Keith Hawk (KH) John Granger (JG) Heidi Tandy (HT) Audience Member (AM)
[Show music begins]
Eric: Hey! Josée! Wait up!
Josée: Oh hi, Eric! I'm sorry, I really can't talk right now. I'm running late.
Eric: Late? Late for what?
Josée: Oh, it's because I have to go meet Keith and John Granger. I'm actually going to listen to a Harry Potter literature lesson at MuggleNet Academia.
Eric: Oh cool, that sounds awesome. Can I come with?
Josée: Yes, of course you can. Just come with me.
Eric: Okay. Let's go!
[Show music continues]
KH: All right, welcome to MuggleNet Academia! This is Lesson 6. We are going to be discussing here live at Ascendio! How about it, guys?
KH: Is everybody having a good time?
KH: Who was not at the park last night?
KH: Mr. Keith Cardin was not at the park, that's right. Why? Because he's busy getting myHogwarts ready, which will launch later today. I am excited.
KH: Anybody else? Who was it their first time at the park? Wow, a lot of you! What did you guys think?
AM: I cried.
KH: Yeah, I kind of had tears myself. Why don't you come up here for a minute? What's your name?
KH: Okay. Where are you from, Eileen?
KH: Phoenix, Arizona! Welcome.
AM: Thank you.
KH: What was your favorite part of the wizarding park?
AM: Just getting to walk through Hogsmeade was pretty boss. It was very immersive and it was very emotional. Stuff I've been reading about and seeing in films for ten years was actually there. It was pretty cool.
KH: I'm glad you enjoyed it. Amanda!
KH: Tell me where you are from, Amanda.
AM: I'm from Melbourne, Australia.
KH: Australia! Wow!
KH: Congratulations, welcome to the real world.
KH: Now, what was your favorite part? Besides hanging out with me.
AM: The shopping. Oh my gosh, so much shopping! I'm worried about my luggage on the way home, but it had to be done. I wasn't holding back.
KH: Now, would you say, out of all the rides, Forbidden Journey was more or less than you expected?
AM: It was more than I was expecting. I'd heard so many things about it, but just the way it moved about and all the... yeah, it was amazing. Far more than I expected.
KH: Great. Well, welcome over. John, you were at the park last night. You had a talk at the park. How did that go for you?
JG: It's the first time I've talked at the Three Broomsticks. That was a gig! Ten-thirty at night, to talk to... what, twenty friends? How many of us were there? Maybe thirty. And it was supposed to be a discussion, but instead I launched into a tirade about the ten things you didn't know about Harry Potter and went through each one of the books. Maybe it was the environment, Kathy?
AM: It was surreal to be talking about the books and be on the patio of the Three Broomsticks. And just looking around, going, "Is this really happening?"
JG: People in costume inside, obviously the three-dimensional Hogwarts. And it was important, Keith, because we all came there because we'd already been there, in our hearts, really. So, to see it externally, where we had been internally, was... and in fellowship with other people that had been there and experienced this in a much greater place, really, in our hearts, than this external three dimensions. That was a riot. Those of us who really love these books this much that we've come this far to be together and to experience this place, it was a wonderful thing. And the person responsible for that is with us today.
KH: Why don't you introduce her?
JG: Heidi, I don't even know your last name!
KH: Tandy. Heidi Tandy.
JG: Anyway, Heidi Tandy is with Gwendolyn Grace, Lee Hillman, and many, many others, who I'm not going to even try to name, has been the engine, the genius, the grace behind Harry Potter educational fan-ons since 2002 when they started to organize Nimbus 2003, which was also in Orlando at another kingdom which will not be named. But I want to talk about this. Forget MuggleNet Academia, we're just going to talk about the "Heidi Praise Show" or whatever - I'm talking about Merlin's circle this afternoon - but a preview of that, for those of you who won't be there, that what we see in Twilight fandom and Hunger Games fandom is what Harry Potter fandom very likely would have become, except for HPEF. You see a movie driven, sensorial, celebrity focused fandom that has very little to do with the literary experience.
Now, there's plenty of stuff here about the films at HPEF stuff - and the wrock and the creative aspects of these things - but speaking as the serious reader kind of guy, Keith, what has been the great contribution of HPEF and what sets Harry Potter fandom apart, really, from all the other fandoms is the focus on the books and the experience that we have as we read those texts. As we're alive with Harry's adventures and experience them ourselves, that's been the focus of all the conversations here about why we love these books. What is it about these stories that really engage us? And without this forum, believe me, we would not have these relationships that we have with other readers, we wouldn't have the profound relationships we have with the text either. So, this contribution... and in fact, this is the last HPEF fan... they're saying it's the last one. I'm hoping this is sort of like The Rolling Stone's last concert which we've been having for the last 45 years or whatever.
