Harry Potter and the Unauthorized Sequel

Posted on Categories Intellectual Property Law

Cover of Harry Potter and the Philosopher's StoneI don’t mean to clog up our blog with a debate over copyright law, but Gordon’s contribution to the debate Ed and I were having on derivative works is fantastic, and I’d like to do it justice with a long-ish reply. I’m familiar with Looking Backward, having read it in grad school, but I was not familiar with all of the spin-off literature that resulted. Certainly it seems like the debate among rival sequel authors was a good thing that probably decreased Bellamy’s incentives or ability to profit from his work not at all.

But Bellamy’s case is also an atypical case. As I said, I’ve read Looking Backward, and the actual fiction in it seems almost beside the point; even more than most science fiction, it’s really a political tract in novel’s clothing. That makes it more prone to criticism and commentary in the form of follow-on works than most other novels would be. In other words, I think cases like Looking Backward should be handled by an exception to the general rule against unauthorized sequels (fair use), not by abolishing the general rule altogether.

Once you move away from clear cases like Looking Backward, the line between sequels that primarily comment and sequels that primarily exploit becomes really hard to draw. And courts have tried to cram commentary cases into the “parody” category, for reasons that escape me. That means that fair use, which is often not easy to predict, may be particularly unclear for this class of cases. Salinger might be a case that’s close to the line. (It would depend on what’s in both works, neither of which I’ve read.) But I can imagine much easier cases that argue in favor of the general rule.

Suppose there is no copyright protection against anything except verbatim (or near-verbatim) copies. It’s 1995, and J.K. Rowling is shopping around her manuscript for Harry Potter and the Philosopher’s Stone, saying she envisions a series of seven books if the publisher is interested. She sends the manuscript to Bloomsbury Publishing; but they say they are not interested. However, that’s not quite true. They are very interested in publishing the Harry Potter series; they are convinced it will sell well. They just don’t want Rowling to be the author. So they call in one of their favorite children’s authors, hand him the manuscript, and say, “Write seven of these, one for each year of Harry Potter’s experiences at Hogwarts, using the same characters and locations; just don’t use any of the events depicted in the manuscript.” And he does, and it sells like gangbusters, and is made into multimillion-dollar movies. Rowling never gets a penny.

Shouldn’t Rowling have a legal right to stop this? Copyright exists in part so that copyright owners will feel free to distribute their works with a minimum of other, burdensome protections, such as confidentiality agreements or eyes-only review. And even those protections wouldn’t work against a rival, bigger publisher that gets a hold of a work with small distribution and floods the market with sequels. No author or artist would be signed to multi-work deals in such circumstances; and to the extent the author wanted to continue spelling out her vision, her leverage in future negotiations would be vastly decreased.

In addition, if all that matters is literal copying, it’s not clear what becomes of movie rights and other adaptations of works, which are often far from literal depictions. The Harry Potter movies are notoriously close to the text in order to satisfy the rabid fan base of the books, but take other movie adaptations, such as Total Recall, which departs widely from the original short story. (The original short story, if I recall correctly, had whales being essential to the survival of the Earth somehow, à la Star Trek IV; and nothing about Mars.) Should Carolco have had to pay Phillip K. Dick to make Total Recall?

I think so. There’s no perfect place to draw the line. But it seems to me that encouraging artists to continue exploring the universes they created is the right policy.

3 thoughts on “Harry Potter and the Unauthorized Sequel”

  1. The Harry Potter example would not have posed a problem prior to 1977. This is why I (apparently alone among Copyright teachers) think that the Copyright Act of 1976 did more harm than good when it minimized the importance of publication and all but abolished common law copyright.

    Under the old regime, the more generous provisions of common law copyright would have protected Rowling until her work was published. If she wanted to tell her story in seven volumes without other authors using her characters, she could have written all seven novels first and then published them. Even if she published them serially, only she could claim to produce Harry Potter books by J. K. Rowling.

    If others wanted to produce competing Harry Potter novels, what would be the problem? I don’t believe that the proliferation of Looking Backward sequels made anyone less interested in Bellamy’s own sequel. His sequel, Equality, failed because it was “too preachy” and too lacking in dramatic elements.

