Posted 21:46 by Evan

Harry Potter and the Sincere Form of Flattery

Slate is running a terrific article defending unauthorized derivative works, such as a Russian series of J.K. Rowling knockoffs about Tanya Grotter and her magic flying double bass. Go read.

I'm immensely happy to see this issue being discussed. The fact that a copyright holder can prevent others from producing "derivative works" is, I think, the one aspect of copyright law that bothers me more than any other (except for its duration, of course, which by the way I urge you to sign a petition about, but I digress). I don't think any other feature of the law produces quite such bizarre distortions of the whole idea of free expression.

Here's one smallish example: Dungeons and Dragons, as I'm sure most readers are already aware, is a game in which players sit at a table and interactively improvise fantasy stories, imagining themselves to be characters. Now, can it possibly be any more obvious than it already is that these stories aren't intended for commercial use, and are rarely, if ever, published? The only aspects of the game which are published are the books of rules, ideas, and statistics that help smooth out game play, and booklets with detailed descriptions of settings in which stories may be placed.

Now imagine you're an imaginative boy or girl, playing D&D for the first time, and passionately in love with The Hobbit and The Lord of the Rings. You decide you'd like to play the game as a hobbit. Get a copy of the rulebook, and look up character types. You can play a human, an elf, a dwarf, no problem... but seek for a hobbit, and there is none to be found. All you'll find is a halfling. Why? Because the Tolkein estate refused to allow TSR Games to use a six-letter word that Tolkein had coined decades earlier and with which millions of people had become familiar. And the law in its infinite wisdom gave them the power to enforce that absurd decree.

Because if groups of teenagers playing role-playing-games were allowed to use the word hobbit with impunity, why, that might... um... reduce the market for the books? Somehow or other?

Oh, come on. While it's certainly true that Dungeons and Dragons and other fantasy role-playing games owe a considerable portion of their popularity to The Lord of the Rings, it is undeniable that the reverse is also true. And in fact, I can't recall ever even hearing the word halfling at any D&D game I played in my geeky youth; we always called 'em hobbits... So the legal requirement to put a different name in the rule book was not just economically ridiculous, but actually entirely ineffective.

This kind of silliness is the default behavior of copyright law. An author actually has to go out of his or her way to permit people to make derivative uses of his or her work (as I have done with regard to this blog, using a Creative Commons license).

There may be situations in which I'd agree that a tribute, pastiche, parody, or outright knockoff really does harm an author or artist, and that it should be forbidden. I can't think of one at the moment, but I acknowledge the remote possibility. But it sure as heck isn't the usual case.

This wasn't how the law worked a century back, and authors weren't seriously hurt by that; in fact, they were arguably better off. Some literary historians claim, for example, that Alice's Adventures in Wonderland became so popular and successful in part because a number of other writers--early adopters of the "Wonderland" meme, as it were--had been inspired by it to write lighthearted stories (often politically topical, I gather) using the same style, characters and settings, and these had the effect of providing free advertising and expanding the market for the original. If fanfic had been a word in 1865, it wouldn't have been a dirty one.

Our national fergodsake anthem is an unauthorized song parody. No kidding, you can look it up--the original is called "To Anacreon in Heaven" and has a completely different lyric. "The Star-Spangled Banner" was originally published as a broadside--a set of lyrics to a familiar tune. There were thousands of these things; it was a thriving genre. If today's laws had been in place in 1814, we'd be singing something else at baseball games.

Nobody owns ideas. When people read a book or watch a movie, and are so enthralled and inspired by it as to write a fanfic and post it on the web, society benefits. Maybe only in a tiny way, but it adds up. Their knockoffs may be dreadful, but they are creating something, which is better than creating nothing, and they're building their skills, growing their confidence, developing their voices, and some of them will go on to produce better original work later.

And hypothetically, what if they produce knockoffs that aren't dreadful? What if they produce something just as good as the original, or hey, better? Do we want to suppress something that's genuinely good because it might eat into the profit margins of an already-successful author or filmmaker somewhere? Yikes.

J.K. Rowling is not being injured by the publication of Russian stories about magical preppies whose names end in "otter", any more than J.R.R Tolkein's estate would have been by pimply kids looking up the word hobbit in the D&D Player's Handbook. Sure, there's something to be said for making sure creative people get paid, so fine, we can establish a mandatory license: Ms. Rowling can have a nickel on the dollar every time someone sells a book set at Hogwarts. But don't, for heavens sake, give her the power to decide that other people can't whisper aloud the daydreams she inspired until 70 years after she's dead.

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