JG: I'm hoping this is not the last one, but if it is then all of us out there in the listening audience, as well as those here, owe Heidi Tandy and company a [unintelligible] because this has been ten years of their lives that they've really given to this project and it's given our lives an extra dimension, an extra experience, besides these books that we love. So, Heidi, before we even begin the whole thing, thank you so much for everything you've been doing.
KH: Let's hear it for Heidi!
KH: So, I assume everybody is having a really good time here, right? And it's only just begun.
JG: That's right.
KH: We have so much more to go through.
KH: All right, let's get on with the show. We are going to be discussing something that is pretty near and dear to a lot of people's hearts. How many people have ever read a Harry Potter book?
KH: Wow! All of you! That's amazing. Now, who wrote that book?
KH: The queen, JK Rowling, that's right. Now, when you look at what JK Rowling has done, can anybody name a spell? Just shout them out.
KH:Accio, Alohomora, Tergeo, Lumos - okay.
KH: I'm sorry?
KH:Evanesco, Avada Kedavra. Now, let me ask you a question: Before the Harry Potter books came out, did you guys ever hear these words before?
KH: All of them?
AM: Some of them.
KH: Right. Some of them she invented, correct? How about places? Hogsmeade, Hogwarts, Grimmauld Place, okay? Things that didn't exist prior to these books. You have names of people, okay? Now, everybody knows Hermione from Shakespeare and all that stuff. But we have Sirius Black, the way it's spelled, Peter Pettigrew - John's favorite character, right?
KH: Small... yeah, we'll go there. But anyway, we have a whole bunch of stuff that she invented in these books. However, how many people here have read or write fan fiction? Okay, I see a lot of hands. Read or write? Amanda?
AM: I've read.
KH: Read. Eric?
AM: My hand was not up.
KH: It wasn't? I saw your hand up.
AM: No, no.
KH: You've read.
KH: Yeah. Anybody here write fan fiction? Lynn, you write fan fiction? Very good. You write fan fiction as well. Okay, good. We have a couple of people here who write fan fiction. Heidi is a big writer of fan fiction. Hmm. Okay, this is going to get very interesting. Do you believe that when you take the world of JK Rowling and... in your writings of fan fiction or readings of fan fiction, and you hear things like Hogwarts and Hogsmeade and all that in this fan fiction stories, do you believe that you are breaking copyright law? Or is it fair use?
AM: Fair use. It depends on what you do. If you're trying... sorry.
KH: Come on up.
JG: Introduce yourself.
AM: I'm Melissa Erin. I'm also known as MooneyProf in some places. The rules governing fair use - of course, fair use involves... it's not a right, it is a legally defensible position. And it has to do with the amount borrowed, is it a transformative work and the ways in which it threatens any kind of commercial distribution of the work. Fan fiction that is written to be shared among people, that shows due respect, that doesn't use a large amount of it, that is a parody - it probably, probably falls within fair use. When it gets to the point where somebody writes an extensive fan fiction, then changes all the names and publishes it for millions of dollars, I don't think that's fair use anymore.
HT: Except that it is.
KH: And that's the discussion right here, is when is it and when is it not fair use versus copyright. Heidi, give me your background on this.
HT: Well, I'm actually an intellectual property attorney. I've been doing copyright and trademark law for more years than I'm willing to admit on camera. But one of the reasons... when I started in the Harry Potter fandom about twelve years ago, people started saying, "Oh, you have to read this story called Paradigm of Uncertainty. It's fan fiction." I was vaguely familiar with the concept of fan fiction but I had never read any before. So, I read this story and everybody was... everybody who I was friends with on Harry Potter for Grown Ups was writing fan fiction at that point. People were talking about it in chatrooms, et cetera. And I was like, "Okay, this sounds great, but I don't think I'm going to feel comfortable writing this or reviewing it under my real name," which I used - still do - "until I know whether or not I'm comfortable with how this comports with copyright and trademark law." And I did a little bit of research, read Rebecca Tushnet's article, read a couple of things from Henry Jenkins, and felt, "Okay, the law is slightly squishy and that there is nothing specifically directly on point. But because of a number of cases that you can argue by analogy, I feel comfortable enough doing this and putting my real name on it and being out there as somebody who is both an attorney and comfortable with the concept of fan fiction." I very early on started getting flamed for this, attacked for this, for a lot of different reasons. People thought that I was encouraging the mainstreaming of fandom. Oh my gosh, look around you!
