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I'm Just Wild About Harry

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Read what I write but watch what you yourself say and write, or you're going to court and my lawyers will destroy you!

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Two weeks ago Hillary Clinton's book, Living History, was published.  This last week the two new releases were J.K. Rowling's new Harry Potter book, The Order of the Phoenix and Ann Coulter's new book Treason.  One a fantasy about magic and vengeance and justice and such, and the other is about how truly evil political liberals really are.  Heck, maybe they're about the same thing.
I know a few parents who were at midnight bookstore events for the release of the Potter book.
I don't have much to say about Treason.  This week Coulter was on the Fox, MSNBC and CNN news shows chatting up her book - and the book itself has been written about hither and yon because her newest contention is that Joe McCarthy was right, there were communists everywhere in the fifties, and Joe was a real American hero, just misunderstood.  He was a good guy doing the right thing.  I guess you'll have to read the book.  So Joe gets rehabilitated - six or eight columns on the right this week alone.  Check out NewsMax.com or Townhall.com if you'd like.  But this is not about Treason.  It's about something else.
One of the most acrimonious discussions I've had with two good friends was two years ago regarding copyright law, of all things.  We never did solve the problem of The Sun Done Gone - my friends contended that the publication of that book should have been stopped.  Printing and distribution of it should have been absolutely forbidden.  I said no, it's fine.  The book is commentary.
You might recall the augments over this supposed sequel to Margaret Mitchell's novel, Gone With the Wind.  The black author, Alice Randall, and the Mitchell estate fought in the courts over Randall's right to publish this pretty sardonic take on what happened at Tara after Rhett left the scene for good.  The novel, The Wind Done Gone, was finally published in late 2001.
A three-judge panel of the 11th U.S. Circuit Court of Appeals on October 10, 2001 affirmed a previous court's decision to block an injunction against publication of The Wind Done Gone.  The panel said it wasn't clear whether Alice Randall's book parodied Gone With the Wind.  But the judges said Margaret Mitchell's estate hadn't demonstrated a likelihood of success for its claims, part of the standard for an injunction.  The claims were that Randall used characters and quotes from the Mitchell book without permission and without paying royalties.  And these would never be granted because Randall was attempting to make a profit from Mitchell's creation.  They were Mitchell's characters and Mitchell's plot and Mitchell's words, not Randall's.
The panel heard less than an hour of arguments on an appeal by Boston-based publisher Houghton Mifflin before issuing its ruling from the bench.  In a brief order, the judges said the injunction was an "extraordinary and drastic remedy" that "amounts to an unlawful prior restraint in violation of the First Amendment."
So The Sun Done Gone went to press, and sank quickly because actually it wasn't very good.  A black take on Gone With the Wind should have been better, I guess.  The market provided its own injunction.

As history tends to repeat itself, now Scholastic Press (books) and Time-Warner (film rights) are going to court to stop the publication of ersatz Harry Potter books, and to seek damages for those already out there.  Tim Wu in Slate wrote a survey of these efforts this week - "Harry Potter and the International Order of Copyright - Should Tanya Grotter and the Magic Double Bass be Banned?"  (Friday, June 27, 2003  SLATE.COM) 

Wu reviews, from China last year, Harry Potter and Leopard-Walk-Up-to-Dragon, in which Harry encounters sweet and sour rain, becomes a hairy troll, and joins Gandalf to re-enact scenes from The Hobbit.  Cool!  From Russia?  Tanya Grotter and the Magic Double Bass.  Seems that Tanya rides a double bass, has a mole instead of a bolt of lightning, and attends the Tibidokhs School of Magic.  From Belarus?   Porri Gatter and the Stone Philosopher.  Here Harry has a grenade launcher and re-fights the White Russian wars.  Just amazing.  I'm glad Tim Wu has researched all of this.  I'm not going to run out an read these things.

Wu notes a victory for Rowling against all this, here and there.  On April 4 this year it seems Rowling's attorneys persuaded a Dutch court to block the import of Tanya Grotter to Holland.  Harry Potter in Calcutta, in which Harry meets up with various characters from Bengali literature, was recently pulled by its Indian publisher under threat.  Hey, this is business.

But there is something in all this that bothers me.  Now if I photocopy a Harry Potter book and sell copies of it for profit, well, that is just plain theft.  But it gets a little more hazy if I'm inspired by a book and write, say, variations on someone else's theme.  That's done in music all the time - think Variations on a Theme by Haydn.  Is Johannes Brahms a thief, or is he paying homage to a master?  Are these odd Potter variations rip-offs or local works inspired by "a master" of the genre?  Are they attempts to steal Rowling's creation for profit?  Or are they something else?

It seems to me Rowling will probably never get around to writing Slavic or Bengali adventures for Harry Potter, and that raises another issue.  What economic damage has been done here?  These folks are making money doing a riff on Rowling's characters, without her authorization.  But would Rowling tap the same market writing these herself?  No.  Has she had this market taken from her by these upstarts?  Not really.
But it does seem a bit churlish to use her Harry Potter for other purposes.  She might one day license the character for these other uses, but I'm sure she will not, save for licensing the Harry and his friends for action figures and coffee mugs and the like. 
These "secondary" Harry Potter books seem much like the dolls and mugs, an attempt to make money from what she alone thought up.  Buy a Muggles coffee mug and she should get the profit, right?  I should not be allowed to manufacture and sell those unless she is involved.

Still, if someone writes an imaginary piece covering the events of the Harry Potter adventures as they might appear to, say, a Pakistani kid from Brixton, well, if this hypothetical piece were a meditation on race and the British "old boy" mentality, and really about that subject - well, should I be allowed to publish that?  My hypothetical book is not about Harry Potter and magic, but about British thinking.  I just use her work as a stepping-stone.

