On the case of the missing detail and the twisted truth about hard work

Abstract

This text, its politics, and erotics originate in ‘the case of the missing detail’: the alliance between Warner Brothers Entertainment Inc. and the author J.K. Rowling during a trial over copyright infringement and fair use concerning a lexicon, which, I argue, puts at stake, as an opportunity, ownership in the properties of the story and world of Harry Potter. During the trial, the author alone takes center stage. In investigating the alliance and making a case for its shared interests, this text brings together work and consumption. I look at the role work and specifically ‘hard work’ by the author plays in criminalizing and containing consumption that is disorderly, disrespectful, and excessive: consumption by fans. Fans who write fan fiction are not content to merely read and consume; they disrespect the symbolic authority of the author to write their own and different stories and create symbolic value in excess of and for the original story. However, in the end, and in this case, at stake in criminalizing and containing consumption by fans are interests that have nothing to do with hard work, but with collecting rent instead, on the license to use the Harry Potter trademark for branding. Consumption that is disorderly, disrespectful, and excessive undermines the symbolic value of the brand, embodied in a distinctive identity, and hence its attractiveness to be licensed, by diluting it. The law functions to regulate consumption as proper to secure brand value, which legally renders the story of Harry Potter undead to the imagination.

Introduction

Bridging work and consumption

A bridge brings together what it holds apart. This article brings together work and consumption.

However, what sets work and consumption apart in the first place? And, how straightforward is it, building bridges? Work and consumption are set apart, and at odds with each other insofar as consumption as enjoyment, as well as excessive, and wasteful is an affront to work, specifically disciplined, hard work, a Puritan work ethic. Mike Featherstone (1991) identifies disciplined, hard work as ‘the “inner worldly ascetic conduct” celebrated in nineteenth-century “self-help” individualism and later twentieth century Thatcherism’ (p. 21). Consumption as an ‘auxiliary’ to such conduct is supposed to be ‘orderly, respectable and conserving’ (Featherstone, 1991: 21). Consumption in association with a Puritan work ethic ought to be orderly, which also keeps the order, socially speaking too, and not upset it. To create disorder is to take the risk of upsetting the social order, in favor of change. Specifically, what is being safeguarded by order, social reproduction, and continuity as David Chaney (1994) points out is ‘the recreation of … those aspects of collective experience which can be seen to act as stabilizing and confirming structural relationships of power, property and privilege’ (p. 58). Consumers in being disorderly unsettle and question such relationships, as in the case of fans who write fan fiction, the consumers involved in this article.

This article involves consumption that is not orderly, or respectable, or conserving, consumption that is a challenge to manage, unmanageable (Gabriel and Lang, 1995), and that is under constant threat of criminalization. This article involves consumers, fans, and Harry Potter fans in particular who are disorderly, not merely content to consume, and who write, and publish their own fiction instead, based on their favorite story. This article involves fans who are disrespectful, of the symbolic authority of the author, the authority to say what the story is about. This article involves fans who write in excess, not merely more of the same, but by coming up with stories that the original author would or could not have imagined, different stories that use some of her words, names of characters included—fans whose stories as fan fiction are archived online in large numbers, which contains and limits their circulation. In limiting circulation, archives contain and accumulate surplus symbolic value, which is going to waste, for now, due to lack of legal recognition, and while commercial interest in fan fiction, among fans too, is growing, beyond current commercial interests such as those that are being exploited in the Harry Potter brand.

This article looks at the role work and specifically hard work plays in criminalizing and containing disorder, disrespect, and excess. In bringing together consumption and work, I demonstrate that propriety and property go hand in hand. Consume, and enjoy, but properly, from a distance, with respect for property. Do not get involved and consumed by what you consume, do not get fanatic about it, act properly. Do not waste the words of the original author on your imagination, to imagine otherwise, by changing the properties of the original story, and proliferate meaning. Use your imagination by working hard, productively, and properly, on the soil of language, as opposed to poaching on the stories, imagination, and language that belong to others. However, the question is why? Why should Harry Potter’s story not be changed, re-imagined, and told differently? Why should the story, its properties, and what it is about remain a private garden, as opposed to become public property, a flowering park? ¹ Why should the story be made undead to the imagination, frozen, reified, stuck on the same story, and the characters stay in character? The answer to these questions lies in a copyright dispute, including over fair use, and key to the dispute is the emphasis on hard work, to secure ownership, exclusivity, over the properties of the story, in the end, however, to secure interests that have nothing to do with work, hard, or otherwise.

I look closely at the argument in favor of hard work in the context of a legal dispute over copyright, fair use, and ownership in language, which is a dispute over the publication of the then so-called Harry Potter Lexicon by RDR Books, put together by a fan. The Lexicon organizes the vocabulary of the world of Harry Potter in alphabetical order. Specifically, the Lexicon informs us about and identifies in the entries what the words that constitute the world of Harry Potter refer to and thus defines the meaning of the world of Harry Potter, of everyone and everything in it, into existence. In the references, ‘who is who’, ‘who does what’, and ‘what is what’ are captured in the words, sentences, or language the author uses to make up and tell the story, which is cut, pasted, and copied into it. Both Warner Brothers Entertainment Inc., a global media and entertainment business conglomerate, and the author J.K. Rowling sue RDR Books against the publication of the Lexicon, as copyright infringement, because it copies too much of what the ruling or ‘opinion & order’ identifies as ‘the distinctive original language’ (US District Court, Southern District of New York, 2010: 49) of the author. Legal representation for RDR Books, however, defends the Lexicon as fair use.