HT: Look in The Wall Street Journal. Look on the cover of Time Magazine. Look at movies and television and pretty much the culture at every single major multinational corporation that's in the entertainment industry these days. There's nothing we can do to put that cat back in the bag. But back in 2001/2002, there was a lot of question as to whether or not... I mean, people were still arguing about whether the Internet needed a different kind of copyright law than what existed for every other type of work. So, at that point, there started to become wider discussions. We talked about it at a panel at Nimbus, we've talked about it at panels at every single HPEF event since, as to what the parameters are for fair use. And I know Melissa's views on this subject and I certainly respect them, but from the perspective of something being a transformative work - which means that it takes the original content and transforms it into something that is entirely other. Even if there is a commercial aspect to it, the number of dollars that it makes in the end isn't quite as relevant as what it was created to do. And if it was created to transform the original property and has created something new out of it, then at least in the United States - this does not apply in any other country, certainly not Australia - then it falls under the ambit of fair use.
KH: Well, let me ask you a question. Now, somebody writes a piece of fan fiction and they put it up on a website. We have our own. We have MuggleNet Fan Fiction. We have about 40,000 pieces of fan fiction. But when somebody puts it up on the site, the story is not necessarily making money, correct? However...
HT: Well, it is.
KH: ...the website is making money on advertising.
KH: So, is that in essence breaking the law through the fair use?
HT: Well, it's a funny thing to ask because back in 2001 and 2002 and 2000, there was a lot of question as to whether or not having ads on a site or being a - blast from the past - GeoCities website, which had ads where the money was going to GeoCities, would constitute commercial use of somebody else's copyrighted or trademarked work for commercial purposes to somebody else. In other words, the money was going somewhere, even if it wasn't necessarily going to the writer. And randomly in May - April and May of 2002 - the New York Times decided that they wanted to do an article about the three year... well, we didn't know it was going to be three years yet, but the wait for at least another year, oh my gosh, for the next Harry Potter book. So, they called me up. I spoke on behalf of Fiction Alley and it ended up on the front page of the New York Times the first Sunday of May in 2002. And people screamed. They were like, "You've told powers that be about us. We're all going to be shut down. Woe is us. Oh my God." Ten years later, no, we haven't been shut down. Rock on, Warner Bros. You're awesome. Because on Monday morning, I got a call from Warner Bros. and I freaked out. And I was like, "Deep breath. We're going to speak now. Okay." And they said, "Hi. We saw the article in the New York Times. You guys sound fantastic. Would you like to be an associate of the new store that's opening up next month." And we said, "Ehh?"
HT: And they said, "Yeah, it's going to be opening in early June." We said, "Okay." And then I sent an email the next day and said, "By the way, if you want us to be an associate, does that mean that we can become Amazon associates too and maybe make a little money to cover our server fees so it's not coming from all of our own pockets, please? Because this is really expensive. We have 10,000 stories." And they said, "Oh, sure." And we said, "You don't consider that commercial?" They said, "No." So, we had our answer. Warner Bros. did not consider advertisements or associateships that were de minimis specifically to cover the cost of service fees to be considered commercial. We only have emails. There's no such contract or anything like that. But after ten years, there's a lot of defenses that would cover this kind of a situation.
KH: But there are authors out there who are strictly against writing fan fiction. Anne Rice made a big case with it with the Vampire... what is it?
HT: Vampire... yeah.
KH: The Interview with the Vampire and all those stories. I mean, she made a big issue about taking Fanfiction.net, "Take that site down. There is no fan fiction allowed on this series." I mean, there's other authors out there. There's...
KH: Who is it?
HT: No, she backed off.
AM: She did back off.
HT: She did back off.
KH: Who was that?
AM and HT: Anne McCaffrey.
KH: Anne McCaffrey, yup. Robin Hobb, George Martin, Robin McKinley...
AM:[unintelligible] ...Anne Rice just backed off.
KH: Yeah, because...
HT: Because she wrote Bible fanfic.
