Potter Publisher Going After Fan Fiction In China

from the how-dare-fans-encourage-more-reading! dept

In the past we've covered various stories of how author J.K. Rowling and her publisher have been needlessly aggressive in trying to enforce copyright claims dealing with Harry Potter. Years ago, we noted that Rowling didn't seem to mind fan fiction, as long as it didn't involve "adult" themes. However, when the money starts rolling in, perhaps things change. The NY Times has an article that claims to be about copyright infringement and counterfeit Harry Potter books in China, but the details suggest it's really more about fan fiction. The article focuses almost entirely on non-authentic Harry Potter books, often written by fans, that are then sold to a Chinese market clamoring for more Harry Potter. In those cases, it's much less a copyright issue and much more of a trademark one. However, as Against Monopoly points out, this has apparently spurred greater interest in reading among kids, so of course Rowling's publishers are looking into stopping these books from being sold. You can certainly understand Rowling's worry about being wrongly associated with works that she had no part in writing... but you have to wonder if she's perhaps missing an opportunity by simply sending in the lawyers. Clearly, there's demand for these works, and it doesn't seem like the demand in any way harms the commercial possibilities for her own works. If anything, it may drive even more interest in the legitimate books. These aren't substitutes. The only reason people want these fake Harry Potter books is because they can't get enough of the real thing. So why not encourage that kind of activity to help grow even more interest in the real product?


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  1.  
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    Anonymous Coward, Aug 2nd, 2007 @ 5:55pm

    How is this more of a trademark issue than copyright? A copyright allows for protection of derivative works, it sure sounds like these books would be considered a derivative work if they are being sold as "real" Harry Potter books. It doesn't sound like they are being marketed as a satire either.

    Sure, she could make more money by trying to license the Harry Potter name, but she doesn't have to. At this point, she is probably one of the few women in the world who doesn't want or need more money.

    I generally agree with much of the I.P. related articles you post, but this one is a real stretch.

     

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  2.  
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    Anonymous Coward, Aug 2nd, 2007 @ 6:22pm

    If she doesn't want more money then...

    why is she being such a bitch about the possibility of a few pirated E-books when she could sell hundreds of thousands legitimately?

     

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  3.  
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    Buzz, Aug 2nd, 2007 @ 6:29pm

    Fan Fictions are GOOD

    Fanfics should be taken strictly as a compliment! Imagine the sudden feelings of betrayal when one minute you are excited to continue the story of Harry Potter while the next minute the people whom you idolize are threatening to attack you and destroy your creation of worship. Yes, I understand the whole concept of making money off another one's creative works, and that should have boundaries. Regardless, if I had creative works (and I will in the coming years), I will only encourage derivative works. It will only extend my reach. ^_^

     

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    critical_thinker, Aug 2nd, 2007 @ 6:32pm

    the real motive comes out?

    your views on IP are interesting, but clearly uninformed where the law is concerned - and they tend to sound like the proverbial hacker who wants to justify his behavior and shift the blame to the producer/owner of the property.

     

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    Bob, Aug 2nd, 2007 @ 6:41pm

    The real question is...

    What would have happened if these works were given away instead of being sold?

    Would the Publishers and Ms. Rowling be all up in arms?

    I do see her point, that if people are selling their "fanfiction" then the fans might actually mistake it as Ms. Rowling's work and be discouraged by what they read.

    But at the same time, if someone gave away this "fanfiction" because as someone said it was their "creation of worship" I doubt the Publisher would have reacted in this manner.

     

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  6.  
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    Harry, Aug 2nd, 2007 @ 6:45pm

    Harry Potter books

    That publisher has way too much power. For example, lobbying BC Canada to make it illegal to read a few 'accidental releases' - that's a bit much. It's a mania that has enriched the publisher at the expense of inalienable rights.

     

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  7.  
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    Faceless Minion, Aug 2nd, 2007 @ 6:54pm

    I generally agree with the stances of this site on copyright law, but on this one no. They aren't just making fanfiction, they are selling it and marketing it not just as fan-fiction but as an actual product. That totally comes under the derivative works part of a copyright, and I side with Rowling on this one. I know you guys seem to like to bash her, but she's not in the wrong at all here.

