Potter Publisher Going After Fan Fiction In China
from the how-dare-fans-encourage-more-reading! dept
In the past we've covered various stories of how author J.K. Rowling and her publisher have been needlessly aggressive in trying to enforce copyright claims dealing with Harry Potter. Years ago, we noted that Rowling didn't seem to mind fan fiction, as long as it didn't involve "adult" themes. However, when the money starts rolling in, perhaps things change. The NY Times has an article that claims to be about copyright infringement and counterfeit Harry Potter books in China, but the details suggest it's really more about fan fiction. The article focuses almost entirely on non-authentic Harry Potter books, often written by fans, that are then sold to a Chinese market clamoring for more Harry Potter. In those cases, it's much less a copyright issue and much more of a trademark one. However, as Against Monopoly points out, this has apparently spurred greater interest in reading among kids, so of course Rowling's publishers are looking into stopping these books from being sold. You can certainly understand Rowling's worry about being wrongly associated with works that she had no part in writing... but you have to wonder if she's perhaps missing an opportunity by simply sending in the lawyers. Clearly, there's demand for these works, and it doesn't seem like the demand in any way harms the commercial possibilities for her own works. If anything, it may drive even more interest in the legitimate books. These aren't substitutes. The only reason people want these fake Harry Potter books is because they can't get enough of the real thing. So why not encourage that kind of activity to help grow even more interest in the real product?
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Filed Under: copyright, fan fiction, harry potter
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Sure, she could make more money by trying to license the Harry Potter name, but she doesn't have to. At this point, she is probably one of the few women in the world who doesn't want or need more money.
I generally agree with much of the I.P. related articles you post, but this one is a real stretch.
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Re:
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If she doesn't want more money then...
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Re: If she doesn't want more money then...
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Fan Fictions are GOOD
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the real motive comes out?
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Re: the real motive comes out?
Why do you say that? I've been reading, writing and consulting in this space for nearly a decade. I find it amusing that people tell me I'm uninformed but never bother to explain how. If I'm uninformed, inform me.
Either way, as I've said repeatedly, my position is not concerned with the *legal* rights, but the best business position for encouraging innovation. If I believe the law is bad for business, then I will say so. That may make some folks (such as yourself) assume incorrectly I don't understand the law, but that's not the case at all. I'm simply trying to explain where the law doesn't make sense.
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Re: Re: the real motive comes out?
Usually, I support your views. However, I don't fully agree this time because I interpret writing a derivative work for profit without permission is at least trademark infirngement, and beyond "fair use" (if that still exists!). And specifically, writing about the main characters does not sound much like innovation, IMHO. I see innovation, in this case, probably along the lines of alternative characters in the same universe.
Just my 2cts, and no, I'm not the 1 who posted the comment you were responding to... peace
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Re: Re: Re: the real motive comes out?
Which is exactly what I said in the post, so I'm not sure what you're disagreeing with.
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Re: Re: Re: Re: the real motive comes out?
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Re: Re: the real motive comes out?
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The real question is...
Would the Publishers and Ms. Rowling be all up in arms?
I do see her point, that if people are selling their "fanfiction" then the fans might actually mistake it as Ms. Rowling's work and be discouraged by what they read.
But at the same time, if someone gave away this "fanfiction" because as someone said it was their "creation of worship" I doubt the Publisher would have reacted in this manner.
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Harry Potter books
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Re:
Again, read what I said. I'm simply asking what harm it's doing to let these sales continue? I do say that you can understand her concern, but if it's not harming her, then what's the issue?
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The difference between hobby and illegitimate busi
What you have to understand about writers is that they spend so much time and effort to create a world and the characters in that world. For them this is not a purely economic issue; it's about control of your own creation. I have a great amount of respect for Rowling to say, "There's going to be 7 books, because that's as far as the story needs to go, and that's it." If she just continued to put out books because she could, or if she just farmed it out to other authors so she could sit back and rake in money, I would totally lose respect for her as a creator.
There are times when you guys have to ignore the economic issue and think about this from a creator's standpoint.
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Selling it, if it is not criminal I can sell computers I build in my garage and label them Dell.
I can record and sell my new album "The Beatles" "A collection of lost recordings".
I can also start writing "Star Wars Episode 7" "Return of the living dead Jedi"
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Harry Potter style
Another example is anime cartoons with big eyes. Back in the 1960's there was a cartoon named Astro Boy that looked a lot like the Japanese characters do today. Are you saying that anyone who draws in this style is guilty of infringing? Just who owns the 'big eye' drawing style?
