Law and the Potter mythos

Specialist critique of literature is often extremely interesting for revealing possibilities of what the author intended (or raising ones not intended). In this light I've just been enjoying some scholarly papers I found via the Social Science Research Network. Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World (Aaron Schwabach, Thomas Jefferson School of Law, TJSL Legal Studies Research Paper No. 05-13, Roger Williams University Law Review, 2005) and Harry Potter and the Half-Crazed Bureaucracy (Benjamin Barton, University of Tennessee College of Law, Michigan Law Review, Vol. 104, May 2006) both look at the legal system within the Harry Potter mythos.

The Schwabach paper focuses on the law, and application of it, relating to the Unforgivable Curses, comparing this with British and international law on equivalent issues such as torture and the death penalty. Schwabach concludes that legal framework within the Potter mythos can be interpreted as that of a society which has made imperfect laws in the confused aftermath of a war. He argues, furthermore, that the Potter books will raise a generation tuned into the analysis of legal/moral quandaries. I'd like to think so, but unless such difficulties are explicitly highlighted in the narrative, I think it's likely that many such problems will slip by under the usual action story convention that a hero's violent actions against villains are rarely questioned. An example of this was raised a while back by Shami Chakrabarti: see Harry Potter is a war criminal (Paul Rodgers, The Independent, 26 August 2007), which discusses the considerable problem of Harry being allowed to get away with using the supposedly unforgivable Crucio curse on Amycus, a minor baddie, for the pretty trivial reason of his spitting on a teacher Harry likes.*

The Barton paper, on the other hand, leads with

What would you think of a government that engaged in this list of tyrannical activities: tortured children for lying;1 designed its prison specifically to suck all life and hope out of the inmates; placed citizens in that prison without a hearing; ordered the death penalty without a trial; allowed the powerful, rich, or famous to control policy; selectively prosecuted crimes (the powerful go unpunished and the unpopular face trumped-up charges); conducted criminal trials without defense counsel; used truth serum to force confessions; maintained constant surveillance over all citizens; offered no elections and no democratic lawmaking process; and controlled the press? You might assume that the above list is the work of some despotic central African nation, but it is actually the product of the Ministry of Magic, the magicians' government in J.K. Rowling's Harry Potter series.

and reads Rowling's portrayal of the Ministry of Magic as an intentional indictment of government, finding in it a libertarian message.

Another paper by Schwabach, The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright (Aaron Schwabach, Thomas Jefferson School of Law, University of Pittsburgh Law Review, Vol. 70, 2009, TJSL Legal Studies Research Paper No. 1274293) is an up-to-the-minute exploration of copyright and intellectual property issues of derivative fiction. Its case studies are the dispute between Larry Niven and Elf Sternberg over the latter's use of Niven's kzinti in "slash" fan fiction; Marion Zimmer Bradley's change of heart over fan use of settings in her Darkover mythos; and the recent legal dispute concerning JK Rowling and The Harry Potter Lexicon. The last piece provides an extensive overview of Harry Potter clones and parodies, and I was delighted to see it cites a JSBlog posting about Tanya Grotter in a footnote.

Addendum: * I've just been informed that within the HP mythos, during the first Voldemort crisis, Unforgivable Curses were authorised by Crouch for use against Voldemort and his followers, and so this technically still applies to Harry's use of Crucio on Amycus. However, this doesn't make the problem go away; given the extent to which the wrongness of the curses is stressed, it's reasonable to assume very strict "rules of engagement". The subsequent exchange between McGonagall and Harry makes it clear he has majorly overstepped those rules

"... Potter, that was foolish!"
"He spat at you," said Harry.
"Potter, I – that was very – very gallant of you – but don't you realise –?"
"Yeah, I do," Harry assured her.

Realise what? That unless she keeps quiet about it, he's at the very least up for the equivalent of a court martial? That the incident passes without further analysis suggests that Harry, as postulated by Shami Chakrabarti, has indeed got away with a war crime.

- Ray

More Russification / Wind Done Gone

I recently mentioned Tanya Grotter, Dmitri Yemets' Russian "cultural reply" to Harry Potter. I've been reading Wikipedia on the subject, and was interested to find behind this a long-running story of Russian adaptations of classic Western literature - not mere translations but Russification to adapt to local cultural flavour. We have Tolstoy's Buratino (based on Pinocchio); The Wizard of Emerald City, Alexander Volkov's adaptation of L. Frank Baum's Oz mythos; Nabokov's Anya in Wonderland (see Nabokov as Translator for background); and Boriz Zahoder's adaptation of Winnie the Pooh (see the Zahoder page at the Russian State Children's Library). These works have acquired classic status within their genre: the Volkov adaptations have even come back into English and inspired the works of March Laumer (brother of SF author Keith Laumer - more about him soon). I find it hard to conclude JK Rowling's successful litigation to prevent Western publication of Tanya Grotter to be of long-term benefit to literature; Tanya Grotter and the Magical Double Bass looks an interesting book that could enlighten Western readers about Russian mythology and life in modern Russia.