     

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    Zegota (profile), Aug 2nd, 2007 @ 6:56pm

    I agree with Faceless, Rowling is right on this one. Fanfiction is one thing; legal and should be encouraged. Selling the fanfiction and making money off of her ideas is WRONG and she has every right to make sure it doesn't happen.

     

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    Bent out of shape, Aug 2nd, 2007 @ 6:59pm

    Re: If she doesn't want more money then...

    Why don't you spend 10 years writing a series just to have someone steal it. Then we'll see how you feel, idiot.

     

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  10.  
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    Mike (profile), Aug 2nd, 2007 @ 7:07pm

    Re: the real motive comes out?

    your views on IP are interesting, but clearly uninformed where the law is concerned

    Why do you say that? I've been reading, writing and consulting in this space for nearly a decade. I find it amusing that people tell me I'm uninformed but never bother to explain how. If I'm uninformed, inform me.

    Either way, as I've said repeatedly, my position is not concerned with the *legal* rights, but the best business position for encouraging innovation. If I believe the law is bad for business, then I will say so. That may make some folks (such as yourself) assume incorrectly I don't understand the law, but that's not the case at all. I'm simply trying to explain where the law doesn't make sense.

     

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    duane, Aug 2nd, 2007 @ 7:08pm

    The difference between hobby and illegitimate busi

    I agree with Faceless Minion and Zegota. Fanfiction, given away for free and done because you love characters, is great. It's free publicity for the books and obviously not directly affiliated with the author. No one mistakes fanfiction for the real thing. But like they said above, selling derivative works is wrong; it is a blatant copyright violation, and not done because of the love of it, but to make money from someone else's work. If Rowling and her lawyers were going after fan written works that were being given away for free, I would agree with you, but that's not what's happening.

    What you have to understand about writers is that they spend so much time and effort to create a world and the characters in that world. For them this is not a purely economic issue; it's about control of your own creation. I have a great amount of respect for Rowling to say, "There's going to be 7 books, because that's as far as the story needs to go, and that's it." If she just continued to put out books because she could, or if she just farmed it out to other authors so she could sit back and rake in money, I would totally lose respect for her as a creator.

    There are times when you guys have to ignore the economic issue and think about this from a creator's standpoint.

     

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  12.  
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    Anonymous Coward, Aug 2nd, 2007 @ 7:13pm

    Fan fiction on the web free......sure


    Selling it, if it is not criminal I can sell computers I build in my garage and label them Dell.

    I can record and sell my new album "The Beatles" "A collection of lost recordings".

    I can also start writing "Star Wars Episode 7" "Return of the living dead Jedi"

     

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  13.  
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    Mike (profile), Aug 2nd, 2007 @ 7:26pm

    Re:

    I generally agree with the stances of this site on copyright law, but on this one no. They aren't just making fanfiction, they are selling it and marketing it not just as fan-fiction but as an actual product.

    Again, read what I said. I'm simply asking what harm it's doing to let these sales continue? I do say that you can understand her concern, but if it's not harming her, then what's the issue?

     

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    Anonymous Coward, Aug 2nd, 2007 @ 7:32pm

    Re: Re: the real motive comes out?

    Mike,

    Usually, I support your views. However, I don't fully agree this time because I interpret writing a derivative work for profit without permission is at least trademark infirngement, and beyond "fair use" (if that still exists!). And specifically, writing about the main characters does not sound much like innovation, IMHO. I see innovation, in this case, probably along the lines of alternative characters in the same universe.

    Just my 2cts, and no, I'm not the 1 who posted the comment you were responding to... peace

     

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  15.  
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    Harry, Aug 2nd, 2007 @ 8:07pm

    Harry Potter style

    In the world of music this mimicry goes on unabated. The whole British invasion sounded much like the same stuff to my parents. Heck, they have two guitars, a bass and a set of drums - is that not the Beatles style?