So what is so different about the Harry Potter style? Can I not make a scary book? Can I not print the title with spooky script? Can I not use the name of Harry - that's a pretty common name. Seems to me that the publishers are reaping where they have not sown. Besides, copyright varies from country to country, so much so that the Beatles could never sell any of their re-releases in Japan.
I think that dirivitive works should be allowed. If Rawling is such a good writer, it should be just as easy to differentiate her quality product from the copy cats as to tell the difference between musical groups. To do otherwise is to open up a huge amount of litigation. Too much litigation is a bad thing for any kind of art.
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Re: Harry Potter style
The "if it doesn't hurt someone, what's the harm?" mentality is very close to the "if you didn't do anything wrong you have nothing to hide" mentality. I am surprised you would see it this way given your feelings toward most other issues.
Yes, economically the best thing the publisher could do is license these books and share the wealth. Letting it go wouldn't hurt them economically either because I doubt these particular books are cutting into the original book sales. They may even encourage more sales of the original book, as you stated.
However, you are disregarding one of the prime rights given to a creator: control of their work. While economic value is a result of one holding a copyright to a valuable work, of equal value to many is the knowledge that their work can't be distorted or changed (no matter how good or bad it is economically) unless it is with their consent. I know many that wouldn't even release their work if this type of protection was not allowed. Someone that pours years of their life into a creative work has a deep connection with it. This isn't about getting money, it's about Rowling keeping control and her connection with her creation.
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The artist's perspective
The harm, like I mentioned in my earlier comment, might not be economic, but there's more than economics here. It is about art and the creation of that art. I have no problem with artists deciding to put their work out there and say, "Hey, do with this what you will." I think there are some cool opportunities there. But for someone to decide to make a quick buck off of someone else's work is not right. The whole title of the post is misleading, because the whole point of fan fiction is that it is done for the love of the characters and world, not to make money. Also, it doesn't try to pass itself off as legitimate works approved by the author. Think about this like an artist, and not an economist. There is more to this than economics.
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Re: The artist's perspective
So then your defining harm as hurting an artist's feelings?
The economic argument is the only thing that could hold a candle in court. Personally I think they should make steamy hot Potter novels where he shags all the girls in Hogwarts and then sell it around the world.
If people will buy it....:)
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Re: The artist's perspective
Perhaps it's just the world that I come from, but this doesn't make any sense to me whatsoever. If no harm is being done, what's the problem? The net result of the position you take is a negative for everyone. It harms society, whereas my position harms no one. I don't see how you can justify your position over mine -- especially by claiming some sort of moral right.
Think about this like an artist, and not an economist. There is more to this than economics.
If I think about it as a creator, I still don't see your point. If someone finds my content interesting enough to create derivative works and add more value, that's fantastic -- even if I don't directly benefit from it. Why should I complain?
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Dilution of IP
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Re: Re: The artist's perspective / Dilution of IP
The issues involved here are threefold: creative, financial, and legal. From a creative point of view having more variety in the market can only be considered a good thing - assuming a certain level of quality, of course. :-) there is a huge volume of Harry Potter fan fiction available on the Internet as it is, much or most of it ranging in quality from between 1/10 to 5/10 -- stuff that you'd never see on bookshelves. And that's already assuming it's not pornographic. If the higher-quality material can get wider distribution I think that would probably improve the status of the Harry Potter creative universe, rather than detract from it in anyway.
From a financial perspective I'm quite sure that while J.K.R. has more money than she knows what to do with right now, I'm equally sure that Scholastic would want to exercise its corporate greed in obtaining any additional revenues from any other sources possible. That's a standard practice for any corporation. As such, ignoring not for profit works, while vigorously pursuing any work that would bring the creators any profit is hardly surprising, whether in Scholastic, or in any other business or corporation.
Finally -- and most importantly -- is the legal considerations involved in this pursuit. Modern intellectual property law quite specifically requires the holder of any IP to vigorously pursue any and all infringing work. Failure to do so in even a single documented instance can result in the courts -- especially when prompted by other corporations seeking to make a profit -- to claim that a trademark or other intellectual property has become ‘diluted’. Once that occurs, the cliché “give an inch and they'll take a mile” goes into effect, and from that point on any other individual or company can use and abuse that IP in nearly any fashion they desire. As a direct example of the circumstance, if JKR and Scholastic books do not vigorously pursue the fake Harry Potter books being sold in Asia, and that would permit American companies to freely commercialize existing public domain and made for hire fan fiction and offer it for sale for-profit as they wished, with neither revenue nor control going back to either Scholastic books or JKR.