KH: JK Rowling, I think... I think JK Rowling took the understanding of, "Hey, people like my stories. They can write decent fan fiction stories about the world as long as they don't make a serious amount of money on this." But what she doesn't like - and she specifically said this - she doesn't like slash fan fiction.
HT: No, she didn't. No, she never...
KH: Who here likes slash fan fiction?
HT: Sorry, sorry, I need to interrupt. She never said that.
KH: She said she doesn't like it.
KH: She didn't say she was opposed to it. She said she doesn't like it.
HT: They have never actually said that. They said that they had issues with the erotica, but they were speaking about all of the erotica.
KH: Okay. Well...
HT: And this was 2002.
KH: ...I call that slash.
HT: You can take this one.
HT: Go for it.
AM: All right. I don't even write slash.
KH: We're going to have Melissa give her views and then I want to hear from Judge Morris, too.
AM: Slash originally comes from the Star Trek fandom, K/S or Kirk/Spock. It is the romantic joining of two male characters who may most likely not have been joined in canon. It is not necessarily pornographic or heavily erotic. It doesn't even have to involve a kiss. So, slash is not the same as porn, and porn is not the same as slash. Just to clarify. And I think the issue really has had to do with overtly sexual things and having them some place a child might run across, which I think is completely reasonable.
HT: And actually, what Warner Bros. asked a number of sites to do was become "un-Google-able" with the actual content. In other words, your main page, your summary page, all of that was absolutely able to be "Google-able", but they didn't want people to be Google-ing "Harry Potter" and coming up with something - I think the word was "untoward" - on the first page of their Google search results. And then Dan Radcliffe announced that he was going to do Equus and they never said anything since.
JG: Please, judge.
KH: We are privileged to have Judge Karen Morris. If any of you heard one of our podcasts on law, this is Judge Karen Morris who was our guest on that show. What's your viewpoints on fan fiction and their fair use, and the four points that go into fair use?
AM: I think that Heidi, who is a copyright attorney, explained it quite well. I would say that... it's surprising to me that some authors try and squash the fan fiction. It seems like such a great way to encourage fandom and to fan the flames of interest in the storyline, so I'm surprised that some authors take that view. But I believe if you are taking a limited amount of material and moving it forward, bringing something new and creative to the work, that you have a great argument that you're in fair use land.
KH: Thank you.
JG: Thank you, judge. Here's a sort of off-the-wall question and probably too detailed: There's been a movement - if you go to my website, Hogwarts Professor, and you... project more, they say.
JG: Speaking to the microphone. It's an ice cream cone. All right. If you go to Hogwarts Professor, I was recently sent a novel that's been published in the United Kingdom - and then on Amazon in the United States and Kindle-ized, et cetera - that's about, essentially, the Dark Lord being a good guy. And his view on the entire series is that Rowling has turned this thing entirely upside down and that Dumbledore is this kind of bizarre communist socialist that's masquerading.
JG: And it's a fascinating read, it's really very well done.
KH: Well, there were people who also agreed that Hitler was doing the right thing.
JG: Well, whatever.
HT: We're not going to fall in the conversation about Hitler.
JG: We're not going there. Anyway, so it's fan fiction and it is brilliantly concede, at least. He went to... he claims that he went to Bloomsbury, Scholastic, Warner Bros. and said, "Can I publish this for cash? Can I print this for people to purchase for me to make money?" And he says that he got their assent. Now, this is obviously a big jump. And he's not the first person that this has happened to, and we're seeing sort of a leakage. Now, there's three or four possibilities. The first two that come to my mind is that this is a post Vander Ark experience, that their experience persuing copyright... now, that wasn't fan fiction, obviously, but the confrontation they had about copyright and the black eyes that they took from it, in the fandom and especially in the writing community, for having so zealously persued the copyright thing against Steve Vander Ark and the Lexicon, was that they basically... I mean, the only way... I don't know if you know this, and correct me if I'm wrong here, Heidi. The only way you can lose copyright is if you overpursue copyright protection, and then they can resend that.
