another artist. And I don’t mean “wizard who goes to magic school” generalities, but actually writing Harry Potter stories without knowledge or permission from JK Rowling? Simply because you could write a better story? If that’s the case, why not put in a little more brainwork and create a better character, a better world?
Thanks, JD, for saying a lot of stuff I wanted to say–spot on, every bit of it. Let me amplify your point just a bit: There is no such thing as intellectual property. It is a common legal term, but it’s a misnomer; property implies ownership, but nobody owns ideas. What you can own is a temporary, limited monopoly on the use of an idea–and I strongly believe that that monopoly is currently too broad in scope (as well as far too long-lasting).
I must say, I find a lot of the arguments in favor of allowing authors strict control of derivative works to be somewhat irrational.
Kevin, you implied earlier that you didn’t object to fan fiction because it was “non-profit and really a tribute”. In the first place, that means you’re already halfway to agreeing that the law needs to be changed, because copyright law currently forbids fan fiction to be published, even for free–and Paramount, to name but one example, has shut down Star Trek fanfic sites on that basis. In the second place, you said that this was about an artist’s right to protect the aesthetic quality of his or her work–but how can something become a commercial use if it isn’t good? If the fanfic sucks, there won’t be a market, and it’ll remain free. I sense a contradiction.
WRT the specific example of Barry’s hypothetical Spider-Man comic, you mentioned the danger of inferior Spider-Man stories diluting the value of the “brand”. But Spider-Man isn’t a brand. Marvel Comics is a brand. Spider-Man is a character–just like Santa Claus, Ebenezer Scrooge, Hamlet, Alice, the Hunchback of Notre Dame, and Madame Bovary, all of whom people have told stories about with absolute impunity and without, so far as I can tell, doing the slightest harm to the reputations of Clement Moore, Charles Dickens, Shakespeare, Lewis Carroll, Hugo, and Flaubert.
Human beings daydream, embellish, and tell and retell stories; it’s been that way at least since Lascaux. You hear a story or a song, or see a picture, and you take it to heart, make it your own, carry it forward. This notion that only the person who thought of it first should be allowed to play with it runs contrary to human nature–would Homer have remotely imagined that only he had the right to make up stories about Odysseus? It’s absurd.
There are millions of children across the world right now playing let’s-pretend games at the playground about Harry Potter and Hogwarts. One of those kids is a gifted storyteller, and has already come up with a Harry Potter yarn you’d probably really like. She’ll probably tell it to her friends or her little brother, and it’ll be really great and they’ll love it.
I don’t see how, aside from the scale of the thing, that’s any different from Barry selling a Spider-Man comic (with, presumably, a compulsory kickback to Marvel for the character license). There’s nothing magic about publishing; it’s just a bigger group of kids you’re telling your story to.
I can see both sides of this argument. In terms of control over how the character is used, I can appreciate the way that artists (or copyright holders) feel possessive of their creations (or meal tickets). OTOH, as the controversy with DC’s use of rights to discourage published academic analysis of homoerotic subtext in Batman stories– or Margaret Mitchell’s estate’s unforgivable quashing of “The Wind Done Gone”– demonstrate, possessiveness of a character or work can have a truly detrimental effect on discourse and art.
So, wishy-washy as usual. :)
I’ve never been able to understand why stories can’t work in the way that songs do. Or, at least, how songs hypothetically work.
When a musician does a cover fo the song, then he (or she) can freely put it on his album and sell that album so long as due credit is given to the original writer of the song and a small percentage of the royalties from the album are paid to said original writer. If a cover song, or highly derivative song, is recorded and sold and does not give credit to the original songwriter and doesn’t pay a percentage of royalties to the original songwriter then the original songwriter can sue the cover artist.
I don’t see how this couldn’t work with works of fiction as well. If someone wanted to write a Harry Potter book then she (or he) could simply agree to give AOL Time Warner and Mrs. Rowling a percentage of the revenue from the book’s sales. If she, the cover writer, sold a Harry Potter book that didn’t give credit to Mrs. Rowling and didn’t pay her a small royalty, then Mrs. Rowling and AOL Time Warner could sue the cover writer. Also, if the cover writer wrote a Harry Potter book and claimed that it had been written by Mrs. Rowling herself, then AOLTW/Mrs. Rowling could take care of that through legal means as well. (This is akin to the way that Me First & the Gimme Gimmes can lawfully record a punk version of Sloop John B. so long as the Beach Boys get a cut of the profits and, I believe, give permission, and that Me First & the Gimme Gimmes at no point in time claim that either they were the original writers of Sloop John B. or that their version of Sloop John B. is, in fact, the version recorded by the actual Beach Boys.)
Rather than making a blanket legal assertion that all uses of the Harry Potter character were illegal for copyright reasons, this situation would allow for derivative works to be dealt with on a case-by-case basis. That still has the potential for problems (judges ruling against a derivative work because it contains slash rather than for royalty infringements) but at least artistic freedom wouldn’t be as trampled on.
As a writer I must confess that I am nervous about turning my characters and worlds over to other people to do with as they may, but I think that since this is going to inevitably happen anyway, I may as well: a.) not stifle someone else’s creative impulses and, b.) get paid for it.
