Tanya Grotter and the Magic Double Bass

Slate has a piece about Harry Potter and copyright worldwide that is a disguised call for copyright reform. Well written, well argued, extremely good argument, won't be picked up anywhere else.

really...

[Destree]

Won't be picked up anywhere else? This article has been on the front page of msn.com all day Friday.

U.S. Legal Guidelines for Derivative Works

[Lomak]

Art which uses found objects, cultural references, preexisting stories may be protected under the fair use doctrine.

To decide whether a use is "fair use" or not, courts consider:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and,

4. the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. 107(1-4)

more here [chillingeffects.org]

--Stephen

Re:Sad

[eggstasy]

Sellout, and plagiarist, since in 1984 Nancy Stouffer had already written a book by the name of "The Legend of Rah and the Muggles", starring Larry Potter. [realmuggles.com]

Re:Sad

[Teddeh]

She may have sold the rights, but she hasn't sold artistic control. JK has a lot of control over how the films are handled. She also has a hell of a lot of control over the merchandising. In a recent interview, she said she was horrified at some of the merchandising ideas presented to her and she vetoed them. I do agree about Time-Warner's legal dept tho. Cease and desists to some 11yr old's fan site are not a good PR move.

Overreacting

[Llywelyn]

"It's pretty sad. Rowling always said she would NEVER sell the rights to Harry Potter. Now if you look at he books, there's a small message on the copyright page saying that Time Warner own the rights to all the character names and likenesses."

She didn't sell the rights to the books (IIRC), only to the "names and likenesses," which was probably a mandatory step moving it into the movie industry, having action figures, &c. She probably didn't want to deal with all of the paperwork of subcontracting each individual entity for these things (a company to make toys, &c) and it may have been a mandatory, and not terribly offensive part of the deal for her.

Looking at my copy of Book 4 (I don't have book 5 on hand) it says, in the jacket:
"Text copyright © 2000 by J.K. Rowling"

Thus, I would say calling her an "unmitigated sellout" is probably a bit harsh.

There are deriviative works...

[Master Of Ninja]

... and then there are re-labeled rip-offs. Yes, Rowling's work may be deriviative and all fiction works on inspiration from what has gone before it, but names like "Tanya Grotter" (and even naming a book "Harry Potter" when it has no connection to the author) is just trading off the name of her work.

This has nothing to do with copyright reform - the authors of these new books are trading off Harry Potter by slightly changing the name and keeping all the magic and other elements of the book in it. It's not like they're even trying to be different. If they wrote a book about a magician but was different in other ways you could say that 'magic' was in vogue, and it is OK. But is seems like these people are just ripping off quite a lot and writing some stories for the cash.

I don't even like the argument about local market conditions. Harry Potter books are popular everywhere. People love 'Harry Potter'. So people churn out these knock-off books. If the authors wanted to write for the local market I'm sure they could easily make up their own stories but again the just rip-off works just to get the cash.

(As you can tell by now) I don't agree with the author of the article at all. He just wants a cheap argument to allow author's who have no creative insight in the least to get rich off the hard work of others. If the authors stuck to fan-fiction they would probably get my sympathy. But whoring cash for when they have no talent - I hope they burn (metaphorically of course!).

let a hundred Harrys bloom

[Syre]

For those not initiated into the wonders of Chairman Mao's Little Red Book, the original quote is:

"Let A Hundred Flowers Bloom and A Hundred Schools of Thoughts Contend"

More information can be found here [chinaembassy.org.il] in section 2.

(note: the author of this post is not and never has been a Maoist)

Re:Sad

[Anonymous Coward]

It sounds more suspicious than it really is. With an original print run of about 100, it's very unlikely the book made its way from Texas to Scotland...

I haven't read the book, I seem to recall "Muggles" were the happy little trolls Larry hanged out with and had whimsical adventures with. It was a children's picture book, aimed at 3-5 year olds.

"Muggles" were also a 60's drug reference.

With a relatively generic book such as Harry Potter (I still like it, just many of the situations are standard children's fantasy), some other book somewhere will bear superficial similarities.

Re:U.S. Legal Guidelines for Derivative Works

[Babbster]

The reason National Lampoon (Mad, Crazy, etc.) can get away with what they do is because their work is parody which is a special exception included in copyright law and doesn't have to be considered under the original poster's court guidelines...in other words, any attempt to sue National Lampoon for one of their comedy bits on the basis of copyright infringement would be thrown out of court before any judging has to be done.

Re:Sad

[sebi]

MANY fansites are being shut down.

On the other hand J.K.R. doesn't seem to have any problems with fan fiction. There [gryffindortower.net] are [sugarquill.net] quite [fictionalley.org] a few web-sites out there who specialised in publishing Harry Potter fan fiction. I think J.K.R. doesn't want others to profit from her creation and AOL-TW might not like the use of copyrighted material on fan-sites, but they both let people take the characters and settings and try something new with them.

a more pertinent argument

[drfireman]

Lawrence Lessig's comments on lawyers and comics seem relevant here. Or rather here [redherring.com].

In short, Lessig argues that the harm done by fan fiction is at least in some cases a fiction created by lawyers who don't necessarily have their clients' interests in mind.

Re:Nothing new under the sun...

[Anonymous Coward]

which also implies that all Muslims are devil worshippers, oh dear

Maybe thats what happened in the Russian knockoff you read, but in version I read, the arab boy did get to go to heaven and saw the lion as his own God, because he believed and loved God. That book taught me great tolerance for people with beliefs other than my own.

Comment removed

[account_deleted]

Comment removed based on user account deletion

This happened to me...

[JRHelgeson]

I was writing a murder mystery. I was stopped at the printer when Agatha Christie's [agathachristie.com] publisher filed an injunction stating that they held the copyright on writing murder mysteries.