This was the argument with The Sun Done Gone - that The Sun Done Gone was about something else entirely, and used Gone With the Wind as a departure point.

Well, my two friends argued Randall should have written about the other thing without any reference to Gone With the Wind, and further argued Brahms was no more than a thief, as was Beethoven and Mozart and any others when they wrote variations on a someone else's theme. 
These works should be for forbidden, banned.  Composers should come up with their own themes or get out of the business of composition. 
Authors should create their own stories or characters, or stop writing. 
Don't get them started to Tom Stoppard's Rosencrantz and Guildenstern Are Dead - pure theft!  Of course, since Shakespeare borrowed all his plots but one, the only Shakespeare play that should ever be printed or performed is Love's Labors Lost.  Yeah, right.

Tim Wu in his Slate article reviews copyright law, and you can click here Details to review the Fair Use doctrine of US Copyright Law I use as a guide in Just Above Sunset.  Wu adds these Potter takeoffs are different: "They either borrow characters and put them in a new, foreign context (Potter in Calcutta) or just use the themes and ideas of Potter (as in Tanya Grotter's case) as inspiration for a different kind of story.  They aren't a direct replacement for a Potter book, the way a literal copy is, but rather a supplement or an adaptation."

Supplement?  Adaptation?  Should such things be permitted to exist without the consent, control and supervision of the originator?  And without paying royalties?  My friends say no, never.  I'm not sure.

And of course, there is this issue of parody and satire.  If any of you watch that fellow on PBS who takes American popular songs and adds satiric political lyrics, you see the problem.  Should he pay the estates of Cole Porter and Rodgers and Hart royalties for each tune he plunks out on the piano?  My friends say yes.  The courts say no.  Parody and satire are protected under the "fair use" doctrine of the copyright statutes - and there is a lot of case law on that.

And all of this comes around to Fox News and Rupert Murdoch and Bill O'Reilly.  It does, you say?  Yes, it does. 
On June 19th Fox News Network, LLC issued a "cease and desist" order against Agitproperties LLC, an Austin, Texas outfit selling t-shirts and mugs making fun of Fox News.  They use what looks like the Fox logo, but it reads Faux News, We Decide, You Comply.  And another item shows an Aryan looking young lad in a brown shirt asking the "Bill O'Reilly Hitler Youth" to defend the Homeland.  Seems like parody to me.

But Murdoch has lots of money and Fox will no doubt bury them.

Here's the "cease and desist" order -
Date: Thu, 19 Jun 2003 14:53:04 -0400
To: info@agitproperties.com
June 19, 2003
Agitproperties, LLC
Re: Unauthorized Use of Fox News Network Intellectual Property
Dear Sir or Madam:

Please be advised that Fox News Network, LLC ("Fox") is the exclusive owner of all copyright, trademark and other intellectual property rights associated with the Fox News Channel (the "Fox Copyright and Trademarks").

Accordingly, no entity and/or person whatsoever, other than Fox, is authorized to reproduce, transmit, copy, telecast or otherwise utilize all or any portion of the Fox Copyrights and Trademarks without the express written permission of Fox.
It has recently been brought to our attention that your websitewww.agitproperties.com ("Website") is selling merchandise bearing the Fox Copyrights and Trademarks, without Fox's permission either expressed or implied. Fox has not authorized your use of any Fox Copyrights and Trademarks.

We demand that you immediately cease displaying and selling merchandise on the Website.  Fox is particularly concerned that its intellectual property not be used in a manner that will likely lead to the impairment of the goodwill represented by the name "Fox News Channel," as well as the likelihood of confusion as to an affiliation with and endorsement of the Network.

Your usage of Fox Copyrights and Trademarks may confuse consumers about who is authorizing the Network and/or endorsing the statements made on it. Therefore, you are hereby put on notice that this unauthorized use of Fox's proprietary materials constitutes trademark/copyright infringement and potentially subjects you to both criminal and civil liability.

Your use of the Fox News Copyrights and Trademarks is clearly done in bad faith. The Fox News Channel is in no way affiliated with the Website and, by creating confusion as to the relationship between Fox's programs and the Network, you harm the goodwill represented by Fox's program. Furthermore, the T-shirt "O'Reilly Youth Tee", in addition to the infringements described herein, shows incredibly poor taste on your part, is highly offensive and clearly demonstrates your bad faith use of the Fox Copyrights and Trademarks. It is our belief that the Fox Copyrights and Trademarks were used for no purpose other than the commercial gain of the Agitproperties, LLC and the Website.
While we expect that you will want to accede to our requests, please understand that if you do not cease and desist any further use of the Fox Copyrights and Trademarks on the Website without delay, we will be forced to consider appropriate legal action against you.

Please confirm that you will comply with our requests by contacting the undersigned immediately upon receipt of this letter. This letter is not a complete statement of the rights of Fox in connection with this matter, or of Fox's potential claims against you, and nothing contained herein is intended, nor should be construed as an express or implied waiver of any rights, remedies, or defenses of Fox in connection with this matter, all of which are expressly reserved.
     - Fox News Network, LLC
So, now what?  This is parody, but it will make some money for these folks from Austin.  What a mess!
27 June 2003

Regarding the title of this page, I do not have permission from the estate of Eubie Blake to use the words "I'm Just Wild About Harry" nor have I paid the estate of Eubie Blake royalties for using those words.  But I have retained counsel in this matter.  And I always liked that song.  It was a waltz originally.  Eubie Blake was cool.