HT: Not exactly. I mean, there are other ways you can say this work is no longer protected by copyright, but separate and apart from that. Even overprotecting will not necessarily result in your losing your work ownership. It's not that kind of a penalty. But from the perspective of the part of fandom that I frequently participate in, there was a lot of concern during the Vander Ark litigation, that the ruling from the court would be broad enough to bar fanfic. And while the situation was technically lost by RDR Books because they were told they had to change the content, the way the judge ruled was very, very specific. They didn't have to say, "Limit it to fifty words about every single character or entity." They just were not allowed to use extensive pieces from the schoolbooks or the entire Sorting Hat song, which is very different from saying everything has to be capped at fifty words. So, it gave actually a lot of support to the idea that you can make some commercial use of fan-created content about something that is owned by a third party. But, because it's just a lower court ruling and there were no appeals because everybody ended up settling without having to go to an appeal situation, it doesn't actually mean that it's law anywhere, not even in New York.
JG: Wow. Thank you, Heidi. It's wonderful to have an expert here. What do you think of the idea... and this has already been brought up, that not only were they concerned about the publicity and the legal ramifications of copyright, but that they've just finally bought into the thing that fan fiction builds the franchise. This is not something which is robbing from them but which is fortifying the idea of shared text, that all of us who have engaged and loved these books are experiencing them, are co-creating inside this world, fosters that shared text we knew that we all have been part of. And that why resist that when instead this is actually fostering everything. Do you think that's a larger part of this?
HT: I think that it is, and I also think that now it is a closed canon and she has moved on to other content, the whole situation has changed. I mean, MuggleNet certainly has published some fantastic books in the lead-up to the publishing of Deathly Hallows that were discussing and trying to predict and being spot on with lots of things. But when questions were asked of Scholastic and Bloomsbury back in, say 2005, 2006, would it be possible to publish a book that addressed theories about characters like "Did Snape love Lily?" in story form, in narrative form, rather than in essay and analytical form, and then sell that? People were told that you could obviously write those stories, obviously compile them, and this was before e-books, but you couldn't print and sell them. So, because of that, those sorts of compilations were not edited and put together and distributed on a wide scale. And I honestly think that the fandom and the wider world is the smaller for it because we all know about these things because we've either been participatory or we've been on that particular portion of the Internet that mentions it and things like that. But having distribution in a bookstore, having distribution on Amazon, gives information to the wider world who may not already be tapped into it. Everyone has to find their way into fandom somewhere. And it's taken a while, and fan fiction obviously now has a lot of mainstream name recognition, but I think had something like that happened in 2005, 2006, it possibly would have happened earlier differently and not tied to a certain vampire-inspired erotica book.
JG: Not going to go there.
JG: I'm going to shift the conversation again, Heidi. Lev Grossman, yesterday, at his reading of The Magician King talked about basically a distinction between copyright law, which is on the books, and copyright law as it's observed in the real world. When he wrote The Magicians, the book was held up for six months after it was first published in the United Kingdom because of fears of litigation from the CS Lewis estate, and in some respect from JK Rowling and Bloomsbury/Scholastic/Warner Bros. And it wasn't that they felt that... they were completely confident that the white stag that he had near the end of that book was not going to be something that CS Lewis could claim - his copyright holders - could claim that he had a copyright hold on the white stag, or that Rowling could say, "Hey, I've got a white stag, too, and that's mine. You're stealing this." But they were afraid of the big gun in the room with the larger wallet. They did not want expensive litigation, so he had to rewrite large portions. He's grateful for it now because he said the book is a better book for the experience, but it was fear of copyright litigation rather than copyright law. So, there's a de facto and a du jour copyright law. How does that affect... I mean, does that freeze fan fiction in some respects and the distribution you were talking about?
HT: I think it definitely impacts the distribution. I mean, now ebooks exist. There are sites like an archive of our own, where once you've uploaded your story on there it can be immediately downloaded in Nook or ebook or Kindle format, and it's very easy to access it. But you have to know where to go to find it. And yes, people are now starting to put ebooks of fan fiction up on Amazon, and as long as they are not charging for it there's no problem. There are sites like Wattpad, who specifically exist to host stories, whether they are fiction, non-fiction, original, fanfic based, and have it created in various ebook and pdf formats, which is a fantastic way for more and more people to know that this is either something to read or something to write or a way to address and express their creativity. But it's... like I said, it's taken a while to get to that point, and there is still, as John was saying, the concern that even if you win in court, it's going to cost you four hundred thousand, seven hundred and fifty thousand, four million dollars to get to that point because while attorneys would love to be able to work for free on every case that they believe is meritorious, that's not logically possible. So... and there's court fees and cost to just duplicate things. And once you start a litigation, even if you're in the right, there's a really strong chance that it's just going to cost so much that you drop out before it costs... well, before it makes you sell your house and your car and et cetera, et cetera. So, people don't take that step. I could theoretically... well, okay, hypothetically I could have taken the step of putting together the collection of stories that addressed Harry Potter theories in 2005/2006 and taken the risk that Warner Bros. or Scholastic or Bloomsbury would have been irked about it, and that was not a risk that people wanted to take at that point. And it might be a risk that would have been worth taking now and just sort of doing it as an archival document. So yes, there is definitely a chilling impact from that sort of thing and you never know what we're missing.