That the author and a conglomerate in this particular legal case ² sue RDR Books is a detail that is unaccounted for among fans, during the reporting on the dispute in the media and during the trial—a detail that goes missing. A detail that goes missing and that is puzzling, because given yet unaccounted for in (terms of its significance for) the case against the publication of the Lexicon and also given that technically copyright concerns the publisher of the story first and foremost. According to the UK Intellectual Property Office in Copyright: Essential Reading, the author, or ‘first owner’, sells or leases the right to copy to the publisher, to get marketed and published (Intellectual Property Office, 2009). Furthermore, as the World Intellectual Property Organization ( WIPO ) explains and emphasizes in Understanding Copyright and Related Rights, copyright would not be of much ‘economic value’ if in addition to making copies it would not also involve the right to distribute copies, another copyright, which the author also places in the hands of a publisher.

Nevertheless, and despite the argument against copying, rather than the publisher the conglomerate and the author sue instead, together, without the publisher: which interests do they share, as an alliance, in favor of which they mobilize copyright law and seize the opportunity to sue RDR Books? Which commercial and shared interest is the argument in favor of hard work supposed to secure, against disorder, disrespect, and excess? Which commercial and shared interest does the argument in favor of hard work secure given what the argument in favor of hard work secures, as property and exclusive? For hard work is not just ‘the moral of the story’, an argument against lazy copying, which the author of the Lexicon is being accused of, but also embedded in C.B. Macpherson’s (1962) political theory and critique of possessive individualism, which is informed by John Locke’s theory of ownership, of the right to property and of individualism. According to Locke, work, or labor, gives someone the right to appropriate from that which is originally held in common, the earth, provided that ‘Man’ has a property in his own person.

Similarly, like the earth, language is held in common, and the author, together with Warner Brothers Entertainment Inc., seeks to enclose words from it, which also make up what is referred to as ‘the author’s language’, because she worked hard for them, on the soil of language. Words and their meaning, by virtue of what is considered to be the author’s language, are to be removed from what is held in common. To what end? And does hard work have anything to do with it, in the end?

Before I go into the copyright dispute, and what else and more is at stake, in favor of hard work and against consumption as disorderly, disrespectful, and excessive, I first address my method, or how I know what I know, which revolves around a detail that triggered my interest in the dispute. I took an interest in the dispute because of the alliance between the conglomerate and the author that was overlooked, by fans, the media, the public, and legal experts, as a matter of fact, shading into a ‘matter of concern’ (Latour, 2007), even more so after it went missing.

Case-thinking and method of equality

You try to understand something; therefore you go to materials that may help you understand. Then you try to make sense of them. What kind of method is this? You use your brains. You try to find something and you use your brains to make sense of it. (Jacques Rancière in Jacques Rancière and Sudeep Dasgupta, 2008: 71; author’s emphasis)

[…] the trait often turned against women: they pay too much attention to the odd little detail. However, this kind of attention, befitting the detective as well … reopens the story to questions. (Linda Orr, 1988: 620)

How do I know what I know? The method I rely on in investigating the missing detail is a name for a practice: ‘being on the case’. I am on the case, building a case for the significance of the missing detail, the alliance, to investigate and make sense of why the author and a multi-media conglomerate sue together, in the context of copyright law, which put me on the case of hard work, figuring out the role it plays for the alliance in their case against the publication of the Lexicon, what is at stake for them. Laura Berlant (2007: 671) in Being on the case identifies as the origin of the case the enigmatic, an obstacle to clarity, which at times ‘disturbs’, including the detail, ‘that captures the interpretative eye’. A detail which also at times, for example, in legal cases, suggests ‘interpretative recontextualization’ (Berlant, 2007: 670). To me, and my method, any detail is an obstacle to clarity, puzzling, because it is unaccounted for, even before it goes missing. A detail is there, as a given and visible, but unseen, unless noticed and looked at, observed, by anyone with an eye for detail. A detail is not hidden, waiting to be revealed, but merely never made to count, made sense of or somehow symbolized before. Once observed, and as puzzling, it asks how it fits into a bigger picture, alongside other cases, by going deeper into it. A detail insists on being taken into account, to count and become part of a bigger picture, to go from its singularity to the general. To define the ‘surplus to singularity’ (Berlant, 2007: 664) is to make the case. According to Lucie Campos and Philippe Lacour (2005) in their online review of Jean-Claude Passeron and Jacques Revel’s (2005) Penser par Cas or ‘case-thinking’, the case is ‘a continuous argument that proceeds through the exploration and the deepening of a singularity accessible to observation in order to found a description, an explanation or an evaluation’. A detail, as an obstacle to clarity, as puzzling, and concerning its significance, or ‘meaning, insofar as it is sensually produced’ (Barthes, 1975: 61), invites intellectual curiosity, imagination, and labor. A detail, as an obstacle to clarity, puts you in a state of what Sianne Ngai (2005) refers to as ‘an epistemological sense of uncertainty’ (p. 14), wonder, to be pursued, wandering. Taking a detail into account, resolving epistemological uncertainty, proposes a change to what we are looking at, in this case, what is at stake against the publication of the Lexicon and against unruly consumers, in relation to copyright and fair use, what it is also about, given the alliance between the conglomerate and the author and the role hard work plays.

What if the case against the publication of the Lexicon is not just about copyright and fair use? What if the case I build proposes a different scenario ³ for what is at stake given the fact that the author and the conglomerate sue together? A scenario that is an improvisation of sorts, an adventure too, because the difference a detail makes to what we are looking at cannot be decided on in advance: the detail is not an identity marker like other differences are (gender, race, etc.), that tell us what we are looking for, the difference they make.

Berlant (2007) in Being on the case points out that the case is aesthetically related to the detective story. In the detail, interpretative scholarship and the detective story overlap. Details, clues, animate the detective, me, and solve cases. Except, the case I am making is not solved and closed. As a point of reference and interpretation that makes a difference to what we are looking at, the detail (re-)opens up to, invites other and more interpretations of why and how the alliance matters, which make different cases. Furthermore, on account of other observations in detail, or detailed observations that are unaccounted for, any case can also be opened up, to questions, and other cases can be made on their account, what more and else is at stake. The detail embodies (in-)significance, undoes and suspends it; its logic is suspensive.