    To answer your question about Total Recall, I for one don’t see any reason that Carolco should have had to pay Philip K. Dick anything, given how much he changed the story. An even better example is Ridley Scott’s Blade Runner. I don’t think any one would even have recognized the connection between Scott’s movie and Dick’s 1968 novel, Do Androids Dream of Electric Sheep?, had Scott not publicized the linkage. In the movie the protagonist is a bounty hunter whose prey are rouge robots; in the novel, he is a repairman for mechanical pets. Scott has also admitted that he never actually read the entire novel on which his movie was supposedly based. (I suspect that the cost of the license to film one of Dick’s books in the early 1980’s was pretty low–he was still alive but suffering from the effects of excessive drug usage and schizophrenia–and he did at least have a cult following that oould be counted on to see the film if it were linked, fairly or not, to his writing.)

  2. Gordon Hylton’s fine discussion of Edward Bellamy’s “Looking Backward” nicely illustrates the way a novel grows out of and thrives in the context of a culture rather than being spawned simply by an individual writer.

    When he wrote his original work, Bellamy drew heavily on the world around him. His political theories were a blend of the populist, socialist, and (in Bellamy’s terms) “nationalist” currents of his time. His era also saw an extraordinary number of utopian and dsytopian works, and Bellamy joined the crowd. And even Bellamy’s choice of names for his major characters – “West” and Leete,” for expample – depended on the names’ culturally created connotations.

    After “Looking Backward” was published, the popularity and controversy related to the book derived from the concerns and controversies of the era. In essence, the society was attempting to sort out the issues of high modernization – surging urbanization, exploitive industrialization, domestic and foreign immigration, and the reliability of science. The many sequels were vehicles for pursuing the debate about how to structure a fair and just society.

    The importance of culture in Bellamy’s novel and all the sequels cuts against any kind of copyright protection involving the sequels. Only our dominant ideology of individualism, it seems to me, could prompt the suggestion that Bellamy worked and created alone and that he should as a result have monopolistic control of “his” characters and story lines.

  3. This is a great debate. With respect to derivative works, the question, it seems to me, is who profits. Or, more precisely, who do we want to profit? (If we’re talking about noncommercial derivative works, I think that’s a different issue. But the examples we’ve been discussing have all been about commercial exploitation.)

    Imagine two authors, A and B. A writes a novel that sells well, but does not create any demand for any more exploration of the same milieu. If A were to write a sequel, it would flop. B writes a novel too, which sells just as many copies as A’s first book. But unlike A, B’s novel has tapped into a hunger for more exploration of the same characters, events, and settings. Shouldn’t B get a bigger reward? B has created, not just a single work, but an entire universe. I think we want to reward creators more who, in essence, produce a greater amount of enjoyment in their work. The more you make people happy, the more you get paid. In addition, I think we want to encourage the original creators to keep producing works in the same vein, as opposed to competitors attempting to capitalize on someone else’s success, not just on fairness grounds, but also because the original creators have a better chance of tapping into whatever it was they hit upon the first time.

    Stripping copyright owners of the derivative works right would, in most circumstances, eliminate at least that portion of their incentive. I think it’s easy to imagine situations spinning off of our current circumstances where creators simply by dint of publishing something become the recognized sources of that material. I.e., what that creator or author does next is “canonical;” what someone else does next is not. Holding that fact constant, it might seem like eliminating the derivative works right wouldn’t do significant harm to successful creators. But I don’t think that fact would remain constant. Rival distributors would pounce on any work that seemed to turn a sizable profit. They already do this now, albeit at a higher level of generality. A Room With a View begat dozens of other such movies, including the whole Jane Austen revival; The Alienist seems to have sparked a trend in historical mystery novels. Without a derivative works right, we can expect exactly the same behavior for any major or even modest hit, but much closer to the original work, using the same characters, events, and settings. Instead of one string of sequels, there would be several. The effect would be to make canonicity murky for many works. In addition, larger distributors would have an incentive *not* to sign unproven creators, wait for smaller distributors to take the risk, *then* come out with their adaptations or sequels, and hopefully (in their view) deprive the original of any market share. The additional reward to a “universe” creator would be zero; indeed, it seems likely that the reward for the original work would be diminished as well.

    David’s argument that copyright depends excessively on a notion of authors as solipsistic, context-less creators of their works is accepted by many, perhaps most, copyright scholars. But I disagree. Courts have long accepted that authors use the cultural materials they have around them in creating new works, many of which are other works under copyright. And the doctrine reflects this, with distinctions that allow room for inspiration by ideas, stock scenes, or copying that is unavoidable to express a certain idea. What copyright protects is the author’s original contribution. (I suppose one could argue that artists make no original contributions of any kind, but I don’t understand that to be the argument.) Obviously copyright law can be criticized for how it polices that boundary — there’s aspects I disagree with myself. But I don’t think copyright entails any sort of commitment to a notion of authors as apart from their culture.

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