On my way home from Scotland, I read a detective novel called Trouble Brewing (great fun) and a history of The Johnstown Flood. Both were gifts from friends attending the Harry Potter conference at St. Andrews and they were a great distraction from the madness of flying 5,000 miles – at great altitude – in a pressurized steel tube – over endless ocean – at night! Really, flying on broomsticks at midnight with Mad-Eye Moody or on Thestrals with friends traveling to rescue Sirius are arguably safer and more rational choices (if I’m not sure I’d enjoy the trans-Atlantic version of those options). I was glad and grateful to have the reading I did, consequently, to divert my attention from the power of any turbulence able to shake a bird the size of the one I was in.
I had all but stopped work on all projects in the weeks leading up to the St. Andrews conference, so I arrived home to the reality of an overflowing inbox and too many to-do items requiring my focus and attention in six directions simultaneously. As I did on the plane, I chose to do the brave thing, of course, by despairing of even making a good beginning and sat down to read. Here I read an intriguing bit of Harry Potter fan fiction that a writer calling himself ‘Willard Binns’ (Prof Binns?) has started to sell online at his website and at Amazon.co.uk.
It’s called In Defence of the Dark Arts: Lord Voldemort Reveals the Truth Behind the Harry Potter Stories and I think it’s worth reading and talking about for at least three reasons.
(1) As the website name — www.voldemort-the-real-hero.com — suggests, In Defence of the Dark Arts is a sympathetic treatment of the Dark Lord. In fact, it is entirely Lord Voldy’s perspective because it is the reporting of an interview the author was granted with Sir Thomas Riddle, Jr., at his club in London between the events of Order of the Phoenix and Deathly Hallows. Now as Joyce Odell, the Red Hen, said when I spoke with her about the project, “Playing ‘sympathy for the devil’ is a long-standing fandom trope. Not just Potter fandom, either.”
Here is how ‘Binns’ explains the book at his website’s ‘What’s It All About?’ page:
Lord Voldemort explains how and why he tried to save the terminally dysfunctional world of magic by modernising it in the face of violent opposition from the corrupt, manipulative and reactionary Albus Dumbledore –
There are three generous sample chapters there, too, which should give you more than a taste or glimmer of what the author is after.
The first point I find engaging in this ‘world turned inside out’ re-telling is that the author asserts he is free of copyright restriction because Defence is a work of literary criticism rather than fan fiction. See this page ‘Vital Legal Stuff’ for his explanation of that distinction and what he thinks is evidence of the copyright holders accepting his claim.
I don’t doubt that most of us, if we had received the letter this author did, would have taken it as a generic rejection slip rather than an invitation to publish elsewhere. But the website is still up and Binns is still in business, so this bears a closer look.
Is it a critical work or an imaginative one that draws all its power from the original work of Ms. Rowling?
The easy answer is the latter but Defence is a significant re-imagining of the Hogwarts Saga, which re-imagining is a substantive criticism of the work. Think of Jane Eyre and Wide Sargasso Sea (1939). Eyre is the definitive classic and Sargasso Sea a stunning re-telling of that story from the perspective of the Jamaican wife, the ‘Mad Woman in the attic.’ Sea was not a copyright violation because at the time of its publication Eyre had long since belonged to the public domain; it’s exposure of the blind spots, prejudices, and colonial metanarrative in the original imagining, however, I think is clearly a ‘literary criticism’ of a kind that justifies its remarkable re-imagining of the Bronte masterpiece as ‘fair use’ understood expansively.
It is criticism less “of the literature” than “by means of literature,” something like “literary response,” and, because of the much greater reader engagement with this kind of criticism, I’d have to admit it is necessarily more successful than almost anything written in the academic, objective perspective. Most of that, of course, is hard as asphalt and seldom as illuminating as pavement.
(2) Is Defence a critical work, though, in relation to Harry Potter the way Sargasso Sea is to Jane Eyre? If I were Binns’ defense attorney (barrister?), I’d argue this line.
First, the author of the Harry Potter novels is a political liberal, whose generous donations to the Labour Party and public support of progressive causes speak for themselves. These beliefs are imbedded in her work in the Fabian Socialist positions of Albus Dumbledore and the cartoon representations of Tory figures such as Margaret Thatcher and Tony Blair (see Travis Prinzi’s Harry Potter and Imagination for the full exegesis of this Fabian linkage, most evident in the names of the original members of the Order of the Phoenix and Dumbledore’s patient and liberal policies of change by evolution).
Second, this being the case, the black hats of the Hogwarts Saga, Lord Voldemort and his Death Eaters specifically and Slytherin House in general are depicted as power holders, usually of greater wealth than the white hat wearers, who are the bigoted points of resistance to social progress. This can be read as a cartoon of recent history drawn from the peculiar bias of a very liberal writer.
Third, history has not been kind in its estimation of the Fabian Socialists; their embrace of communism as their clandestine goal and their self-understanding as something like stealth fighters or wolves-in-sheep’s-clothing in the battle for progressive goals has, in the light (?) of the 20th Century communist slaughterhouses in Russia, China, and Indochina and statist bankruptcies in Europe, made them seem less enlightened comrades of the working man than ‘fellow travelers,’ traitors, and dupes.