Lucie Campos and Philippe Lacour (2005) foreground that cases accumulate knowledge through cross-observation: while a case has to add up and make sense, in its self-enclosed totality, cases taken together do not add up, to a system of knowledge, in this case, about copyright, and the role hard work plays. ⁴ Knowledge is not progressive or cumulative. Cases are not examples, more of the same. Nevertheless, through cross-observation ‘results can accumulate’, and we know more, albeit not because we agree necessarily, after all, the devil, or divisiveness, is in the detail. Furthermore, while a case comes together, because it is not solved and closed, it cannot be mastered, like an object of knowledge. A case that originates in the detail does not have a master or a subject of knowledge. A case belongs to the public, which a case organizes, however fleetingly, as Laura Berlant also points out. The case and its properties are public property, except when you have to speak the right language to speak up and be heard in public, such as be an expert, in this case: speak legalese and be a legal expert.

Being on the case, case-thinking, is indebted to, but unlike the social science case study, although I proceed similarly. As Howard Becker (1992) explains about the social science case study, only ‘working through the relation of ideas to evidence answers the question “what is this a case of?”’ and the case will ‘coalesce gradually, sometimes catalytically’ (p. 205). I try out ideas on evidence or data gathered, except that rather than collecting data or facts I start from a datum, literally ‘something given’, a point of evidence and reference that is also a point of interpretation, to try ideas out on, because it is a puzzling fact, the alliance between the conglomerate and the author against copyright infringement and fair use that caught my interpretative eye. My method is unlike the social science case study because I start from the singular, but like the social science case study it is empirically grounded, in observation, being observant. Starting from the singular, I wonder, not knowing, and wander about, on an intellectual adventure, read widely, not systematically, not methodically, across and suspending discipline(s). Being on the case, I do not think straight, and experience detours and dead-ends, make connections instead, and the constellation of an idea takes shape in a scenario: what if. Being on the case, as a writer, I do not have a proper method, a procedure of steps and techniques that prescribe ‘how to’ practice being on the case, case-thinking, which would guarantee meaning, like an author does. There are no guarantees. Being on the case is taking a chance. I cannot tell you how to be on the case, except to be patient, and take care, of the detail. And, I cannot tell you how to be on, make, and write your case (up), how to think, freely, without discipline(s), for yourself. I cannot make your connections.

Epistemologically speaking, my method offers what Donna Haraway (1988) refers to as ‘situated knowledge’. Situated knowledge steers in-between relativism, ‘being nowhere while claiming to be everywhere equally’, and scientific objectivity, ‘seeing everything from nowhere’. The case, as situated knowledge, sits in-between relativism and scientific objectivity. I am not coming out of nowhere on my adventure. The case I am making originates in a single detailed observation, objectively a given, real as a matter of fact, a point of evidence, reference, and interpretation. I am not coming out of nowhere, and when the adventure draws to an end, the case I built asks for an evaluation: does the case make sense? In asking for an evaluation, cases are not relativistic or subjective: not anything goes. Furthermore, situated knowledge is knowledge from a location, which is about ‘vulnerability’ (Haraway, 1988), and ‘resists the politics of closure’ (p. 590). What is to be avoided is ‘simplification in the last instance’ (p. 590). In building the case I do not master, or simplify what I know, and I am vulnerable, to contestation, about the significance of the detail, how and why the alliance matters, and because of other details, the difference they make (for to ignore the difference they make, and accumulate them as equally significant to this case feels more like working towards building a conspiracy theory, and paranoia instead). ⁵ I do not have the final word on the case, as the authority, also because I would like people from among the public to get involved too.

Finally, my method, as a practice, also practices equality: it is a method of equality and communicates equality. First, I am not a legal expert on copyright law. I am what Edward Said (1994) refers to as ‘amateur and intellectual’ combined: in this case, an amateur legal expert and amateur detective, who takes the liberty to speak on legal and other matters by investigating the case of the missing detail, as a matter of fact, shading into concern, about ‘power, privilege and property’. Said (1994) proposes that the intellectual today ‘ought to be an amateur’, who as ‘a thinking and concerned member of a society’ (p. 61) aims to ‘stir up debate, possible controversy’ (p. 52), at the heart of ‘even the most technical and professionalized activity’ (p. 61). Said (1994) states that ‘there are no rules by which intellectuals can know what to say or do’ (p. xii). For amateurs, lacking in professionalism, specialization, expertise, and authority, there is only the ‘raw effort of constructing knowledge’ (Said, 1994: 57) to rely on in speaking up. Said’s knowledge project, that of the amateur and intellectual, ‘addresses a readership that is not confined to a single discipline or perhaps to any discipline in the academic sense’ (Mitchell, 1995: 541). In addressing such a readership, it takes shape in-between disciplines, suspended. Furthermore, being an amateur and intellectual also involves ‘a sense of the dramatic’ (Said, 1994: xv), of putting on a ‘social performance’ (Said, 1994: 11), in this case on the stage of the detail, a ‘singular theatre’ (Barthes, 1975: 53).