In all seriousness, when someone comes upon a good concept, its inevitable that others are going to follow suit. It would be one thing if they were reprinting unauthorized copies of her book...

Sounds to me like they're creating similar books, with similar storylines that are geared more towards their culture.

I say that it's horseshit, horseshit, horseshit! And for those of you who don't know what horseshit is, thats the shit that comes from a horse.

Re:aren't these just parodies

[neema]

Whether or not Tanya Grotter existed before, in her current state, it is a derivative of Harry Potter. Even the author admits to it.

In an interview with journalist Steve Gutterman, author Dmitry Yemets called her "a sort of Russian answer to Harry Potter," and described his books as "cultural competition" for the original.

That's taken from the article. At no point does Yemets claim that her Tanya Grotter was an original, or independent from Harry Potter, but rather an answer (which, if I'm not mistaken, coems second to the original) and competition.

Re:aren't these just parodies

[Lodragandraoidh]

The issue is, ancient folklore is in the public domain, but the Harry Potter and Tolkien series are not in the public domain. Considering the ongoing extensions to copyright laws that have been going on over the past century, and more notably with the 'Sonny Bono' law in recent years, these works may never become public domain anyway.

Copyright is a legal monopoly, plain and simple (as are patents, as well). Copyright law [copyright.gov] as set down by the U.S. Government states, among other things:

102 states:
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

So, you can't copyright an idea (that is what patents are for) - just a 'work' which may contain many ideas, procedures, processes etc... A foot in the door for the the flying double bass.

103. Subject matter of copyright: Compilations and derivative works, states:
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

This is a slippery one to understand. Basically, I think this means a derivative work can fall under copyright...(maybe a lawyer could comment on this one?)

106A. Rights of certain authors to attribution and integrity, states:
(a) Rights of Attribution and Integrity. - Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art -

(3) subject to the limitations set forth in section 113(d), shall have the right -

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

(Section 113(d) deals with destruction of works of art on buildings - responsibilities for builders, and limitations on what an artist can demand)

So, I would imagine JK Rowling and/or her publisher are going after these derivative works under 106A subsection (A).

Re:She's destroying something alright...

[Nick Gisburne]

American monoculture? J K Rowling is 100% British. I agree with some of what you say, but isn't it better to entice children to read about their own culture by creating new characters based on that culture, rather than taking someone else's ideas, cashing in on their success, and fiddling at the edges to make 'new' works. If I had taken the time to invent a fully-formed framework for my fiction, I wouldn't want someone else basing their works on my 'world' - let them invent their own.

Corrective to Mass Pooling of Ignorance

[skywire]

Practically all the comments here (except "The article is lousy" (#6318621)) are based on a fundamental misunderstanding about the nature of copyright: the notion that copyright protects the ideas (themes, style, atmosphere, characterization, etc.) embodied in a literary work. It does not. It protects only the particular embodiment of those ideas, in other words, the particular phrases and sentences that make up a work. If those are not copied (or translated*), then there is no copyright violation. The Slate article author touches on this a little, but not strongly enough.

All the long threads about derivative works, the thin line between parody and knockoff, and fair use are simply beside the point. If Tanya Grotter does not contain any of the English text of Harry Potter, or Russian translation of that text, then no copying has occurred, and thus no violation of copyright.

Derivative works include some portion or portions of the original work. In other words, they are partially copies of the original, plus some original matter. Without a license, they are generally illegal. Derivative works that parody the original have a special exemption (but it is certainly also possible to parody a work without deriving from it at all). Fair use also is a special limited license to copy. But if no copying is being done, then fair use need not be invoked.

* This actually opens up some very interesting philosophical questions related to the logical coherence of copyright laws, since given the right translation rule, any string can be translated into any other.

One word: Rincewind

[Stephen Samuel]

If the case of Rowland's authors attempting to ban Tanya Grotter from being imported into Holland ever makes it in front of a judge, I sincerely hope that it gets thrown out.

Rowland can copyright Harry Potter and his friends, but she cannot and should not be allowed to copyright the idea of a child wizard That concept is, itself, much borrowed from other sources. Even the story of a child wizard in a wonky wizards school [geocities.com] has its precedents.

What comes to mind first for me is the Rincewindd character of Robert Asprin's Diskworld series.Born the 8th son of an 8th son of an 8th son, he was destined to be a great sourceror.. Unfortunately, he doesn't believe that -- and neither do most of the people who encounter him. Nontheless, he still manages to both enable and prevent vast magical goings on in his world (depending on whether they are good or bad).

The basic concept of a Harry Potter character is not original and nobody -- even (or especially) someone who has gotten fantastically rich with it should be allowed to control expressions of that basic concept.

suffice to say everything is derivative...

[mabu]

There's a difference between parody and superficial exploitation. When someone mirrors the characters' personalities, plots, history and style, even down to phoenetic rip-offs of the characters' names, that's not art or creativity, it's blatant exploitation and dilution of carefully developed intellectual property.

It is precisely due to ripoffs like "Tanya Grotter" that copyright protections exist. Rowling worked very hard to develop her characters and her universe, and as politically-incorrect as it might seem in this forum to defend the right of anyone to claim some semblances of intellectual property control, I think it's warranted here.

What if I created a web site called, "Slashdash.org" and copied exactly the structure, look and feel and the content of site? You don't think the owners of Slashdot would be upset? Absolutely and rightly so because such an effort would be an attempt to unfairly exploit the momentum that Slashdot has gained through a lot of time and hard work.

Let's give credit where credit is due to those who either through luck, resources or hard work manage to create an institution, and don't want some noob showing up and sampling the fruits of their labor for a quick, undeserved buck.