KH: When discussing lawsuits, I want to go a little bit further and say JK Rowling has sued for fan fiction work. It was in Russia. Now, Russia has more lenient laws on fan fiction than we do over here, certainly in the UK as well, and... what was the guy's name? Dmitri Yemets.
KH: Right, the Tanya Grotter book. That's correct. And she was definitely opposed to that because he basically did a cultural response to Harry Potter. Now, Terry Pratchett, on the other hand, over in England loves the fan fiction. He says just don't let me trip over it when I see it. So, can you tell us a little bit about what's out there in the rest of the world as far as copyrights? And why did JK Rowling go after Dmitri versus why do some other... leaves it go in some other countries?
HT: My understanding is that... the Tanya Grotter situation was Tanya Grotter and Her Magical Flying Violin and somebody, an attorney whose name I'm drawing a blank on right now, actually wrote a paper on it and presented it at Nimbus back in 2003, and you can find extensive excerpts of the Tanya Grotter book in the Nimbus compilation which you can still purchase on Amazon.
KH: Plug. [laughs]
HT: We don't get any money from it, but it's nice that it's there. So, I have actually read extensive translated versions of Tanya Grotter when I was putting together the edits of the paper for the compilation because we did not want to use as extensive selections as he had included in it. Basically, my understanding was that that situation was something that was started by the Russian publishers, who wanted to just establish their control over the situation rather than really something that they could legitimately claim under Russian copyright law. Also, the trademark laws there had changed extensively in the last twelve or thirteen years, so that's definitely been an impact. I'm not sure that that kind of case even could have been brought these days. And the interesting thing about it was it was happening at the same time as the... oh, I'm drawing a blank. Who was the woman with the Muggles? Does anyone remember? The one who falsified the evidence? Her. Okay. Her, who falsified the evidence that said that she created the term "Muggles" for her storybook. We all remember this from 2001/2002? Yeah.
AM:Larry Potter and His Best Friend Lilly.
HT: Yeah, Larry Potter and His Best Friend Lilly. Thank you! And they brought a claim against JK Rowling and against Scholastic here in the states - I think up in New York, but it might have been in Pennsylvania - saying that it was infringing on her trademarks and it was infringing on her copyrights. And that was obviously... once the information came out that she falsified evidence, that was obviously a loser situation. But it was all happening at the same time and I think that they wanted to show that they couldn't be - the right word isn't "pushed around" - that they had to establish ownership of these terms and of these words in those specific circumstances. But, can I just hop back very briefly to something that John was saying earlier?
KH: Absolutely, it's your show.
HT: Well, no it's your show and you're letting me borrow it.
KH: No, this is your show. [laughs]
HT: Thank you. One of the things that John was saying before about fan fiction and Warner Bros. and JK Rowling and the international publishers being more or less okay with so many things these days because it helps the fandom, it helps keep the fans interested, it helps keep some vibrancy, keeps people buying the books and buying the discussions and things like that, coming to the Wizarding World and buying lots of things in the shops, which is all fantastic in its own ways. But, Warner Bros. I think has done more than many other properties - small possible exception for Star Wars who try to control a lot - in allowing things like A Very Potter Musical and the International Quidditch Association and all of the awesomeness that has come out in so many different areas. We are not just a fandom that has fan fiction and fan art. We're a fandom that has an entire fan media "unconglomerated" conglomerate and people build off each other and feed off each other. And there's a musical going on right across the hallway right now and there's parodies going on down the hall and there's going to be karaoke and so many different things that people do that go beyond fan fiction and cosplay, which are fantastic but there's so much... there's an entire world of Potter and a lot of that goes, credit-wise, to the fans, but a lot of it goes to the corporations who theoretically could have tried to stop it. They didn't have the legal grounds to do so and they knew that they couldn't stop it, and they, I think, took the right and sensible approach in being fantastic.