Second, by taking the liberty to speak, I am practicing and performing what Jacques Rancière (2009) understands a method of equality to be about, which to him happens in-between disciplines: ‘the common sharing of the capacity of thinking’ (author’s emphasis; p. 19). ‘The common sharing of the capacity of thinking’ ‘reinscribes the force of descriptions and arguments in the equality of common language and the common capacity to invent objects, stories and arguments’ (Rancière, 2006: 12). For Rancière, equality, which is not the liberal kind, is ‘the mad presupposition that anyone is as intelligent as anyone else and that at least one more thing can be done other than what is being done’ (quoted in Chambers, 2013: 28 (Chambers’, and my emphasis added)). To take the liberty to speak is to think along by presupposing equality. In addition, a case also communicates equality not only because a case does not have a master but also because it organizes a public and invites evaluation on its part, which places those addressed in a position of equality, and to freely think along and for oneself, independently, about the case, and beyond, not to take my word for what is at stake. The case and detail(s) invite searching debate, among people, members of a public, who are amateurs and intellectuals too, equal(s) to the one on the case, equal(s) on stage in the theater of the detail. According to Lauren Berlant (2007) the case expresses a ‘desire for shared knowledge’, for knowledge to be shared, which assumes we are all in a position to know (p. 664). Although the one making the case might know more, because she is on and made the case, she does not know best or better: there is no permanent position of expertise or epistemic authority available in making cases, in sharing the capacity for thinking, in practicing equality. ⁶

The case

Legally speaking, the case I am building, in which hard work plays a key role, stages the convergence between copyright law and trademark interests, in the interest of the alliance, against unruly consumers.

Michael Helfland (1992) establishes a trend toward the convergence between copyright law and trademark interests and argues that it is underwritten and motivated by the ‘creative and financial value of fictional and pictorial characters’ which has ‘skyrocketed’ (p. 623). The ‘creative and financial value of fictional and pictorial characters’, such as Harry Potter, is captured in trademarks, which can be licensed and which are the legal embodiment of a brand. The brand is, as Scott Lash and Celia Urry (2000) argue, what the global culture industry is all about: ‘If the culture industry worked largely through commodities, global culture industry works largely through brands’ (p. 5). The brand is more prominent than the commodity which Adam Arvidsson (2006) attributes to a ‘structural transformation’ in the media and culture industries embodied in the consolidation of ‘global giants’ such as AOL-Time-Warner, Disney and Viacom because of ‘new technologies’, among which ‘cable, satellite, VCR and internet’, as well as a ‘new regulatory environment’ (p. 75). Yet, while these mergers were driven by economies of scale, this transformation was also driven by ‘the increasing recognition that the key to future profits lay in marketing strategies that could reach across different media platforms’ (Arvidsson, 2006: 75). As Dan Schiller (2000) puts it, ‘Such vertically integrated megamedia as Time-Warner, Disney and New Corporation were created to fulfill the strategic goal of cross-promotion and cross-media development’ (p. 99). Lash and Urry (2000) also assume that the key to future profit lies in such crossings by suggesting that ‘the brand instantiates itself in a range of products, is generated across products’ (p. 6). Arvidsson (2006) refers to the kind of brand that involves different media platforms and is present in ‘a plurality of circumstances’, for example, toys, film, games, fast food, as a ‘brand of content’ (p. 6). A brand of content provides a context for the product consumed, such as the story of Harry Potter.

Licensing characters, as trademarks, and selling trademarked or branded products generate ‘billions of dollars every year’ (Helfland, 1992: 623). Helfland (1992: 623) observes that Warner Brothers Inc. together with Walt Disney has played leading roles over the years by bringing on lawsuits in establishing convergence. To be able to ‘oversee any and all character-related uses’, ‘owners and creators seek to wrap their fictional characters in a net of invulnerability, a net created through an artful interweaving of copyright, trademark and unfair competition laws’ (author’s emphasis). Furthermore,: ‘The stronger a trademark a character becomes, the less interest an owner has in tolerating uses that copyright alone otherwise allows’ (Helfland, 1992: 623). According to a Warner Brothers executive, who is the head of consumer products in Australia, ‘licensing is where the money is’ (Marketing Magazine, 2011). He adds that at Warner Brothers ‘we do everything in our power to maintain the brand relevance and strength of our characters’ (author’s emphasis). Henry Jenkins together with Sam Ford and Joshua Green (2013) observes, in the face of uncertainties around creating and maintaining brand value online specifically, ‘[R]ight now, many companies hold on to the idea that a brand may carry a highly restricted range of meanings, defined and articulated by official brand stewards’ (p. 202). As Rosemary Coombe and Andrew Herman (2001) put it, concerning trademarks, ideally their ‘circuit of meaning’ is ‘closed’, their meaning contained, and context limited, and secured (p. 922). They add, ‘unauthorized appropriations’ and ‘alternative forms of signification’ that ‘disrupt this closed circuit must be monitored’ and if possible ‘strictly prohibited’ (Coombe and Herman, 2001: 923).

A brand with a closed circuit of meaning is distinctive and resistant to interpretation, and hence the meaning it embodies, captured in the identity of the brand and in providing context, cannot proliferate, through ‘alternative forms of signification’, by unruly consumers such as fans who create symbolic meaning and value in excess, fan fiction, which makes a difference to the brand identity and of content, weakening it and the context it provides for consumption, diminishing its brand value. For surplus symbolic meaning prevents the brand from representing something in particular and dilutes its identity and more or less established meaning, including the context for its consumption. Surplus symbolic meaning undermines brand distinctiveness, the financial bottom line.

A strong brand identity for the world of Harry Potter^™, distinctive and resistant to interpretation, embodies the shared interest of the alliance, against the proliferation of meaning, against unruly consumers. Most distinctive and resistant to interpretation is an identity that is a stereotype: an image that through repetition speaks for itself, and on which no words are and can be wasted, in excess. What if it were possible to achieve a closed circuit of meaning, and stereotyping, to secure a distinctive and resistant brand identity, by law, legally, because an opportunity presents itself?—the opportunity to claim ownership in the language that constitutes the meaning of the world of Harry Potter, the language that is copied and pasted into the Lexicon, into its references, what they refer to.