    Another example is anime cartoons with big eyes. Back in the 1960's there was a cartoon named Astro Boy that looked a lot like the Japanese characters do today. Are you saying that anyone who draws in this style is guilty of infringing? Just who owns the 'big eye' drawing style?

    So what is so different about the Harry Potter style? Can I not make a scary book? Can I not print the title with spooky script? Can I not use the name of Harry - that's a pretty common name. Seems to me that the publishers are reaping where they have not sown. Besides, copyright varies from country to country, so much so that the Beatles could never sell any of their re-releases in Japan.

    I think that dirivitive works should be allowed. If Rawling is such a good writer, it should be just as easy to differentiate her quality product from the copy cats as to tell the difference between musical groups. To do otherwise is to open up a huge amount of litigation. Too much litigation is a bad thing for any kind of art.

     

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  16.  
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    duane, Aug 2nd, 2007 @ 8:15pm

    The artist's perspective

    Mike said: I'm simply asking what harm it's doing to let these sales continue? I do say that you can understand her concern, but if it's not harming her, then what's the issue?

    The harm, like I mentioned in my earlier comment, might not be economic, but there's more than economics here. It is about art and the creation of that art. I have no problem with artists deciding to put their work out there and say, "Hey, do with this what you will." I think there are some cool opportunities there. But for someone to decide to make a quick buck off of someone else's work is not right. The whole title of the post is misleading, because the whole point of fan fiction is that it is done for the love of the characters and world, not to make money. Also, it doesn't try to pass itself off as legitimate works approved by the author. Think about this like an artist, and not an economist. There is more to this than economics.

     

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    duane, Aug 2nd, 2007 @ 8:22pm

    It's not about style or genre conventions

    So what is so different about the Harry Potter style? Can I not make a scary book? Can I not print the title with spooky script? Can I not use the name of Harry - that's a pretty common name. Seems to me that the publishers are reaping where they have not sown. Besides, copyright varies from country to country, so much so that the Beatles could never sell any of their re-releases in Japan.

    Everything you mention here has nothing to do with what was actually going on. We're not talking about writing a novel in a genre or style. We're not talking about "Oh, you can't have wizards because someone else has already used those." Sounding like another band, or writing like another author is not the point. The point is passing derivative works off as if they are the real thing. All writers and musicians (of which I am both) and all artists in general take inspiration from others. We take ideas, concepts, sentence structures, description from each other, use them in new ways, change things up. Many of the British Invasion bands you mentioned were heavily influenced by African-American blues music; they took those ideas, made something new. Sometimes they were trying to sound just like those artists. But they didn't record an album and stick one of those blues musician's name on it and pretend it was the real thing.

     

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  18.  
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    Banana Froth, Aug 2nd, 2007 @ 9:32pm

    Re: Harry Potter style

    Mike,
    The "if it doesn't hurt someone, what's the harm?" mentality is very close to the "if you didn't do anything wrong you have nothing to hide" mentality. I am surprised you would see it this way given your feelings toward most other issues.
    Yes, economically the best thing the publisher could do is license these books and share the wealth. Letting it go wouldn't hurt them economically either because I doubt these particular books are cutting into the original book sales. They may even encourage more sales of the original book, as you stated.
    However, you are disregarding one of the prime rights given to a creator: control of their work. While economic value is a result of one holding a copyright to a valuable work, of equal value to many is the knowledge that their work can't be distorted or changed (no matter how good or bad it is economically) unless it is with their consent. I know many that wouldn't even release their work if this type of protection was not allowed. Someone that pours years of their life into a creative work has a deep connection with it. This isn't about getting money, it's about Rowling keeping control and her connection with her creation.

     

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  19.  
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    reed, Aug 2nd, 2007 @ 9:38pm

    Re: The artist's perspective

    "Think about this like an artist, and not an economist. There is more to this than economics."

    So then your defining harm as hurting an artist's feelings?