KH: Well, not only that but they really do support it. I mean, the IQA for the Quidditch Association is absolutely growing at a phenomenal rate. Late last night, in case you haven't heard, the Quidditch World Cup is going to be right here in Florida, next April I believe. It's wonderful!
KH: Not only that, but then they were just at the Olympics! They just had the summer games. We had five nations. USA took it all, but UK and Australia and France and Canada all competed in the Olympics as an exhibition for the torch ceremony. So, if you don't think that JK Rowling's world is growing exponentially, even though the books are done, the movies are done, this fandom is not done at all, right? I mean, we're going to keep on going, isn't that correct?
KH: So, taking everything that JK Rowling has put out there... and she is fully in support of it. Absolutely one hundred percent behind this. And she just says, "Wow, this is amazing." The fandom is going in different directions. I mean, I don't think she ever envisioned a Muggle Quidditch match at the Olympics, okay?
KH: I don't think that was in her plans when she designed the game of Quidditch seventeen years ago. John?
HT: What do you play in Quidditch?
KH: Yeah, we have Quidditch today, don't we?
JG: I'm going to be the bad guy here. I'm going to say... we've been celebrating Warner Bros. here which makes me nervous. I mean, Warner Bros. in a way is always going to be the eight-hundred pound gorilla in the room, and if it's the nice eight-hundred pound gorilla everyone says, "Oh, isn't it a nice gorilla today?" - if you speak to the translators, if you speak to people that are associated with Warner Bros. that they can kick around - if they can without repercussions, they do as a rule. I should say for those of us who write critical things that we remember and will never forget when they told us that we could not quote more than twenty-five words at a time from any text, and that... ten years ago, I wrote a book called The Hidden Key to Harry Potter which... does anybody here remember that?
JG: Yay! And it was the first book that really tried to talk about the books as literature per se rather then a commentary on the Vidicus or something, and that... I immediately got letters from people inside fandom who were very concerned that I quoted too extensively, and this and that, and I said this is all nonsense. There is no way they can limit how much I can quote unless I'm infringing on the actual experience of the text. If I'm quoting in terms of what these books are about, their artistry and meaning, then I have almost open field. And I would love it... at that point in 2002, I had seven children at home and I wanted so badly for Warner Bros. to sue me so I could put them all on my porch, my kids, in overalls and bare feet or whatever, and say, "Christian tries to defend series and is knocked down by eight-hundred pound gorilla." But they never came after me, but I know that it chilled the conversation because when Hidden Key came out there were only five books, I think four of which were written by Richard Abanes.
HT: Oh God!
HT: I don't mean that literally!
JG: During the Potter panic, Warner Bros.'s heaviness and control - they were taking twelve-year-old girls and saying you can't have a fan site and such - that heaviness persists except now I think it's in the eight-hundred pound gorilla's best... it gets more bananas and so now it's allowing people into its cage. So, I'm not quite as sanguine as everyone is here in celebrating the franchise's support for fandom. It's now to their advantage and they... if it weren't to their advantage, I doubt they would be fostering this any more than they did in 2002. Having said that, times have changed.
KH: It's funny how you mentioned that though, John. I mean, MuggleNet.com was founded by Emerson Spartz when he was twelve years old back in 1999. Emerson's brother Dylan is here. I was just asking Dylan if he remembers the time that Emerson got the letters of "cease and desist your website right now," and all these fan sites that started popping up at that point. Some of them panicked. Others kept on ploughing through and fought the issue. Am I right about that, Dylan? He kept on going with it and basically said, "No, this is my right. I'm going to do it." This is a twelve-year-old kid getting these letters to stop and desist! Can you imagine? Warner Bros., as you said, an eight-hundred pound gorilla... I mean, this man knows the feeling right over here with the myHogwarts thing. Warner Bros. is coming down and saying, hey, what are you doing? And you have to answer your questions. But back in the beginning of this stuff with the sites, it was a scary proposition because times were now changing at this point in time. And thank goodness she didn't stop it because MuggleNet.com would not exist today, a lot of these fan fiction places would not exist, HPEF, Leaky, all the LeakyCon great conventions that are happening, and Leaky itself - there's so much that we can say thank you for not stopping us.
