Topical Tuesday: Fanfiction, Intellectual Property, Harry Potter and South Park

Every Tuesday, my fellow author and friend, Chandler Craig (chandlermariecraig.wordpress.com) and I will pick a topic and each discuss our thoughts about the matter. In the future, we will post the topic as early as Monday morning so that other authors and bloggers have the opportunity to write on their own blogs that Tuesday on the same topic. Don’t forget to read Chandler’s blog when you’re done here and leave your own thoughts on the topic in the comments.

So, today’s topic is about using other people’s work in your own (fanfiction). Is it okay to use other people’s characters in your own work? What if you never make money off of them and it’s all online? How far should intellectual property rights go? Can we really control – or should we even try to – what’s on the internet?

As many of you know J.K. Rowling has recently tried to stop certain people online from using her characters in their own stories. The question is, why. I’m not talking about her reasons in particular, but why I imagine it could be important for someone to restrict the use of her characters. In the first place, it’s her intellectual property. She created it and as such has the right to use it as she pleases. Okay, fine – that seems reasonable. Unreasonable, though, is the idea that once she created those characters, she had control over them. Harry Potter and the world around him is an idea and those ideas are in the public forum. The movement of ideas can’t be stopped and neither can our imaginations (watch episodes 1110, 1111, and 1112 of South Park about Imaginationland if you don’t believe me). If you write a poem, you don’t have the right to tell me how to interpret and understand it. Once it’s out, it’s out. And in a certain sense, the same goes for fictional characters.

We ask questions like, what would Harry Potter do in this or that situation and then we imagine how it would go and even argue with our friends about what Harry would do based on our understanding of his character. This is pretty natural and the basis for a lot of high school literature classes. Is that a violation of intellectual property? So we take it a step further. We go online and we write up this imagined scenario with a character that the public is already familiar with. Is that wrong? Well, it’s certainly trickier. Discussion in class or with friends is one thing but suddenly I’ve put pen to paper (though it could have been an essay for a teacher that I posted online?) or fingers to keys and I might have a lawsuit on my hands.

In fifth grade my class read The Phantom Tollbooth, an absolutely wonderful book (go to http://www.thezenofsouhtpark.com/Merchandise to purchase it now). We were asked to write an additional chapter to this book as an assignment and then we read our chapters aloud to the class. I wrote chapter 15 and a 1/2. How clever of me. What if I’d posted it online? What if we all had? Adorable, it certainly would have been, but couldn’t the author have found it problematic that we were using his characters and potentially, shall we say, defaming them? This, I think, could be the issue. If I wrote a graphic and detailed novel about Hermione Granger and Ronald Weasely making the hottest, kinkiest, nastiest and raunchiest sexy time imaginable (sometimes what I see in my head does not need to make it to paper) I would probably be defaming Rowling’s intellectual property by corrupting readers’ images of these characters (or showing them that Ron was more creative and interesting than we thought). I could see how an author might oppose me doing this. So if sex is a problem, what about Ron playing videogames all day? Is that defaming his character? What about Ron smoking crack? Who knows what Rowling could have a problem with us writing about and this, as I see it, is the issue.

As I’ve already said, I don’t imagine this scenario as one where people are trying to make money off of her intellectual property (save some Google AdSense ads, perhaps), but they are potentially messing up her creation and therefore causing her to lose money. Arguably, though, it’s free advertising for her since all of the collectibles and books and ideas in people’s heads all go back to padding her pockets. Since we can’t really know the net effects considering all of the other variables regarding the continued success of Harry Potter, maybe it’s best to leave well enough alone – especially when we remember that at best, shutting down a site doesn’t mean the content won’t appear elsewhere and that all advertising is good advertising so by harping on the doings of one or two people, Rowling is only publicizing their actions since she is the public figure and not them.

But this issue is a lot closer to my heart – and my own work – than the above would let on. I am writing, as many of you know, about South Park. That is someone else’s intellectual property (I’d like to say Trey Parker and Matt Stone but I’m going to go more with Comedy Central and Viacom) and I am using it. More than that, I’m using it to make money. Sure, it’s free publicity for everyone involved and I seriously doubt that anyone will watch South Park less after reading my book – probably more (at least I’d like to think so). After all, I’m agreeing with the show and fleshing out its ideas and supporting its methods. But maybe that’s the problem. By claiming that South Park is saying this and that I could actually be defaming the creators or their show in some way – that is, if they disagree. But the thing is, I’ve got it pretty spot on (I would argue that, wouldn’t I) and even if they don’t agree with my assessment, it all goes back to the poem issue I brought up in the beginning.

