Wondering about the Harry Potter lawsuit and what impact it could have on user-generated content norms, copyright law, and (though rarely even raised in discussions of this case) kids' digital culture? Me too! As everyone waits for the judge to decide whether or not Steve Vander Ark's The Harry Potter Lexicon consists of copyright infringement or fair use, analysts are predicting that the outcome of the case could have some pretty important implications for the future of digital IP. For example, check out this recent video by marketing guru Martin Lindstrom over at AdAge, in which he argues that the Harry Potter case "underscores the growing threat posed by user-generated content for major brands." Hmmm...either that or the growing threat posed by stringent copyright regimes and corporate attempts to squash fair use/dealings for our chances at sustaining a shared, user-based digital culture.
What troubles me about the Harry Potter lawsuit is that although the accused in this case is an adult, the object under dispute is nonetheless children's culture. I doubt anyone, especially J.K. Rowling, would ever go after a child for appropriating her text...though I'm not so sure that this would necessarily extend to the unlikely scenario of a child attempting to publish these appropriations for profit. But the fact remains that these discussions, lawsuits, and (potential) copyright expansions are taking place within the realm of kids' culture, which will surely have an impact on how this culture develops, what space is allowed for UGC in the future, and how kids' perceive what's allowed and not allowed when it comes to branded characters and stories. I doubt there are many Harry Potter fans - of any age - who haven't heard by now that if you write fan fiction about Harry Potter, you could get sued, or at least make J.K. Rowling very upset with you.
I can hear the counter-arguments already - that protecting the rights (and profits) of the author is paramount, and that in today's digital age it's more important than ever that kids learn about copyright at a young age, before they get themselves into trouble. Whatever - the case for fair use (and fair copyright) has been argued at length and by much more eloquent writers than I, and I would point anyone who thinks differently to the works of Rosemary Coombe and Michael Geist, or to the many background documents being used in the ongoing Fair Copyright for Canada campaign. But I also think that when we're dealing with kids, this issue of appropriation and fan culture becomes even more complex. For the past three decades, research into children's culture and play have found a steady rise in the presence (and prominence) of "media traces" (to borrow Maya Goetz's term). And I'm not just talking about branded toys and games here, but also kids' own imaginative and creative expressions. Examples of how kids' themselves incorporate media characters into their everyday lives include everything from role-playing Spongebob and Patrick, to drawing pictures of Pikachu. And many of the arguments against 'media effects' when it comes to the branding and licensing within children's culture focuses on creative appropriation as an important way that kids make sense of the media presence in their lives, as well as engage with the larger culture, challenge dominant ideologies, co-produce a shared culture with other children, etc. Proponents of this argument point out the various ways that kids manipulate branded toys, for example, in unexpected and even deviant ways, completely disregarding or even subverting the scripts provided by the commercial media. A He-Man doll can thus just as easily attend a tea party as engage in a battle with Skeletor, a Barbie doll can be transformed into a magic wand, and a Lego Racers videogame can be used to stage elaborate and repeated Lego-man seppuku.
But just as I've been arguing (here and elsewhere) that technological design can be used to reduce or even eliminate these types of alternative readings and subversive play practices, I also think that legal systems (such as copyright) can be and are increasingly used to limit, contain, rationalize and commercialize kids' culture. And this happens in a variety of ways - through the elimination of opportunities to generate content, or by placing restrictions on what and how that content is generated (limiting freedom of expression and undermining children's agency); through corporate claims of IP ownership over child-generated content and submissions; and by teaching kids from a very young age a corporate reinterpretation of copyright law...ignoring fair use and obscuring the principles upon which copyright was based in the first place. As these practices become the industry standard (and in fact begin to be programmed right into the design of online games and environments), the space for children to appropriate, manipulate, subvert, make sense of and have some sense of ownership over their shared culture becomes increasingly scarce, increasingly threatened.
For more legal discussions of Harry Potter, I recommend an issue of the Texas Wesleyan Law Review from 2005 (volume 12, number 1), which includes a great selection of articles examining how the law is represented within the Harry Potter universe. I wonder if there are parallels between these textual representations and the arguments put forth in the current lawsuit...in the same way that Jarrod Waetjen and Timothy Gibson found intertextual readings of commercialism within and around the Harry Potter franchise (see Harry Potter and the Commodity Fetish: Activating Corporate Readings in the Journey from Text to Commercial Intertext).
Finally, to all my friends and family back home: Je vous souhaite une bonne St-Jean Baptiste!!!!