Raiders of the Vander Ark
April 15th, 2008 by GregTHE BACKGROUND:
This post grew out of a New York Times article on the publication of the (book-form) Harry Potter Lexicon, which existed first as a website. MTV has informative and concise coverage of the issues behind the trial. We began discussing this issue at Tuesday’s screening, and Abby, feel free to tack stuff onto this post–somehow, via the design of this site, I guess, posts feel more legit than comments, and I don’t want to shut out your post just because I got to the internet earlier in the night.
THE DISCUSSION:
Of particular interest to me is the idea of transformative work. It seems to me that anything Steve Vander Ark writes in his own words (as opposed to quoting from the HP text) is, in some way transforming or adding to our understanding of Harry Potter.
“It’s not as if we are describing something that exists outside my imagination,” said Rowling, according to the MTV article, which is an interesting contention to say the least. I’m right now trying to decide whether Tolkien would agree with or chastise his most visible of fans, Rowling.
I am reluctant to get into a discussion of the HP Lexicon website, as the book/copyright issue is so interesting, but I don’t think it’s possible to fully flesh out the issue without realizing that the book came out of (and still exists as) a website. Also, once I post this, it’s really out of my hands (a transformed work?).
P.S. For those swing dancers in class, Henry Jenkins presents…THIS
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Sorry the links don’t open in a new tab–I think wordpress hates me.
A plug for my own blogging about the Lexicon dispute — I wrote some preliminary thoughts on the issue here.
I am personally very against the for-profit publication of the Harry Potter lexicon. I’m not sure that this is going to be the most coherent argument ever, but basically, my thinking is that if this can be considered “transformative,” then anything can. Plagiarism is still plagiarism, even if it doesn’t come in direct quotations. An entirely book can’t be past off as one’s own creative work if it is totally composed of quotations and paraphrasing. In response to Greg’s point that anything that isn’t direct quotation is transformative, I think it’s worth mentioning that something still counts as plagiarizing in the academic world if you’ve paraphrased/lifted an idea without adding anything new, even if you changed the wording. Generally I would argue that to be transformative, something has to be ideologically different or illuminating about your work, not merely syntactically altered. As Rebecca Tushnet points out in her article in Fandom, “The rhetoric used by courts in transformative use cases suggests that, to be fair, a transformative use must add new material that reflects critically on the original.” The Harry Potter lexicon adds nothing new; it catalogs and reproduces existing text.
Bob makes the point on his blog that the Lexicon acts as a “functionally distinct entity by disarticulating the conventional narrative pleasures offered by Rowling’s primary text: what’s stripped away is her voice, the pacing and structure of her storytelling. By the same token, however, the Lexicon produces Rowling’s world as something separate from Rowling.” I would argue that this is not the intent of the Lexicon as its author produced it and as most people would read it. The object is not to provide something distinct from Rowling’s creation–the Lexicon is not intended as a book to be read in its own right–but only as a key to keep track of the diversity of Rowlings’ world. Maybe the fact that there is a minority of people out there that prefers to read encyclopedias about Harry Potter rather than Harry Potter itself means I’m wrong. But I don’t think that the author of the Lexicon really thinks his work is creative and worthwhile as a stand-alone read–I think he’s making the only legal argument possible that will allow him to publish and make money.
Finally, and I know that this is a tertiary point, in my personal opinion, an encyclopedic fan creation fundamentally misunderstands the point of Rowlings’ work. Bob also writes: “The Lexicon, whether in print or cybertext, does compete with Rowling’s work — if we take that ‘work’ as being primarily about building a compelling, consistent world.” I think that nothing in Harry Potter is about building a compelling and, most of all, a consistent world. The Harry Potter universe is totally inconsistent, and resists attempts to work with it the way people work within the Tolkien-verse or Matrix-verse. The world of Harry Potter revolves around Harry Potter–he is at the center of the universe–and it can’t exist without him, opposite the way that Middle Earth totally functions without Frodo. I’ll just make a few points to underscore my interpretation. If the number of new wizards entering any given class at Hogwarts are true (40), there aren’t enough wizards in Britain to merit an entire government/social system to administer them. There frankly aren’t enough wizards to stock a bureaucracy. What do wizards do if they don’t work for the Ministry of Magic (or teach or work at the hospital)? What do wizards do until they’re 11? Why doesn’t Hogwarts have any clubs for Muggle-born students (does nobody want to play soccer or do theater after they discover magic)? Why is there no wizard literature–since they seem to stop teaching reading classes after age 11, are all wizards functionally illiterate? What do Muggle-born wizards do about their extended families? They wouldn’t be able to have a conversation with their grandparents about anything, because they stopped reading Muggle books, following Muggle politics, listening to Muggle music, learning Muggle math, etc. after they turned 11. Anyways, I’m probably just inviting a lot of angry rebuttals on the merits of Harry Potter (which, by the way, I do love), but my point is that in my select opinion, which I in no way expect to be an opinion that the legal system shares, to be “transformative” in the way Tushnet describes the legal meaning, a work has to engage “Harry Potter” on some other level than the hyperdiegetic.
