Harry Potter and the Unauthorized Sequel

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.

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The Windmill’s Reply

Abandoned Mill of SaintesEd Fallone’s fascinating post below on the Catcher in the Rye suit, now being briefed in the Second Circuit, is worth reading. I was particularly interested in Ed’s discussion of Cervantes’s criticism of an unauthorized sequel to Don Quixote. Copyright scholarship occasionally mentions that Cervantes rushed Part II of Don Quixote into print because of pressure from a competitor, but I hadn’t heard the details before. Cervantes’s reaction to the implicitly critical sequel does seem like an important moment in the development of the idea of the fictional author as master of his or her creation.

However, I also want to offer a contrary view on a couple of points that Ed raises. First, Ed concludes that copyright’s commercialization of creative works is a problem. One solution, Ed proposes, is to eliminate copyright protection for literary characters. I disagree with both sides of this equation. There’s an emerging problem with copyright law, but it’s not commercialization of creativity. Commercialization of creativity is the entire reason copyright law exists. And eliminating copyright protection for sequels across the board would create far more problems than it would solve.

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The Housing Crisis From the Air

New Homes ConstructionLast week, I flew down to West Palm Beach, Florida for the Southeastern Association of Law Schools’ (SEALS) annual conference, which was a lot of fun. (Marquette just joined SEALS as an affiliate member.) On the way down, I flew out of Atlanta’s Hartsfield International Airport in mid-morning, over Atlanta’s outer suburbs.

I was amazed as we flew over miles and miles of half-finished subdivisions, carved haphazardly out of the wooded hills. Some were little more than cleared lots; others had houses in various states of completion, forming tenuous neighborhoods. The geographic impact of the housing bubble will be with us for quite some time.

As we continued to pass over these monuments to irrational exuberance, I was reminded of the closing lines of one of my favorite poems:

Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.

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