    The economic argument is the only thing that could hold a candle in court. Personally I think they should make steamy hot Potter novels where he shags all the girls in Hogwarts and then sell it around the world.

    If people will buy it....:)

     

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  20.  
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    Mike (profile), Aug 3rd, 2007 @ 1:03am

    Re: Re: Re: the real motive comes out?

    I don't fully agree this time because I interpret writing a derivative work for profit without permission is at least trademark infirngement, and beyond "fair use"

    Which is exactly what I said in the post, so I'm not sure what you're disagreeing with.

     

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  21.  
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    Mike (profile), Aug 3rd, 2007 @ 1:06am

    Re: The artist's perspective

    The harm, like I mentioned in my earlier comment, might not be economic, but there's more than economics here. It is about art and the creation of that art. I have no problem with artists deciding to put their work out there and say, "Hey, do with this what you will." I think there are some cool opportunities there. But for someone to decide to make a quick buck off of someone else's work is not right.

    Perhaps it's just the world that I come from, but this doesn't make any sense to me whatsoever. If no harm is being done, what's the problem? The net result of the position you take is a negative for everyone. It harms society, whereas my position harms no one. I don't see how you can justify your position over mine -- especially by claiming some sort of moral right.

    Think about this like an artist, and not an economist. There is more to this than economics.

    If I think about it as a creator, I still don't see your point. If someone finds my content interesting enough to create derivative works and add more value, that's fantastic -- even if I don't directly benefit from it. Why should I complain?

     

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  22.  
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    Carol, Aug 3rd, 2007 @ 5:58am

    More like fraud to buyers

    These fake Potter books may be what American consumers who are used to the genre consider fan fiction. But they aren't being sold that way in China. They are being sold as part of the Potter series. That seems like just another counterfeit, inferior product being foisted on Chinese consumers

     

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  23.  
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    Bonjour, Aug 3rd, 2007 @ 6:09am

    good idea

    When I was younger I read the entire collection of Sherlock Holmes by Arthur Conan Doyle. I loved it. In fact, I loved it so much I bought tons of parities and probably own 30 something books that aren't written by the original author or his "estate". I know the original author is dead and perhaps this doesn't apply to this particular situation, but I think it's great that people are continuing the books where the author left off. Sometimes you just can't get enough. In my mind, Arthur Conan Doyle is an "Author God", and you can truly never replace his original work. In fact, I will go back many times and reread the originals. Why isn't this applied here? J.K. Rowling is an "Author God". She can truly never be replaced with parities/fan fiction.

     

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  24.  
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    Former Customer, Aug 3rd, 2007 @ 7:30am

    I used to like the Harry Potter franchise until I started hearing about all the retarded crap the Author & publisher are doing to their fans.

    You won't be getting another dollar of my money you greedy witch.

     

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  25.  
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    Jeff, Aug 3rd, 2007 @ 7:42am

    .

    No matter who's wrong or isn't, good luck getting the Chinese gov't to do anything about it.

     

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  26.  
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    Chris, Aug 3rd, 2007 @ 8:42am

    I actually think people should be allowed to write whatever the hell they want as long as it's not uncredited word-for-word plagiarism. I don't think copyright or trademark should override freedom of speech (even if that speech isn't political). Of course, this is in China where freedom of speech isn't a right. But if someone else can use her characters and somehow actually outsell her books, then more power to em, guess she should have written a better book in the first place. I'm tired of these stupid copyright laws that were made to protect Mickey Mouse anyways. I'm guessing this stance on IP won't be very popular with most people but IP isn't exactly great the way it is now either. And now I'm waiting for Harry Potter And The Da Vinci Code to hit shelves soon to be followed by a major motion picture!

     

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  27.  
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    duane, Aug 3rd, 2007 @ 10:40am

    Re: the artist's perspective

    The net result of the position you take is a negative for everyone. It harms society, whereas my position harms no one. I don't see how you can justify your position over mine -- especially by claiming some sort of moral right.