Here’s the thing, though–the fact that we can even speculate about the things about which you speculate here means that Rowling has engaged in world-creation, and if she’s engaged in world creation, then it is a slippery slope to argue that one fan’s production of meaning in or around that world (regardless of how trite or profit-oriented it is) is invalid.
I tend to agree with Abby here. While I have no problem with the Lexicon being available as a fan work online, I think that a line is crossed when it is being sold for profit.
That said, I don’t know what to think about the determination that reference guides in general are considered fair use. The first thing that comes to mind is Anthony Burgess’ “ReJoyce,” an extensive critical guide to “Ulysses.” While Rowling’s lawyers have countered this with the argument that the Lexicon is unscholarly, I distinctly recall some critical essays (not very good ones) on the Lexicon website. I wonder how much the academic component really matters given the Matt Hills essay. Is the Lexicon a copyright infringement because the criticism is poor and it is the product of a fan trying to make a profit, or are any works that ‘transform’ a text through critism (no matter the academic quality) by sold. I am not really sure how to feel about the nature of the fair use laws in general. It will be interesting to see the outcome of this trial and future appeals.
Well, moreover, Steve’s job before all this happened was as a school librarian. Loathe as I am to classify HP as children’s books, I doubt most literati would put them on the same level as Ulysses. Steve’s academic qualifications in this case seem perfectly suitable to me — he’s had training and extensive experience in the finding and cataloging of facts. I’m not sure how well that’d hold up in court, but if they’re going to deny the Lexicon book legitimacy on the basis of whether or not it’s scholarly, they need to define how they’re using that term.
You said that “The object is not to provide something distinct from Rowling’s creation” and that’s true. But you mistook Bob’s words, which were correct: the object is to provide something distinct from *Rowling*. Jo herself makes mistakes and is inconsistent sometimes in what she tells us as far as supplementary canon facts go (for example, when asked what ages Bill and Charlie Weasley were, she gave an age that would have put Charlie in his seventh year in Book 1). One of the major goals of the Lexicon is to catalog the HP canon in a way that is entirely internally coherent, which is *not* something that Jo has done, probably will do, or probably even can do, frankly. It *is* illuminating about her creations, because an article on the Lexicon provides more information than the books do (since it includes interviews and such) in a way that’s far easier to absorb all at once. Oftentimes I’ve spoken to people who are confused about a timeline or the origin of a character or what a certain spell does, and have pointed them to the Lexicon, and then they are no longer confused. I would say they are, in fact, illuminated.
(None of this, by the way, is meant to actually argue that I think Steve’s book is legit for profit-making, especially since the Lexicon is sort of a quasi-wiki and I think it works a lot better online than it ever would in print.)
Finally, your point about Steve thinking the book’s creative or not: I know Steve, and I’m pretty damn sure that he doesn’t see the Lexicon as a creative work. But he’s bitten himself off more than he can chew. At this point, he’s affiliated with a kind of sketch publishing house that obviously thought he was some kind of jackpot, I’m pretty sure he’s quit his job, and he’s left his wife. Not to play a pity game, but he doesn’t really have much of a way out of this one. (Sorry, Steve.)
I think “creative” has nothing to do with it. “Transformative” is what’s at stake, and I still maintain (see below: comment 4.1) that even if Vander Ark is a money-grubbing anti-fan with a morally suspect personal life, if he is producing his own understandings of the definitions of these terms, then we have no choice but to recognize his work.
But he’s not producing any meaning–he’s just reproducing meaning.
I agree that whether or not J.K. Rowlings has engaged in world-creation is debatable and my comments on that point are just my opinion and really don’t have too much bearing on that count. But by your definition, any publication of text, ideas, characters, world-bits from Harry Potter in any form would count as fair use. Would it be fair use for some unauthorized person to publish “Harry Potter: Abridged?” I sincerely hope not, even if that fulfills similar functions to what Bob is saying the lexicon might: the person edits out the parts of the book they find least relevant and highlight the most important. But that would be very obviously plagiarism–nothing new would have been added, only parts of the original work reformatted.
I would disagree; As I argue above, I think that Vander Ark publishing definitions, in his own words, of words that Rowling has invented and described in her own words is in fact the creation of new meaning.
Abridging, with its lack of creation of new material, is, I think, fundamentally different (though it undoubtedly alters meaning).
How is “in his own words” in this case different from paraphrasing (recalling my earlier point that un-cited paraphrasing still counts as plagiarism by any academic standard)?
That’s a good question, and I’m not really sure how to answer it. I agree that there’s a fine line between restatement and paraphrasing, but don’t really know where to put it.
In this case, my gut feeling (WARNING: unjustified conclusion about to follow) is that is has something to do with the fact that these terms are being removed their original context (a narrative fiction) and placed in a non-narrative work.