How did my case about the convergence between copyright law and trademark interest come together? Because I investigated the (missing detail of the) alliance, which led me toward what the conglomerate and the author have in common, share an interest in, which explains the significance of their alliance against the publication of the Lexicon, and unruly consumers: a distinctive and resistant brand identity. And because I ‘listen’ closely and carefully, and notice a hole in the (w)hole story, ‘the story of how she did it’, the author, according to the legal representation of the alliance, namely, through hard work. With an eye for detail, I notice a hole through which the (w)hole story, from ‘rags to riches’, can be turned inside out, twisted, tortured, which explains what is at stake, for the author and the conglomerate, but which has nothing to do with hard work.

I notice or detect the hole by ‘listening’ closely: ‘listening’ because I learn what I hear from the transcripts of the trial, which I read closely. The transcripts are by a certified court transcriber who, according to The American Association of Electronic Reporters and Transcribes (n.d.) on their website, transcribes the court record, which ‘captures all words as exactly spoken’. The transcript reproduces the spoken words, captured in analog or digital recordings, as written sentences, which include punctuation marks, but not quotation marks. In addition to the comma and full stop the transcript relies on the mark ‘- -’ to indicate the interruption of the flow of the sentence that is taking shape. The transcripts from day 1, day 2, and day 3 (D1, D2, D3) of the trial are available on the website of the Stanford Centre for Internet and Society, via a blog by Anthony Falzone (2008). Falzone was also one of the lawyers involved in defending RDR books. It is to the copyright dispute and the trial I turn next.

The copyright dispute and hard work

From 14 April 2008 until 17 April 2008 in the US District Court, Southern District of New York, Warner Brothers Entertainment Inc. and J.K. Rowling, the plaintiffs, meet against RDR Books, the defendant, before the district judge, referred to as ‘his Honor’. In the reporting on the trial, and during the trial the author takes center stage, notwithstanding the fact that the conglomerate and the author sue together, a detail that is overlooked, and goes missing. Consider the following headlines:

J.K. Rowling sues to stop ‘Harry Potter Lexicon’ (NBC News, 2007)

Rowling launches lawsuit against Harry Potter Lexicon (CBC News, 2007)

J.K. Rowling files lawsuit against company trying to publish Potter ‘Lexicon’ book (Zambito, 2008)

JK Rowling in court to fight fan’s Harry Potter Encyclopedia (The Guardian, 2008a)

J.K. Rowling at court in Manhattan to sue author of Harry Potter Lexicon (Eligon, 2008)

Sued by Harry Potter’s creator, Lexicographer breaks down on the stand (Hartocolis, 2008)

JK Rowling wins copyright claim over Harry Potter Lexicon (The Guardian, 2008b)

Rowling wins book copyright claim (BBC News, 2008)

Rowling wins lawsuit against Potter Lexicon (Eligon, 2008)

The author is the focus of attention, also for the legal experts, and ‘the story of how she did it’, how she ‘created one of the most enchanting and profitable worlds known to the history of literature’ (D1 (29: 2–3)) sets the stage for the trial. From the opening statements, the author, together with ‘hard work’ takes center stage. Hard work drives ‘the story of how she did it’ forward, directed against copying by Steven Vander Ark, a fan and the author of the Lexicon, and toward an outcome that has legal implications for all fans. Hard work is directed against copying, which is lazy, and theft. In the author’s words, with reference to the Lexicon,

I believe this book constitutes wholesale theft of 17 years of my hard work. (D1 (44: 3–4))

Hard work is the moral of the story, ‘of how she did it’, which also means to do the right thing, which the easy, lazy thing to do, copying, is not. ‘To do what is right, not what is easy’ is what Professor Dumbledore would do, according to the legal representation of the alliance. But the emphasis on hard work, as a keyword does more, beyond being virtuous and doing the right thing, in relation to property and ownership, and what is at stake.

In Keywords: A Vocabulary of Culture and Society, Raymond Williams (1976) includes words that are significant to our most general arguments and that are ‘strong, difficult and persuasive words’ (Williams, 1976: 14). Keywords are words that invite ‘explicit but as often implicit connections’ when mobilized in discussion and debate, and as ‘significant, indicative words in certain forms of thought’ (Williams, 1976: 15). Keywords connect with other keywords, which pieces together a way of thinking. As ‘tacit’ they also invoke unspoken, but implied assumptions that powerfully influence the argument, discussion, and debate that is taking shape, because they resonate within ‘culture and society’. Keywords capture a way of looking at the world, as well as point toward issues and problems, within ‘culture and society’.

Williams (1976: 335) suggests that ‘the basic sense of the word’ ‘work’ is to ‘indicate activity and effort or achievement’, which originates in the time ‘when agriculture was invented’, the time when ‘real work, steady work, labour for one’s livelihood came into being’. As hard work, work relates to labor in that labor ‘in the medieval sense’ embodied ‘pain and toil’ (Williams, 1976: 335). Hard work evokes not just effort, but real work, the physical labor of working the land, cultivating it: proper, honest work that gets your hands dirty and hurts. In putting forth the argument that the author worked hard, what is being evoked is hard work on what Michel De Certeau (1984) refers to as ‘the soil of language’. Indeed, he identifies ‘writers’ as ‘heirs of the peasants of earlier ages’ (p. 174). To work the soil, or the land, to ‘mix one’s labor with it’ according to John Locke entitles one to property and ownership, assuming that the one working the land is not only working hard but is also in possession of himself, owes nothing to nobody, to society, and everything to himself.

