Harry Potter, College Student

Patrick Lee, a freshman at Yale, writes for CNNU about Potter-themed courses at universities and colleges around the United States here.

More On Fan Fiction

Jacqueline Lai Chung, William and Mary School of Law, has published "Drawing Idea From Expression: Creating a Legal Space For Culturally Appropriated Literary Characters," in volume 49 of the William and Mary Law Review. Here is the abstract.

This paper examines the influx of secondary creativity involving culturally iconic literary characters (i.e. Harry Potter fan-fiction) and considers whether, and how, copyright law should account for the unauthorized appropriation of these protected literary characters. Traditionally, the courts have held that characters are independently copyrightable if they meet one of two tests: the distinct delineation test espoused by Learned Hand in the Seventh Circuit opinion, Nichols v. Universal Pictures Corporation (1930), or the story being told test put forward by the Ninth Circuit in Warner Brothers Pictures v. Columbia Broadcasting System (1954). These existing standards for character protection focus on the rights and the entitlements of the original author. This paper argues that copyright law should do more to focus on the creative rights of readers, who often seek to employ iconic characters as tools for cultural dialogue and artistic expression. This shift towards readers' rights may require more than just the expansion of fair use principles over a greater number of secondary uses. What is required, more fundamentally, is a re-conceptualizing of the idea of protectibility in the first place. Certain iconic characters, because they are imbued with so much cultural meaning, are no longer singularly-owned forms of authorial expression; they have become, instead, collectively-owned concepts - tools for expression - in a society constantly engaged in creative dialogue. Hence, on the idea/expression continuum that allows copyright protection for expressions but not ideas, culturally-appropriated characters should fall more appropriately into the realm of the unprotected idea, and in this way, allow greater freedom for secondary uses.

Download the paper from SSRN here.

Meanwhile, J. K. Rowling and Warner Brothers are suing Steven Van Ark and his publisher over the Harry Potter Lexicon, a book based on Mr. Van Ark's website, claiming copyright infringement. Ms. Rowling plans to release her own Potterpedia in future. Mr. Van Ark's position is that Ms. Rowling cannot claim to own all works that mention her characters or works. That would bring literary criticism or commentary to a halt. Read more here.

Droit Moral, IP, and the World of Harry Potter

Gary Pulsinelli, University of Tennessee College of Law, has published "Harry Potter and the (Re)Order of the Artists: Are We Muggles Or Goblins?"
Here is the abstract.

In Harry Potter and the Deathly Hallows, author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the “muggle” world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property and moral rights. Because of the way these parallels have been developing and growing, we seem to be becoming more goblinish in our willingness to recognize ongoing rights in artistic objects, including allowing the artist to collect a commission on subsequent resale of the work. Practical and social considerations suggest that we are unlikely to go as far as recognizing a permanent personal right in the creator that lets him or her reclaim such an object after a sale or other transfer is made. However, we are moving closer to recognizing some forms of the collective right that the goblins actually seem to demand, a cultural moral right in important cultural objects that enables the descendants of that culture as a group to demand the return of the object. Thus, we muggles may not be as far from the goblins as we may have at first believed.

Download the entire paper from SSRN here.

A Blog Devoted to Harry Potter

HogswartsProfessor.com is a blog devoted to Harry Potter. Check it out here.

Even More Harry Potter

Ruth Anne Robbins, Rutgers University School of Law, Camden, has published "Harry Potter, Ruby Slippers, and Merlin: Telling the Client's Story Using the Characters and Paradigm of the Archetypal Hero's Journey," in volume 29 of Seattle University Law Review (2006). Here is the abstract.

This article focuses on the relationship of mythology and folklore heroes to everyday lawyering decisions regarding case theory when the audience is a judge or panel of judges rather than a jury. It proposes the thesis that because people respond - instinctively and intuitively - to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients' goals by subtly portraying their individual clients as heroes on a particular life path. This strategy is not merely a device to make the story more interesting but provides a scaffold to influence the judge at the unconscious level by providing a metaphor for universal themes of struggle and growth.

Download the entire paper here.

Crossposted to The Seamless Web.

More Harry Potter and Law

Benjamin Barton, University of Tennessee College of Law, has published "Harry Potter and the Half-Crazed Bureaucracy" in volume 104 of the Michigan Law Review. It is also available as a download from the SSRN. Here is the abstract.

This Essay examines what the Harry Potter series (and particularly the most recent book, The Half-Blood Prince) tells us about government and bureaucracy. There are two short answers. The first is that Rowling presents a government (The Ministry of Magic) that is 100% bureaucracy. There is no discernable executive or legislative branch, and no elections. There is a modified judicial function, but it appears to be completely dominated by the bureaucracy, and certainly does not serve as an independent check on governmental excess. Second, government is controlled by and for the benefit of the self-interested bureaucrat. The most cold-blooded public choice theorist could not present a bleaker portrait of a government captured by special interests and motivated solely by a desire to increase bureaucratic power and influence. Consider this partial list of government activities: a) torturing children for lying; b) utilizing a prison designed and staffed specifically to suck all life and hope out of the inmates; c) placing citizens in that prison without a hearing; d) allows the death penalty without a trial; e) allowing the powerful, rich or famous to control policy and practice; f) selective prosecution (the powerful go unpunished and the unpopular face trumped-up charges); g) conducting criminal trials without independent defense counsel; h) using truth serum to force confessions; i) maintaining constant surveillance over all citizens; j) allowing no elections whatsoever and no democratic lawmaking process; k) controlling the press. This partial list of activities brings home just how bleak Rowling's portrait of government is.The critique is even more devastating because the governmental actors and actions in the book look and feel so authentic and familiar. Cornelius Fudge, the original Minister of Magic, perfectly fits our notion of a bumbling politician just trying to hang onto his job. Delores Umbridge is the classic small-minded bureaucrat who only cares about rules, discipline, and her own power. Rufus Scrimgeour is a George Bush-like war leader, inspiring confidence through his steely resolve. The Ministry itself is made up of various sub-ministries with goofy names (e.g., The Goblin Liaison Office or the Ludicrous Patents Office) enforcing silly sounding regulations (e.g., The Decree for the Treatment of Non-Wizard Part-Humans or The Decree for the Reasonable Restriction of Underage Sorcery). These descriptions of government jibe with our own sarcastic views of bureaucracy and bureaucrats: bureaucrats tend to be amusing characters that propagate and enforce laws of limited utility with unwieldy names. When you combine the light-hearted satire with the above list of government activities, however, Rowling's critique of government becomes substantially darker and more powerful.