I don’t think such a situation would cut into sales any more than people would stop buying “Hamlet” because of all the awful performances and movies made from it, or because of things like “Rosencrantz and Gildenstern are Dead.”
Why does the possibility that Barry might write a better Spider-Man story exempt him from the normal protocols? Why should be allowed to usurp copyright privileges?
‘Copyright’ is a legal concept rather than a philosophical or moral one, and in my understanding, ‘normal protocols’ have more to do with scholarship and proper citation of one’s source materials. I mention this only because I’m wanting not to confuse the two.
Copyright vests in the author of an original work for a limited period of time only. That the US Congress has of late been exceedingly generous in extending those times in the last century till well beyond the deaths of the original creators, in order to allow certain corporations to continue to rake in pots of money from licensing, does not alter the stated purpose of copyright: to encourage creative people by granting them a short-term monopoly on their work, and encourage further creation by allowing that monopoly to expire after a reasonable length of time.
(Note that I was not arguing that Amp should be able to write Spiderman stories in despite of copyright if he could do a better job, only that the assumption that his product or production values would be ipso facto inferior was unsupported.)
More broadly, on what grounds does an artist have the right to appropriate the intellectual property of another artist. And I don’t mean “wizard who goes to magic school” generalities, but actually writing Harry Potter stories without knowledge or permission from JK Rowling?
The history of western civilization is just that– derivative works based on ideas, characters, images and stories that have been published widely enough to have become part of the culture. According to Lawrence Lessig, in Copyright Law and Roasted Pig, it has been an abnormally long time since any creative work has naturally been allowed to become public domain. What we are experiencing, perpetual monopolies on use and reproduction of creative works, is not normal.
None of the Potter books are near even the traditional limits of the monopoly grant, and so aren’t good examples unless one wants to question the existence of copyright. A better might be LoTR. First published in the 1940’s, I believe JRRT’s son still holds copyright to it and the rest of his father’s work, and as far as I know, will pass it on to his heirs when he dies.
Simply because you could write a better story? If that’s the case, why not put in a little more brainwork and create a better character, a better world?
In my view, it’s more a matter of someone being allowed, legally, to write original stories using the characters and worlds they care about. Laurie R. King has published a series of mystery novels in which Sherlock Holmes is a major character (though not the protagonist). Are they lesser works, or she a lazier writer, because of this? Someone else, thirty years hence, might want to write stories featuring Hogwarts-trained wizards and Muggles, but unless copyright law returns to its original limits, that may not be legal without permission from Rowling. Legal or not, I can’t see that it makes that hypothetical author a better or worse writer. At the rate Rowling’s world is binding itself to the collective cultural consciousness, I’d be very much surprised if talented, able writers do not want to include major elements from it in their own works.
“Eh, calling anything derivative of Harry Potter stealing misses the fact that Harry Potter is itself derivative of Timothy Hunter and the Books of Magic.” Except of course that it’s not, and Neil Gaiman has as much as said so. We’re not talking about similar ideas and concepts, we’re talking about derivative execution or outright trademark swipes.
“Kevin, why would my Spiderman story necessarily diminish the market for Marvel’s? And why does that matter?” It matters because you’re taking something that doesn’t belong to you. Marvel is LEGALLY OBLIGATED to defend their trademarks, or they’re in danger of being lost. Whenever possible they prefer to turn a blind eye to trademark violations (fanfic, convention sketches, etc.) – which, BTW JD, is not the same as copyright infringement – but when the violations are officially brought to their attention they HAVE NO CHOICE. If they wave the small fish onward, there’s nothing to prevent the big fish competition from saying in court “See? They let Fanzine Guy use their characters, obviously the trademarks are up for grabs!”
“It matters because you’re taking something that doesn’t belong to you.”
False, as several others have described. The character of Spider-Man doesn’t belong to anyone–Marvel only owns the copyright on that character. The distinction is important. And compulsory licensing arrangements do not take copyrights away from their owners; if they did, then songwriters whose songs are covered by other bands or played on the radio without their having given permission are also being “stolen” from.
“Marvel is LEGALLY OBLIGATED to defend their trademarks, or they’re in danger of being lost.”
This is so oversimplified as to be effectively false, and is also irrelevant. Trademark law and copyright law are two entirely different things, and copyright is the one that applies to derivative uses.
“Whenever possible they prefer to turn a blind eye to trademark violations (fanfic, convention sketches, etc.)”
That’s nice of them, if true, but not all companies are equally broadminded.
“which, BTW JD, is not the same as copyright infringement”
Oh, it sure as bloody hell is.
“but when the violations are officially brought to their attention they HAVE NO CHOICE. If they wave the small fish onward, there’s nothing to prevent the big fish competition from saying in court ‘See? They let Fanzine Guy use their characters, obviously the trademarks are up for grabs!'”
False. Trademarks aren’t copyrights, and copyrights don’t disappear because of unauthorized use. (And neither, BTW, except in narrowly defined circumstances, do trademarks, but that’s neither here nor there.)
Furthermore, Barry’s proposed scheme–a compulsory licensing fee for use of characters and settings–wouldn’t even deprive them of income. (Personally, I’m not even in favor of that, but I’d be willing to accept it as a compromise.)
hmm. this thread is oddly reminiscent of ones prior.
one of my favorite quotes of all time is from pete seeger: “plagarism is key to all culture.”
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