The author in ‘the story of how she did it’ at some point in her story came into possession of herself and started to work hard, which is why she is entitled to property and ownership, beyond morally entitled. As the author puts it,

I worked very hard, and I made sacrifices for my work. And if, when I had been literally choosing between food and a typewriter ribbon, I had been told I did not own these words, these words were not mine, they could be taken, lifted by anyone and resold under a different author’s name, so-called authors name, I would have found that quite devastating. (D1 (94: 1–4); author’s emphasis)

It is not completely clear, whether, in the past, the author has or has not been told that she does not own these words. Either way, you, your Honor, are not going to tell me now that I, after all (the hard work), do not own these words, are you?

We are all encouraged to have, and author a life story, through which we make something of ourselves:

For modern people, fitting the narrative form entails seeing one’s life as having a certain arc, as making sense through a life story that expresses who one is through one’s own project of self-making. (Appiah, 2001: 327)

As (neo-)liberal subjects, we are all encouraged to try and make something (better) of ourselves under circumstances that are more or less remarkable, which does not make the effort involved less worthwhile. The author’s struggle to make something of herself is ours too. Among projects of self-authoring and self-making, the most (melo-)dramatic stories are those that tell a most impossible story about how someone becomes who she is, a most impossible story that transforms nobody into somebody, and who comes to enjoy recognition, and success, as a reward. Such impossible and popular stories follow the basic outline of what is known as the ‘rags to riches’ story.

The basic outline of the ‘rags to riches story’ explains success, ‘usually defined in material terms’, that is, ‘wealth’, as a ‘reward’, as opposed to ‘an ideal-in-and-of-itself’, because the outcome of ‘sheer effort, hard work, and virtuous behavior’, which has merit and a most dramatic edge given where the hero, who usually comes from a ‘foreign or rural background’ starts from, namely, ‘life in the abyss of poverty’ (Naveh, 1991: 60). Today, poverty, as a structural problem, is often reframed, in politics, in the register of the moral and psychological, such as dependency on welfare, which the author was for a short while, a single mother on welfare. If working hard is a healthy work ethic and working yourself out of poverty is admirable, working hard not to depend on welfare is most admirable and rewarding, because most politically charged, not only in the US context but also in the UK context, beyond Thatcherism, for New Labour too. Whether the author as single, unemployed, and ‘on welfare’ ever embodied the ‘welfare mother’, and whose life story, ‘the story of how she did it’ thus unfolds from ‘rags to riches’, or simply to riches, is open to debate. It is a story that sells, the author and the Harry Potter stories. And whether wealth can be justified because it is worked hard for it is open to debate too.

The author herself sums up her life story as follows, as evident from a speech she gave in 2008, titled The fringe benefits of failure and the importance of the imagination, delivered at the Harvard commencement (Rowling, 2008). The author declares that at the start of what became the Harry Potter series, she ‘by every usual standard’ was ‘the biggest failure I knew’ and had ‘failed on an epic scale’, a realization she found nevertheless ‘liberating’, constitutive of a new beginning. What enabled her to succeed was that she ‘stopped pretending to herself’ ‘that I was anything other than I was’ (author’s emphasis), that is, a failure, ‘and began directing all my energy into finishing the only work that ever mattered to me’. The story concludes, and foreshadows the success ahead: ‘And so rock bottom became the solid foundation on which I rebuilt my life’.

As the story suggests, the first step in a project of self-making is to take personal responsibility for the lack of opportunity, and being nobody, or dramatically worse, a failure even, on the basis of which one is thus also fully responsible for and deserving of the success hard work delivers. Furthermore, by working hard, we all have within our reach the ability to become somebody, not just anybody, and successful, and any constraints are personal obstacles and challenges. As such, on the basis of mere hard work, the story also proposes that society is a meritocracy with equal opportunities for everybody.

The moment the author decided to stop denying that she was anything other than she was, and took responsibility for and control of her life, an act of discipline, of self-discipline and self-help, to face and overcome her failure, she became an author, including of her life, someone in possession of a self, herself. Somebody. The moment the author re-directed her life toward finishing the work she started, and became a person, no longer a failure, responsible and self-possessed, she also became entitled to ‘the fruits of her labor’, ‘her words’, in addition to her success and wealth as a reward for hard work. To be in possession of a self entitles one to property, and property testifies to one’s self-possession. As C.B. Macpherson (1962: 200) explains, John Locke’s theory of property right has its basis in the following ‘postulate’:

Every Man has a Property in his own Person. This no Body has any right to but himself. The Labour of his body, and the Work of his hands, we may say, are properly his.

Macpherson (1962) continues quoting Locke that furthermore, ‘Whatever a man removes out of its natural state, he has mixed his labour with. By mixing his labour with it, he makes it his property, “at least where there is enough, and as good left in common for others”’ (p. 201). Thus, men can appropriate ‘the fruits of the earth’ (Macpherson, 1962: 201). But man is also entitled to the land that he mixed his labor with, assuming that to yield fruits, the earth has to be cultivated. The harvest belongs to me, because I harvested it, but the land that I harvest from belongs to me too, because I cultivated it:

As much Land as a Man Tills, Plants, Improves, Cultivates, and can use the product of, so much is his property. He by his Labour does, as it were, inclose it from the Common. (Macpherson, 1962: 202)

In this case, because the author too became a person in her own right, who owns herself, the assumption is that the words she worked so hard for, on the soil of language, are hers, the fruits of her labor, which should exclude others from using them. Furthermore, by working the soil of language, the author has cultivated a language that is her own, which constitutes the meaning of the words in the Lexicon, that is, make up the references. ‘Her’ words and language are to be enclosed from ‘the Common’ (language), made into private property instead.