While some people may consider this a good thing, one can easily see the consequences if one extends this to its logical conclusion: allowing anyone to freely parasitize anyone else's creative work. This would quickly result in a situation where media conglomerates would not bother to compensate creative authors except in the most meager degree -- even less than they are doing now. Instead, the media companies would simply wait for the intellectual property to become available through other means, and then take the authors work to promote and exploit it in whatever manner they chose.
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It's not about style or genre conventions
Everything you mention here has nothing to do with what was actually going on. We're not talking about writing a novel in a genre or style. We're not talking about "Oh, you can't have wizards because someone else has already used those." Sounding like another band, or writing like another author is not the point. The point is passing derivative works off as if they are the real thing. All writers and musicians (of which I am both) and all artists in general take inspiration from others. We take ideas, concepts, sentence structures, description from each other, use them in new ways, change things up. Many of the British Invasion bands you mentioned were heavily influenced by African-American blues music; they took those ideas, made something new. Sometimes they were trying to sound just like those artists. But they didn't record an album and stick one of those blues musician's name on it and pretend it was the real thing.
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More like fraud to buyers
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good idea
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You won't be getting another dollar of my money you greedy witch.
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Re: the artist's perspective
Exactly how does an artist retaining some measure of control over their work for a reasonable amount of time harm society? I'm not suggesting that the whole "wizard school" genre be reserved for Rowling. I'm talking about her specific creations. It's a bastardization of her creations, done for someone else's profit. False Potter creations, especially if they are done under the guise of the real thing, can end up harming the franchise as a whole, because the quality is bound to be less than the original, but it is pretending to be the real thing. That's my whole point.
Despite the title of your article, this isn't about fan fiction, even though your arguments continue to be made from a fan fiction perspective. If this was just fans writing stories, posting them online, and everything, I would have no problem with it. I totally agree with your position, as it relates to fans writing characters they love because they want more. I would even agree if your position was that Rowling should consider licensing her works so that derivative works could be made. I even agree that the copyright term should be drastically lessened.
I know that it seems that economically it would be a good idea to let these derivative works go. But I know that fans have a tendency to be a bit fickle. They'll go all crazy for more of something, then turn the moment something disappoints them. Derivative works of lesser quality that claim to be legit can end up hurting the series as a whole because of that association, especially as time progresses, and some memory of the original fades.
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Re: Re: the artist's perspective
So based on the original article, Mike is just as much justified to focus on the fan fiction part, as you are on the books being passed off as the 7th book, or as other (non-existent) volumes from the (official) Potter collection. In fact, since we're on Techdirt, not the NY Times article, one could argue you're not justified at all to keep going on about the instances Mike is clearly not talking about.
Furthermore, I don't think it makes any difference whether you post fan fiction online for free, or sell it (online or hard copy)... what is the difference? Let's say somebody writes a Harry Potter story, and in no way, shape or form, explicitly or implicitly, promotes it as being a real Harry Potter book (as in, written be Rowling). How can it be ok to post this "book" online for free, and not be ok to have it printed and sold?
I totally understand Rowlings concerns, but as long as a unrelated book is not in any way attributed to her, and the real author is put on the book, how can anybody mistake it for her work?
I also think the concept of derivative work is somewhat of a stretch when it comes to books, at least within the boundaries of fan fiction, ie, somebody writing a completely original story (even though they use existing characters).
I totally see that with regard to music/movies/tvshows, because there an integral part of a certain song/movie/tvshow is copied/reproduced and used as such.
In the dicussion here, we're essentially talking about the re-use of names (of people, activities, places,...) which, as long as one wouldn't copy (or use in a modified form) text from the original books, to me seems too little to be any infringement or justify being a derivative work.
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Re: Re: the artist's perspective
By putting a limit on what society can enjoy. If you read the original article, it's clear that plenty of folks in China get enjoyment from these alternative Potter books. Blocking them when it causes no harm to Rowling limits that benefit. Hence the harm to society.
False Potter creations, especially if they are done under the guise of the real thing, can end up harming the franchise as a whole, because the quality is bound to be less than the original, but it is pretending to be the real thing. That's my whole point.
You're making a different point here, saying that the bad offshoots hurt the brand, but you need to provide a lot more evidence than that. After all, there are already tons of these books in China and it seems to have only INCREASED demand for the real thing, even if the fakes aren't very good. So you claim that it will harm her brand, but there's no evidence that this is actually the case.
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What the article you link to describes isn'tt fan fiction at all, as I understand the term.
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