    Exactly how does an artist retaining some measure of control over their work for a reasonable amount of time harm society? I'm not suggesting that the whole "wizard school" genre be reserved for Rowling. I'm talking about her specific creations. It's a bastardization of her creations, done for someone else's profit. False Potter creations, especially if they are done under the guise of the real thing, can end up harming the franchise as a whole, because the quality is bound to be less than the original, but it is pretending to be the real thing. That's my whole point.

    Despite the title of your article, this isn't about fan fiction, even though your arguments continue to be made from a fan fiction perspective. If this was just fans writing stories, posting them online, and everything, I would have no problem with it. I totally agree with your position, as it relates to fans writing characters they love because they want more. I would even agree if your position was that Rowling should consider licensing her works so that derivative works could be made. I even agree that the copyright term should be drastically lessened.

    I know that it seems that economically it would be a good idea to let these derivative works go. But I know that fans have a tendency to be a bit fickle. They'll go all crazy for more of something, then turn the moment something disappoints them. Derivative works of lesser quality that claim to be legit can end up hurting the series as a whole because of that association, especially as time progresses, and some memory of the original fades.

     

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  28.  
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    Anonymous Coward, Aug 3rd, 2007 @ 12:59pm

    Re: Re: Re: Re: the real motive comes out?

    Well, I'm trying to figure out whether beyond "fair use" could possibly be related to copyright infringement?

     

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  29.  
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    Anonymous Coward, Aug 3rd, 2007 @ 2:00pm

    Re: Re: the artist's perspective

    First off, the original article covers a lot of things, going from a totally unrelated book with the exact same title (as the 7th book) being played off as the original, over books written by others being passed off as "official" books as well as books written by others and being "advertised" as such (fan fiction would fall into this category).

    So based on the original article, Mike is just as much justified to focus on the fan fiction part, as you are on the books being passed off as the 7th book, or as other (non-existent) volumes from the (official) Potter collection. In fact, since we're on Techdirt, not the NY Times article, one could argue you're not justified at all to keep going on about the instances Mike is clearly not talking about.

    Furthermore, I don't think it makes any difference whether you post fan fiction online for free, or sell it (online or hard copy)... what is the difference? Let's say somebody writes a Harry Potter story, and in no way, shape or form, explicitly or implicitly, promotes it as being a real Harry Potter book (as in, written be Rowling). How can it be ok to post this "book" online for free, and not be ok to have it printed and sold?

    I totally understand Rowlings concerns, but as long as a unrelated book is not in any way attributed to her, and the real author is put on the book, how can anybody mistake it for her work?

    I also think the concept of derivative work is somewhat of a stretch when it comes to books, at least within the boundaries of fan fiction, ie, somebody writing a completely original story (even though they use existing characters).
    I totally see that with regard to music/movies/tvshows, because there an integral part of a certain song/movie/tvshow is copied/reproduced and used as such.
    In the dicussion here, we're essentially talking about the re-use of names (of people, activities, places,...) which, as long as one wouldn't copy (or use in a modified form) text from the original books, to me seems too little to be any infringement or justify being a derivative work.

     

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  30.  
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    Joshua, Aug 3rd, 2007 @ 3:36pm

    Dilution of IP

     

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  31.  
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    Joshua, Aug 3rd, 2007 @ 3:38pm

    Re: Re: The artist's perspective / Dilution of IP

    (sorry for the double post - the blank one can be deleted)

    The issues involved here are threefold: creative, financial, and legal. From a creative point of view having more variety in the market can only be considered a good thing - assuming a certain level of quality, of course. :-) there is a huge volume of Harry Potter fan fiction available on the Internet as it is, much or most of it ranging in quality from between 1/10 to 5/10 -- stuff that you'd never see on bookshelves. And that's already assuming it's not pornographic. If the higher-quality material can get wider distribution I think that would probably improve the status of the Harry Potter creative universe, rather than detract from it in anyway.