You can, incidentally, with a little Google-Fu, find a detailed English-language analysis of the the first three Grotter books in Tanya Grotter: a Russian Harry Potter Knock-Off or Parody?, Mark Hooker's conference address reprinted in Selected Papers from Nimbus-2003 Compendium. If you go to the link above and search the book internally for "Tanya Grotter" (use the Google Books "search in this book", in the right-hand sidebar) you can track through the article page by page (ie pp75-104).

Hooker ultimately concludes that the relationship between Harry Potter and Tanya Grotter is akin to that of Gone with the Wind and Alice Randall's The Wind Done Gone, a retelling from a slave perspective (marketed and legally defended as a parody, though it obviously isn't one in the usual comic sense of the word). A legal dispute on very similar grounds to that of Emets vs Rowling concluded as an out-of-court settlement - Settlement reached over 'Wind Done Gone' - enabling the book to be published. The US climate and scenario is, however, rather different, in that The Wind Done Gone was "home-grown" and had strong expert support for its cultural perspective; also, a block on publication raised First Amendment issues of "unlawful prior restraint".

Addendum, 12 Oct 2008: I just ran into another example of a retelling of a novel still in copyright, Pia Pera's Lo's Diary 2001 , Vladimir Nabokov's Lolita retold from the point of Lolita herself, portraying her as a sadistic monster: see Salon Books' The Nymphet Strikes Back and Nerve.com's On a Book Entitled Lo's Diary (Dmitri Nabokov's commentary). Despite considerable legal wrangling, a settlement was reached between Pera and Nabokov's estate - Pact Reached on U.S. Edition of 'Lolita' Retelling (Peter Applebone, New York Times, June 17, 1999). It shows that such accommodations are perfectly feasible.

- Ray

Tanya Grotter

Rather than make the obligatory comment about the release of the last Harry Potter novel, I thought I'd mention a more interesting bibliographic story: the case of Tanya Grotter.

The Tanya Grotter series is a very popular Russian clone of Harry Potter by the best-selling author Dmitri Yemets. There is no doubting the origin, and Yemets is open about it: introduced in Tanya Grotter and the Magical Double Bass, Tanya is an orphan with magical powers, brought up by an abusive foster-family, who gets to go to a wizarding school, etc etc. You won't currently get to read it in translation because in 2003 lawyers for JK Rowling and Time Warner successfully brought a cease-and-desist action to prevent the release of a Dutch translation, and this is likely to be the fate of translation into other languages (see Pravda's J.K. Rowling law firm sued Russian publishing house Eksmo on plagiarism allegation and the BBC's Rowling blocks Grotter release). Rowling's lawyers argued that the Grotter books violated copyright, and Yemets and his Moscow-based publishers, Eksmo, were unsuccessful in defending it as a parody. The latter is permitted under copyright, which is why Michael Gerber's Barry Trotter series is allowed.

On the face of it, this sounds like a cut-and-dried copyright case. But Maureen O'Brien, a blogger in the USA, wrote a deal at the time about the Tanya Grotter series, suggesting that it has been misrepresented. According to Defending Tanya Grotter, the case failed to address the point that the Grotter series is not a parody (in the sense of an extended joke) but a contrafakt: a form of literature that retells a story in a different genre. Compare "contrafactum", the same concept applied to music. Maureen gives the particular examples of Sharon Shinn's Jenna Starborn and Pat Murphy's There and back again, respectively SF retellings of Jane Eyre and The Hobbit. The latter is a particularly significant precedent, as The Hobbit is still in copyright.

As described in Maureen's review , Tanya Grotter has structural similarities to Harry Potter, but is so deeply adapted to a Russian setting that, Maureen argues, it amounts to a different work (or, as Yemets put it, a "cultural reply" to the Potter series). For instance, Tanya doesn't sleep in a broom cupboard but a loggia, a glazed balcony (freezing in winter, sweltering in summer) characteristic of Russian apartments. The magical elements are rooted in Russian folklore, such as Baba Yaga and Rusalki, and general Russian culture such as the works of Pushkin and Rimsky-Korsakov's Night on Bald Mountain. You can read about some of the characters at another of Maureen O'Brien's postings, A little more measured response.....

None of these subtleties came out at the Dutch court sessions, and few commentators outside Russia bothered to investigate (news items just reported the similarities and assumed the copyright breach to be clear-cut). One exception was Tim Wu at Slate.com - Harry Potter and the International Order of Copyright - who argued that the freedom to create derivative works is actually beneficial to the literary market. There have been no attempts to market a translation since then.

- Ray

Addendum: I've commented on this further in a later post, More Russification / Wind Done Gone. - Ray