What is put at stake, by the plaintiffs, as belonging to the author as her property, on the basis of ‘hard work’, are not just words, but sentences or phrases, words tied together, the combination of words in a string that capture that which the words in the Lexicon refer to and in the context of the books they appear in. These sentences or phrases capture the meaning of the words they refer to in the author’s language, what is identified as ‘definitive J.K. Rowling language’ (D1 (140: 8)), her personal, distinctive language, her typical phrasing which she created and crafted, cultivated, and perfected as a style over seven books:

He sat there and he took notes. She said a word and he would write down what it said. (D1 (13: 5–6))

What it said, what the word said is effectively its meaning, which is captured in ‘evocative beautiful phrases crafted by Ms Rowling’ (D1 (13: 15)), ‘memorable’ (D1 (13: 19)) too—phrases that are ‘recognizably’ (D1 (59: 21)) hers, by the author’s own account, although it mostly seems to be ‘merely’ language. For she states,

‘A long rectangular room’, my language.

‘Low-hanging lamps’, my language.

‘Huge tank of greenish liquid’, my language. (D1 (139: 11–12))

Her language that she cultivated, into a recognizable style, and thus the meaning of the world of Harry Potter should be removed from the Common and converted into a private possession, as exclusive. As property, because of the result of hard work, and hence exclusive, others can be legally prevented from using her language, retelling the story, wasting her language, using it in excess and by proliferating the meaning of the world of Harry Potter. Legally, the author, as ‘the principle of thrift’, ⁷ is in a position to economize on meaning, against waste and excess. But to what end, where and how does the alliance fit in? And does hard work have anything to do with ‘the story of how she did it’, in the end?

The (w) hole story, and twisted truth

To arrest the meaning of words once and for all, that is what Terror wants.

Jean-Francois Lyotard quoted in Michel De Certeau (1984: 165)

‘In times of terror, he [Walter Benjamin] writes, when everybody has something of a conspirator in him, everybody also has the opportunity to play detective’. (Todd Herzog, 2009: 16)

In the ‘Opinion & Order’, his Honor rules and concludes, on fair use, or the lack thereof:

Ultimately, because the Lexicon appropriates too much of Rowling’s creative work for its purposes of a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same (*) and thus deplete the incentive for original authors to create new work.

(*) See Tr. (Murphy) at 419:24-2 (stating her opinion that publication of the Lexicon would open doors to widespread creation of works that copy too much from the Harry Potter works). (US District Court, Southern District of New York, Opinion & Order, 2010: 66)

Because the Lexicon engages in ‘considerable verbatim copying of the Harry Potter works’ (US District Court, Southern District of New York, Opinion & Order, 2010: 65), publication of the Lexicon would diminish Rowling’s copyright in what is considered to be her own language, which would give others also the opportunity to speak it freely, without fear of being sued. Effectively, it would also allow for legal recognition of some kind to be bestowed on fan fiction writing, and the proliferation of meaning, the excess and surplus meaning, accumulated in the archives, would burst onto the scene (also flooding the market for Harry Potter). Such proliferation would indeed cause a ‘loss of distinctiveness’ (D3 (677: 11)) of ‘her own works’ (D3 (677: 11)), a loss of distinctiveness for the world of Harry Potter, which legal representation of the alliance points out is at stake in their closing statement.

In prohibiting the publication of the Lexicon, because it copies too much of the creative and hard work, ‘the distinctive original language’ (US District Court, Southern District of New York, Opinion & Order, 2010: 49) of the author into it, the law recognizes and secures ‘the distinctive original language’ of the author as hers, as bearing the author’s mark and because the author worked hard for it, and therefore as her property, as ‘copyrighted expression’ (US District Court, Southern District of New York, Opinion & Order, 2010: 33). But it does more, in favor of distinctiveness.

For what does her language, copyrighted expression, effectively constitute, in the context of the Lexicon? It constitutes the references to the words included in the Lexicon, what they refer to, and as such it expresses the meaning of the words included in the Lexicon. Words, the entries in the Lexicon, which are characters too, have a reference, a meaning, and identity, captured in and expressed by the ‘distinctive original language’ of the author, which is protected as property by copyright. The implication of the verdict is that the words and characters defined by the ‘distinctive original language’ of the author cannot be taken out of context: they belong in the original stories by virtue of the fact that what they refer to, their meaning and identity, their properties are the property of the author, which as exclusive limits their appropriation and circulation. Words have a meaning, properties, the expression of which is the property of the author, which empowers the author to make their circulation exclusive, limited, and belonging to the original context they appear in. Furthermore, as property, the meaning of her words is exclusive to them: the words have an exclusive meaning. The author is in the possession of their exclusive meaning, and thus controls the meaning and identity of the words and characters, because she owns their properties, as copyrighted expression. The author is legally in a position to enforce a proper and fixed meaning and identity for the world of Harry Potter, as the official, authorized meaning, and to enforce consumption as proper: orderly, respectful, and conserving. Technically, legally, fan fiction, and any borrowing of words from the world of Harry Potter can be considered illegal, because in creating different stories, it takes words out of their context, changes their properties, which attributes a different, improper, unauthorized meaning to them, and because words have an exclusive meaning to begin with. The law constitutes us as an audience of consumers that can only ever tell the same story, over and over again, keeping us in place as consumers, keeping the order in favor of ‘power, privilege and property’. The story of Harry Potter is a reified, frozen story, alive and dead at the same time, undead to the imagination, stuck on a particular meaning, which is arrested.

A frozen, arrested body, of language. We know who did it, and why? Or do we? Is it the whole story? Who benefits? What about Warner Brothers Entertainment Inc.? Where do they come in? Through a hole in the author’s official story of how she did it and that delivers the (w)hole story, the case against fair use, about the alliance, legally too, and hard work.

