Tuesday, June 24, 2008

The Harry Potter Lawsuit and CGC

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!!!!


Anonymous said...

Sara: Your essay is fascinating. I have blogged extensively on the Lexicon Lawsuit since the beginning last October and you wouldn't believe the mixed messages going on in Fandom: on the one hand JKR is "totally right" to sue because she is the author, and on the other hand fans of all ages are terrified that JKR/WB could "clamp down" on their fanworks. It's that threat that has made many people automatically believe the HP Lexicon book should never be published, though the website is well-respected and it has been online for years. Many Harry Potter readers have become basically anti-Fair Use due to this case, unfortunately.

I would love to link to your blog, and if you would like to jump into our discussions, please feel free to join us.
Cheers ~ SIP

Anonymous said...

Ms Grimes, I find it odd that a student of communication should be spreading such pernicious falsehoods. 1) No one who writes fan fiction has been threatened with a lawsuit. Your contention that such writers will be sued or will upset JK Rowling is false. 2) The 50-year-old library media specialist, Mr Vander Ark, who maintains the Harry Potter Lexicon, is NOT being sued and neither is the website hp-lexicon.org. Only the publisher of the book version of segments of that website is being sued. 3) The proposed book is the most child-unfriendly book imaginable. It spoils every major plot twist and reveals every climatic moment. The first thing a child who turns to the "Harry Potter" entry in the Lexicon book will read is what happened at Godric's Hollow the night Harry's parents died. 4) RDR Books conceded during the trial that the book was not scholarship or literary criticism and was unsuitable as a ready reference for the first-time reader. 5) The Lexicon website was largely generated by young readers sending in suggestions, comments and corrections; the Lexicon book is an attempt to profit from the generous spirit of these HP fans. 6) JK Rowling, far from being restrictive of her IP, has been most generous to her fans and allowed fan art, fan fiction and fan music to flourish. That is, as long as these are genuine fan activities and not commercial ventures, then the normal copyright laws apply. 7) The Lexicon book is NOT fair use. An analysis of any entry -and the MS can be found among the court documents posted online- will reveal that the book consists of a rearrangement of JK Rowling's words into an alphabetical list with no additional commentary, review or criticism. 8) JK Rowling has not opposed books about Harry Potter. Indeed, there have been scores of books about Harry Potter published in the past ten years.

If you wish further imformation, I suggest you contact Melissa Anelli at The Leaky Cauldron or Emerson Spartz at MuggleNet.

Sara M. Grimes said...
This comment has been removed by the author.
Sara M. Grimes said...

rattlesnakeroot - thank you and please do link up! the "cultural life" of intellectual property law (as Rosemary Coombe would say) is, i think, one of the most fascinating (and sometimes troubling) dimensions of copyright - thank you so much for sharing your insider perspective with me. i will be following this case with interest, and appreciate the invitation to discuss further.

Sara M. Grimes said...

***Reposted with revisions***

Dear Anonymous - I invite you to reread the post a little more carefully, as I think that you may have misinterpreted parts of it (particularly those relating to points 1-3). Some of your criticisms appear somewhat misplaced, as they are directed at claims and dimensions of the case that I have not made or commented on, though perhaps these may appear in the materials linked to through this post.

As for my main argument around fair use and fan appropriations/UGC, I may indeed be guilty of a little "slippery slope" logic, but then again it is often through individual cases and decisions that stringent copyright regimes come into being. And this is indeed the direction that IP appears to be headed these days...copyright regimes continue to be strengthened in the favor of corporate interests, and fans and audiences are left to make do with whatever freedom is afforded at the margins.

The question is not whether or not Rowling is "generous" with her IP - I challenge the very idea that it should be up to the author/publisher/copyright-owner to determine what is fair or not fair when it comes to the audience's relationship and interactions with what is very much a part of the shared "mass" culture. Instead, I think that space for fan fiction, appropriations and other forms of engagement should be made and protected within IP law (ideally within a democratic system where a nation's law is at least in some way agreed upon by its citizens). Cases such as this one may not have a "one-to-one effect" on fan culture, but they do contribute to a growing norm within both courts and culture: the privileging of corporate-biased IP claims over the interests of average users/audiences/fans and citizens.

As I mentioned previously, however, I do appreciate both your clarifications and criticisms on this very interesting case.

Anonymous said...

Thank you for the kind words, Sara. I think you hit the nail on the head when you say that the author or Corporate owner (WB) is not the one who should decide which works are Fair Use. Some copyright owners would say that nothing is Fair Use, ever. That is why the law is set up as it is.

In her letters to the court, JKR implies that if she loses the case that she and WB might have to take measures against people on Fansites. It's an appeal to fear that has been very effective in turning people against RDR books and Steve Vander Ark. (And yes, Anonymous is correct that it's the publisher who is the real defendent, but Vander Ark is bound by a contract to RDR).

Anonymous: So the Lexicon is "child-unfriendly"? What if a kid is just trying to look up a spell-word to recall the meaning? What if they are trying to recall a chapter in which Harry made a certain potion, or used a magical object? What is unfriendly about that?

The problem with your number 3 argument is that every child knows what happened at Godric's Hollow after a couple of chapters of Book One - Harry's parents died. That is why he is an orphan from page one. There's no mystery about that - Harry also knows they are dead. That is a public fact, too - nearly every book review from the last ten years has called Harry an orphan.

A bigger question is why any child would be reading the Lexicon if they haven't read Book One? No one, child or adult, is going to sit and read Lexicon entries in place of the actual books. That is the real slippery slope in my opinion.

Anonymous said...

Greenberg was wrong. The Academic really is kitsch and the Kitsch is academic.

Sara M. Grimes said...

anonymous: the politics of taste figure quite prominently in this debate, i agree -- issues of distinction, class and ownership, and a convenient alignment of moral righteousness with capitalist imperatives. thank you for raising the question of high/low culture, bad/good taste...i think this adds a lot to the debate, as the polarized response to this case is indeed likely driven (at least in part) by the fact that these forms of cultural expression and engagement are traditionally dismissed as "low", "derivative" or "kitsch".

Sara M. Grimes said...

thanks rattlesnakeroot! i completely agree.

R said...

I responded to your concerns about children and copyright on my blog .