    From a financial perspective I'm quite sure that while J.K.R. has more money than she knows what to do with right now, I'm equally sure that Scholastic would want to exercise its corporate greed in obtaining any additional revenues from any other sources possible. That's a standard practice for any corporation. As such, ignoring not for profit works, while vigorously pursuing any work that would bring the creators any profit is hardly surprising, whether in Scholastic, or in any other business or corporation.

    Finally -- and most importantly -- is the legal considerations involved in this pursuit. Modern intellectual property law quite specifically requires the holder of any IP to vigorously pursue any and all infringing work. Failure to do so in even a single documented instance can result in the courts -- especially when prompted by other corporations seeking to make a profit -- to claim that a trademark or other intellectual property has become ‘diluted’. Once that occurs, the cliché “give an inch and they'll take a mile” goes into effect, and from that point on any other individual or company can use and abuse that IP in nearly any fashion they desire. As a direct example of the circumstance, if JKR and Scholastic books do not vigorously pursue the fake Harry Potter books being sold in Asia, and that would permit American companies to freely commercialize existing public domain and made for hire fan fiction and offer it for sale for-profit as they wished, with neither revenue nor control going back to either Scholastic books or JKR.

    While some people may consider this a good thing, one can easily see the consequences if one extends this to its logical conclusion: allowing anyone to freely parasitize anyone else's creative work. This would quickly result in a situation where media conglomerates would not bother to compensate creative authors except in the most meager degree -- even less than they are doing now. Instead, the media companies would simply wait for the intellectual property to become available through other means, and then take the authors work to promote and exploit it in whatever manner they chose.

     

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  32.  
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    Mike (profile), Aug 3rd, 2007 @ 5:17pm

    Re: Re: the artist's perspective

    Exactly how does an artist retaining some measure of control over their work for a reasonable amount of time harm society?

    By putting a limit on what society can enjoy. If you read the original article, it's clear that plenty of folks in China get enjoyment from these alternative Potter books. Blocking them when it causes no harm to Rowling limits that benefit. Hence the harm to society.

    False Potter creations, especially if they are done under the guise of the real thing, can end up harming the franchise as a whole, because the quality is bound to be less than the original, but it is pretending to be the real thing. That's my whole point.

    You're making a different point here, saying that the bad offshoots hurt the brand, but you need to provide a lot more evidence than that. After all, there are already tons of these books in China and it seems to have only INCREASED demand for the real thing, even if the fakes aren't very good. So you claim that it will harm her brand, but there's no evidence that this is actually the case.

     

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  33.  
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    jane_jericho, Aug 3rd, 2007 @ 6:46pm

    I was a little confused by the phrase "going after fan fiction in China" because where I'm from, if it's sold for profit, it's not fan fiction. By definition, at least in media-fannish circles, fic is not written or distributed to make money.

    What the article you link to describes isn'tt fan fiction at all, as I understand the term.

     

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  34.  
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    Anonymous Coward, Aug 4th, 2007 @ 2:12pm

    Re:

    She might have trouble claiming Harry Potter as her own... http://en.wikipedia.org/wiki/Troll_(film)

     

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  35.  
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    critical_thinker, Aug 6th, 2007 @ 9:23pm

    Re: Re: the real motive comes out?

    Well, to put it plainly, reading and writing and consulting on IP issues doesn't mean you necessarily understand the law - or the cases over the decades and centuries which have established precedents and shaped the law. Several other people here have mentioned why your thinking is askew from a legal standpoint. In this particular case, the best business position - in your opinion - would be at the cost to the IP owner and would violate their rights. The law is meant to protect those rights, regardless of what the best business position might be. So while acknowledging and agreeing with you that a better business decision might be possible, I do not join you and criticize and fault the owner of IP for protecting their rights.

     

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  36.  
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    Jane, Aug 18th, 2007 @ 3:27am

    A bit late, but here are my two cents on it: Jo Rowling earned fair ans square every single penny from her books. While fan fiction in essence is a good substitute (well, now more than a substitute since the publication of the last book) and it is a great advertizing for the original, selling fan fiction is wrong and Jo and her publishers have every right to go after those. And I hope they'll succeed!

     

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