His Honor translates the presence of Warner Brothers Inc. on the scene into an expression of wonder about the motivation behind the lawsuit, which he evaluates as being ‘lawyer driven’: ‘you have the fair use people on one side, the lawyer group, and a large company with a lot of money on the other side’ (D2 (477: 12–14)). What is ‘a large company’, a multi-media conglomerate with a lot of money trying to achieve, together with the author, except and beyond spending money on a lawsuit? Should we follow the money? Legal representation or council for the Plaintiffs ask the author: ‘Ms Rowling, is this case being driven by Warner Brothers?’ (D3 (654: 23)). To which the author answers,

Absolutely not. Any representation that Warner Brothers has in this case is for entirely, - - I don’t even know the correct legal terms, but they are licensees. I have licensed them certain rights in the Harry Potter property to enable them to make their film adaptations. (D3 (654: 24–25; 655: 1–4); author’s emphasis)

The author is tongue-tied. ⁸ Her answer falters. It stumbles, in looking for the right word to fill in the blank and complete the sentence. The word that fills in the blank, and which indicates a hole in her story, what is not being said about the case, is an opening to find out what more is at stake in the case, because it, licensees, does not explain the presence of Warner Brothers Entertainment Inc. on the scene in a case about copyright and fair use. Unless, of course, the stakes involved in the publication of the Lexicon do not involve copyright and fair use, but licensing too, which is the shared interest of the alliance.

The conglomerate and the author mobilize copyright law to protect their shared interest in the Lexicon, its content, ⁹ which is being decided on alongside, together with and in the guise of an answer to the question of whether or not the Lexicon, in terms of copyright law, is fair use. For to be able to limit the circulation of words, out of context, and to be able to control their meaning as exclusive, to the author, and hence control the proliferation of meaning, out of a concern for an official, proper meaning is in the interest of licensing, and concerns the use, or exploitation of the characters and everything else as trademarks or brands, which is how a lot of money is being made.

In taking the opportunity to sue against the publication of the Lexicon, mobilizing the law and securing the verdict in their favor, the conglomerate and the author are legally in a position to enforce stereotyping, rigidity and resistance to interpretation, protecting brand identity against surplus meaning, excess symbolic value, and hence brand dilution. Legally, technically words and characters cannot be taken out of their context, and their meaning and identity are the property of the author, who can make sure they are used properly, to support and enforce distinctiveness, against dilution. The story can only be repeated, wholesale and Harry Potter and his world stay who they are, forever.

In 1979, Michèle Barrett (1979) writes, ‘Totalitarianism within culture practices always remains the limit case—never reached’ (p. 23). Today, the unholy alliance between the conglomerate and the author technically realizes a legal prohibition on the proliferation of meaning, in principle total in reach, terrorizing our imagination, which enables them to exercise exclusive or monopoly control over the production of meaning, and institute stereotyping to safeguard the symbolic value of the world of Harry Potter, and, hence, cash in, on its brand value, licensing. By making Harry Potter into a stereotype, and having stereotyping protected by law as well as made into a legal imperative for consumers, fans included, the unholy alliance between the conglomerate and the author prevents fans and consumers from proliferating meaning creatively, outside the boundaries of the archive, spreading and circulating around the Internet. Given that Harry Potter and his world are legally cast as stereotypical, officially, ‘in public’, he can only be acted toward and related to in ways that involves repetition, lacking in imagination, and popular creativity, in support of propriety and distinctiveness, against unruly consumers.

And in support of making money. After all, ‘licensing is where the money is’. Indeed, a lot of money is being ‘made’, by the alliance, not as profit, however, but collected as rent, by renting out trademarks to those licensed to brand them on their products, mass-produced consumer goods, which puts a twist in the rags to riches story, in hard work:

Ms Rowling signed a contract in 1998 with Warner Brothers, part of AOL Time Warner, giving the studio exclusive film, licensing and merchandising rights for what now appears a steal: some $ 500,000. Warner licenses other firms to produce goods using Harry Potter characters or images, from which Ms Rowling gets a big enough cut that she now is wealthier than the Queen—if you believe Britain’s the Sunday Times Rich List. (The Economist, 2003)

Renting out the characters, by the conglomerate across different media and in different circumstances, and getting a percentage of it, the author, allow both to make money, without having to do any work, making any effort, without having to be productive, that is, improve on that which exists already: no new wealth is being created by either of them, the reward for working hard. Instead, more wealth is just accumulated. The members of the alliance merely collect rent. The emphasis on hard work throughout the trial obscures its absence in securing what is at stake, trademark interests, which account for the riches the author/business woman has been able to accumulate together with Warner Brothers Inc. There is no work, hard or otherwise, involved in collecting rent. Specifically, and effectively, in the context of Locke’s theory, collecting rent betrays ‘the essence of rational conduct’, namely, to ‘subdue and improve the earth’ (Macpherson, 1962: 233). Thus, collecting rent contradicts and invalidates ‘the story of how she did it’, the argument in favor of hard work to secure what is at stake, in the end.

Afterword

If the work does not fit—because it is controversial, interdisciplinary, or not written like a journal article—then perhaps you should submit to this journal. (Parker and Thomas, 2011: 426)

The text I have written and staged draws attention to how building bridges between work and consumption is less than straightforward, but complicated and twisted instead, in the end. In my attempt at building bridges, between work and consumption, we also find ourselves on a bridge, a suspension, which is a space of the in-between, in-between discipline(s), suspended, by pleasure too, and in suspense, whether one more thing can be done than what is being done. A bridge is unlike a border, which also embodies an in-between. A bridge is an inviting space, directed outward, and that reaches out, as opposed to creates exclusivity, like borders do. A bridge is not an enclosed space. A bridge is not about fitting in, and it is not embedded in a language, of belonging, community, and identity, to be included within boundaries as different. A bridge is about doing things differently, more equally, and making a difference, like the detail. In-between, the practice and communication of equality are at stake, spoken in a dialect, so as to have a searching debate about ‘power, privilege and property’ that will not run out of steam anytime soon, like critique has. Perhaps.