Fourth, a re-imagining of Ms. Rowling’s work, then, that reveals its liberal bias and which paints the Dark Lord as a conservative messiah working against all odds to rescue the magical people from their individualist self-importance and medieval triumphalism, must be thought of less as ‘infringement of copyright’ than dynamic ‘fair use.’ Despite Defence’s dependence on Ms. Rowling’s sub-creation and all its details and many characters, it is a work in critical response to rather than an exploitative extension of the original work.
Fifth, in point of law, “the effect of the use upon the potential market for, or value of, the copyrighted work” is negligible, the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” is insignificant relative to the value of the critique being offered, and the for profit “purpose and character” of the work is similarly unimportant in comparison with its educational value.
The work, consequently, is evidently a legal ‘fair use’ of Ms. Rowling’s copyrighted material. This is not even to enter the discussion of the holes in world creation that Ms. Rowling neglects and Binns fills thoughtfully or the story interior discrepancies that Biins reveals and corrects. All of which are fascinating and worth the price of admission.
I haven’t run these five points by any copyright lawyers, of course, and won’t be doing that. I think, as you must, that my case has more holes in it than a screen door, any one of which holes would be large enough to herd cats through. Which brings me to my third point –
(3) So where is Warner Brothers-Scholastic-Bloomsbury and the plethora of legal counsel they have used to badger and police fandom from the dawn of the millenium? My constant thought while reading the fun and world-turned-upside-down re-imagining in Defence of the Dark Arts — with ‘Dark Arts,’ I think, being a euphemism for the ‘dismal science’ of Smith-Friedman economics — was “When will the Franchise Brown Shirts knock down Prof Binns’ hut and carry him to Azkaban?” I’ve checked his web site several times the last week and his Amazon.co.uk Kindle book page is up and he is still selling books.
Have the heavies gone soft?
I don’t know, of course, and I have no plans to be writing ‘literate literary criticism’ as Prof Binns has, as much as I enjoyed it (despite its several faults; see below). My tentative answer to the “Gone Soft?” question as I watch Binns do his high wire act over the copyright Grand Canyon is “Yes and No.”
The “No” part of this is that Ms. Rowling’s representative goons are still bullying folks around the world as recklessly and needlessly as they have for more than a decade. If you doubt that or live in the Fandom bubble that is all fantasy Katie the Prefect magic, read the story of the Israeli translator and his experience with Warner Brothers as 800 Pound Gorilla. No, I don’t think the heavy hand of the bullies has gone soft.
But I have to think that a review of the Copyright Infringement Suits history suggests that there has been a serious change of the status quo before and after the Rowling v. RDR court case.
Before Ms. Rowling and company went after the publishers of Steve Vander Ark’s Harry Potter Lexicon, The Book, you never would have thought to publish a piece of fan fiction and make money at it. After said trial and publicity debacle — in which Ms. Rowling was pilloried by her literary peers as no less than a litigious witch (well, rhymes with witch) — G. Norman Lippert has published two books online featuring Harry’s son James in adventures at Hogwarts, supposedly with Ms. Rowling’s blessing.
And now Willard Binns is walking the streets without fear that King Kong WB is going to squish him like a bug.
I think, if there is a pattern here, that there are two explanations for it, each equally credible.
The first is that Joane Rowling woke up soon after filing the RDR suit and said to herself, “Honey, you need to chill.” She wasn’t making any friends by tracking down every one who could possibly be considered a threat to her copyright — and she wasn’t looking to lose any money (at least relative to the gazillions she’s made) by stepping back and calling off her dogs. And you won’t be given the ‘Freedom of London‘ if folks you think you’re a self-important nasty.
Running down every roach makes the roaches famous and the famous author look silly.
The other possibility is that the judge in NYC told Warner Brothers a not insignificant point of copyright law: the only way to lose copyright protection is by overzealous prosecution of anybody talking about or using your stuff. In other words, keep this up and one day a judge is going to say “Enough! You’ve gone too far. Everybody now can publish Hogwarts stories and open Harry Potter theme parks and film Albus Severus Potter teevee shows.”
And that advice meant the 800 pound gorilla still beats up everybody unfortunate enough to have to work with him (her?), but independent books? “You go right ahead and write and publish whatever you like.”
Just sayin.’ Either way, it looks like there’s a wide open market for fan fiction here, especially on Kindle. Please let me know if those waters have already been tested by authors besides Prof Binns!
Before I open the door to comments, I should note that my quick reading of Defence of the Dark Arts revealed a few substantial canon errors and intertext inconsistencies, all of which I shared with the author. In brief, I’m not offering this as a great book or Rowling-esque experience. I’m not even sure it wasn’t written as online fan fiction during the great wait for Deathly Hallows. But I enjoyed it very much and I recommend it — if only to continue the conversation I started above about the possibility of a ‘literate literary criticism’ or ‘fair use via imaginative re-imagining.’
[The author just wrote me with more about his book and his contact with the franchise, which I do not think I can share. I hope very much he will share what he thinks prudent below.]
As always, I covet your comments and corrections!