If you’re a poet and write a poem, I can interpret it however I want. Sure, it has a context and the way you feel about it and why you wrote it but it’s freaking poetry – if it doesn’t have multiple layers of meaning (and some the poet herself doesn’t see), it’s probably crappy poetry in the first place. And the same goes for a show like South Park. It’s a brilliant social commentary with multiple layers of meaning saying dozens of things at once. Like many writers, Parker and Stone probably only see some of the wider implications embedded in their work once they’re done with it and reread it. That happens to me all the time when I edit. I didn’t even know how deeply my thoughts were enmeshed in the work until I read back and saw what I was really getting at. With South Park I have just taken even more steps back than even they perhaps (and my friend who edits my own work, Kush – next week’s guest blogger – sees the big picture I’m creating better than I do sometimes) and looked at their entire compendium to really extract all of what is being said about religion.

And now I’m going to try to sell my collection of thoughts about the matter and make money of off their intellectual property. But hell, for them it’s free advertising and hopefully understanding that other people really do get, care about, and appreciate what they’re saying (pending I got any of it right).

I like to look at this as though it were academia. Academics take other people’s work all the time, whether art, historical sources, literature, or whatever, and write all about it and it’s meaning. It’s how we understand the period, the culture, the history, the authors and so much more. And no one gets sued for it (mostly) because we are allowed to write about what other people say and do. Journalists do it every day. It would be one thing if I just reprinted someone’s poems or published my own South Park DVDs but I’m not concerned with the images and the original product – just the ideas that are conveyed. I may quote the words said by Cartman in writing but I’m not showing him saying them. Of course, I’m not making fanfiction because I haven’t had Cartman say new things or created my own South Park episodes (though those are all over the internet). I have just taken what Cartman and Stan and Mr. Garrison and others really did say and explained why it’s meaningful and what larger implications it has and the lessons it can teach us.

So, this is clearly a complicated issue and people have a right to feel the way they do about protecting their intellectual property. Fortunately, I haven’t run into any problems yet and with other South Park books out there, I don’t expect to (until I put clips in a chapter by chapter format on my website), but J.K. Rowling has created her own issues by being upset with the use of her intellectual property. But how far should she go and is there a point to going there? I really can’t say, but I do know one thing – fanfiction is an internet based grassroots approach to utilizing ideas and with the globalizing world coming at us faster every day, there is no stopping that even if you tear down one website that talks about Hermione and Ron gettin’ busy behind the rows of mandrakes.

Do you agree? Disagree? How? Why? After leaving your comments here, make sure to check out Chandler’s thoughts at chandlermariecraig.wordpress.com.

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Read more about the writing process and other Topical Tuesday posts.

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3 Responses

  1. So, I was thinking about what you said about under what conditions might it be wrong to use J.K. Rowling’s (or whatever author’s) characters. (i.e. the sex example). And I’m thinking that we should lean to the side of no stipulations on how we portray someone else’s characters.

    I’m about to use an analogy that I’m sure is flawed on so many levels, but, yanno, it’s a blog so feel free to point out why I’m wrong.

    When I’m driving, I belt out songs as loud as humanly possible. I have a horrible voice. If the artist who came up with that song heard me sing it, they would most certainly think that I am portraying their masterpiece in the worst possible light.

    If people heard me sing it (and they do because I happen to have friends that I share my godawful singing with) and thought that it was my own song and that’s how it was sung in “real life” they would most certainly not want to buy it. It would be out of key, I might change some of the lyrics, etc. Therefore it would hurt record sales for the real artist whose song it was.

    But, the thing is…it’s not my song and people tend to know that. No matter what light I portray it in. It’s not going to twist the minds of listeners and forever damage their listening pleasure of this song–at least I hope not).

    Plus, if you try to take away my car singing, I will NOT be happy.

  2. hummm… an interesting issue indeed. i have a question (that i think might actually be answerable in a somewhat straightforward sort-of-way…)

    how does it work for a spin-off tv show? like, did the makers of fraiser have to “buy” the character from cheers? or did the makers of joey have to buy him from friends? i think you get what i’m getting at… it would be interesting to know, at least to have a precedent to clarify the terms of the debate.

    it’s funny, because if you’re writing for an academic journal, you can take other people’s ideas all that you want, and as long as you footnote them and (perhaps…) push them in an oh-so-slightly different direction, you’re golden… even hailed as brilliant sometimes… so maybe it’s okay as long as you footnote… i think the moral of the story is, the world should come with footnotes.

    that’s all i’ll say about that.

    cheers,
    jenn

  3. I love the idea of footnoting everything. I had a friend who thought my credibility in an argument was due to my ability to site the sources from which I was stating my case. Plus, footnotes clear up all ambiguity. However, I suppose that in a case like Harry Potter, everyone knows what your ‘idea-source’ is, though it could be nice to thank J.K. Rowling for her characters and recommend her books (though why people would read fanfiction before the original I’m not sure).

    As for the tv show spinoffs, either the writers and producers of the new show would had to have bought the rights to the characters, or what is more likely, since both Cheers and Frasier, Friends and Joey, were all on the same channel, is that NBC had to do little more than tell its people to keep writing but just about one character in a new life, so there was no transferral of rights or anything. Unfortunately for NBC, they had a lot more luck the first time than the second.

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