Furthermore, Rowling eliminates many of the progressive defenses of bureaucracy. The most obvious omission is the elimination of the democratic defense. The first line of attack against public choice theory is always that bureaucrats must answer to elected officials, who must in turn answer to the voters. Rowling eliminates this defense by presenting a wholly unelected government.

A second line of defense is the public-minded bureaucrat. Some theorists argue that the public choice critique ignores what government officials are really like. They are not greedy, self-interested budget-maximizers. Instead, they are decent and publicly oriented. Rowling parries this defense by her presentation of successful bureaucrats (who clearly fit the public choice model) and unsuccessful bureaucrats. Harry's best friend's Dad, Arthur Weasley is a well-meaning government employee. He is described as stuck in a dead end job, in the least respected part of the government, in the worst office in the building. In Rowling's world governmental virtue is disrespected and punished.

Lastly, Rowling even eliminates the free press as a check on government power. The wizarding newspaper, The Daily Prophet, is depicted as a puppet to the whims of Ministry of Magic. I end the piece with some speculation about how Rowling came to her bleak vision of government, and the greater societal effects it might have. Speculating about the effects of Rowling's portrait of government is obviously dangerous, but it seems likely that we will see a continuing uptick in distrust of government and libertarianism as the Harry Potter generation reaches adulthood.

Barton's is the latest in a series of pieces exploring law in in Rowling's novels. Other entries using Harry as inspiration include Julie D. Cromer's "Harry Potter and the Three Second Crime: Are We Vanishing the De Minimus Doctrine From Copyright Law?" in the New Mexico Law Review and Aaron Schwabach's "Harry Potter and the Unforgiveable Curses: Norm Formation, Inconsistency, and the Rule of Law in the Wizarding World" in the Roger Williams Law Review. There are also Susan Hall, Harry Potter and the Rule of Law: The Central Weakness of Legal Concepts in the Wizard World, in Reading Harry Potter: Critical Essays, edited by Giselle Liza Anatol, and published by Praeger (Westport CT, 2003) at pp. 147-162, and William P. MacNeil, `Kidlit’ as `Lawandlit’: Harry Potter and the Scales of Justice, 14(3) Law and Literature 545-564 (2002).

[Cross-posted with variations at The Seamless Web].

Harry Potter Goes to Law School

Harry Potter has inspired articles by two Thomas Jefferson School of Law professors. Julie D. Cromer's "Harry Potter and the Three-Second Crime: Are we Vanishing the De Minimis Doctrine from Copyright Law?" is forthcoming in the New Mexico Law Review and is also available in the TJSL Legal Studies Research Paper series as 05-11. It's also downloadable from the SSRN. Here is the abstract:

This paper examines the importance of the de minimis doctrine in copyright law and these potential conclusions. It evaluates the history of application of the de minimis doctrine in copyright law, establishing that courts have long turned to the doctrine for guidance in copyright decisions. Further, it reviews legislative history to determine whether the application of the de minimis doctrine is indeed contrary to Congressional purposes, as recent decisions suggest, and if there may be sufficient justification for its abolition in connection with sound recordings only. It studies the effects of the doctrine's elimination, evaluating whether copyright law written without the understood de minimis doctrine would be a workable regime. Finally, the paper questions whether revocation of the de minimis doctrine helps or hinders the "Progress of Science and the useful Arts", asking whether policy dictates that the technological ease of copying should in fact lead to the less stringent application of copyright law to future works.

Aaron Schwabach has published "Harry Potter and the Unforgivable Curses: Norm-Formation, Inconsistancy, and the Rule of Law in the Wizarding World," again in the TJSL Legal Studies Research Paper series 05-13, and in volume 2005 of the Roger Williams Law Review. It is also downloadable from SSRN. Here is the abstract:

The astounding success of the Harry Potter series of children's fantasy novels is an unexpected cultural phenomenon, but a welcome one for lawyers and legal academics: Harry's story is a story about law, and about a society trying to establish a rule of law. There is law in every chapter, and on almost every page, of all six books. Sometimes the legal questions hang in the background, while at other times they are the focus of the story: We see numerous trials, and the author gives us statutes, regulations, school rules, and even international agreements to consider. Harry's world is administered, ineptly, by the Ministry of Magic. The Ministry of Magic's muddling misrule is not quite dictatorship, but it is not fair and just, either. Under the stress of the first war against Voldemort's Death Eaters the Ministry regime, like some Muggle governments in similar circumstances, adopted an ad hoc and inconsistent approach to justice. It imprisons people, and sometimes executes them, without a trial. It keeps careful tabs on law-abiding citizens, but is unable to track down terrorists. It reaches inaccurate results in about half of its criminal trials, in large part because defendants are not represented by counsel. This article attempts to examine the problems with the wizarding word's legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death. There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry's world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry's regime as well as under relevant British (Muggle) and international law.