HT: The thing is, had they tried to stop us, even at that point, there were attorneys who were a part of fandom and within fandom, and we were ready to push back. And that's what happened in the UK when Warner Bros... actually, it wasn't even Warner Bros. When her agency went after people and started sending out those "cease and desist" letters, there were people... there were kids, twelve, thirteen, fourteen years old, and I've spoken with some of them at the time and since who said, "No, you can't make me do this. The law is not in your favor." And that was actually about the same time that I was coming into fandom and I got in touch with a couple of people. I was like, "Look, if you guys have issues, I had worked for Volunteer Lawyers for the Arts in Washington when I was in law school, I had worked with Washington Area Lawyers for the Arts, I had worked for VLA in New York and Miami, and this is something that I've always been committed to on a pro bono basis."
So, over the years, it's developed into actually a non-profit called the Organization for Transformative Works or the OTW. They are the entity, the non-profit, behind an archive of our own, behind the fan lore, fan history-ish wiki, and a lot of other fantastic projects. We actually have just testified for the second time before Congress and the Library of Congress so that we can get protection for ripping DVDs to make fan vids with, and make that an exception to the laws that basically make it illegal to rip a DVD for any purpose. And two years ago, they decided in our favor. Now, the big guns from the various corporations have come out and said, "No, there are other ways to do this. You can screencap each individual scene." That's not going to work. So, we fought against it again. Last month, people testified again in Los Angeles and in Washington, and hopefully, cross our fingers, we will continue to have the exception.
But there are attorneys around the world who are willing to step in when fans feel that they're being threatened by the corporations, and the corporations all know this. Some of their attorneys come from fandom, some of their attorneys have participated in fandom. Some of them have just come to fan cons and walked around and looked at all the really cool fan art. That was 2006. And I think because there is so much more synergy between them understanding what we're trying to do and us understanding why they want to know what's going on and why they sometimes have questions. And when we answer the questions, everything is hunky dory. They just need the information in hand. And I think that that's a reasonable approach to take because it's all well and good to say, "Oh no, we have the right to do this," but once you tell them we have the right to do this and here is exactly what we're doing and why we have the rights and the reasons to do this, then it just becomes really a communication between people who all understand where everybody else is coming from. And I think that that's to everybody's benefit.
KH: Absolutely, thank you.
KH: Now, this summer there are some other transformative works that are coming out. We have a couple of people who have, on their own, created videos regarding the sagas of Hogwarts and Harry and everything else. There's a company called Sunnymeade Films out in England. Oliver Hollingdale, I interviewed him on MuggleNet. He has The Battle of Hogwarts coming out this summer. And then The Group That Shall Not be Named, the TGTSNBN, is doing a video series right now called The Auror's Tale. We have a couple of the group in here from that. So, a lot of fandom is taking it upon themselves to create their own worlds but it all comes back down to what JK Rowling gave us. She gave us this basis on which to build on. I mean, the stories... obviously, they're awesome, they're the most incredible stories that I think many of us have ever read, otherwise we wouldn't be here if we didn't really love it. So, taking those stories and just building off it into a different world is absolutely amazing.
JG: Why does the mic always come back to John? "John has something to say!"
KH: John always has something to say!
KH: Do you want to wrap up?
JG: This is the live show, right? We have to have at least one glaring gap in the middle of the live show.
KH: Why don't we have some questions and answers from the audience? How would that be?
JG: Oh, there we go! Lisa, yay!
KH: Come on up.
JG: Lisa Bunker is here, my goodness, from Accio Quote. Everyone applaud when you say Accio Quotes!
JG: Thank you!
AM: Well, as John knows, I'm also a contributor to the Lexicon book and can talk from first hand what it's like to know that gorilla could [laughs] put your name on a document at any moment and your life would change. Part of what I'm... whenever I sign the book - because it did get published - whenever I sign the book, especially with young people, I always write, "What book will you write?" because for me, it was such an empowering... even with everything that happened, it was such an empowering experience, as a librarian, to hold a book I helped write in my own hands. So, what happens with people who have an idea for which there isn't a precedent for something new? Because one of the problems we had when we were writing the book was that the law was so squishy... [laughs] and we had bad advice, I won't go into it, but what... how does someone know, who has a new idea and doesn't want to have that kind of gorilla come down on them, what do they do?
HT: Honestly, no matter what you do, unfortunately, there's always going to be a risk just because there are people out there - I'm not going to use the word "crazy" - there are people out there who see things through their own prism and occasionally want to throw it at your head. I mean, look at JK Rowling. She created this world and she still got sued by people who wanted a little piece of the pie, and they made up reasons for why they thought that they deserved that, and convinced newspapers and convinced people to publish "their side of the story." And they had no side, but I know that that's not what you're talking about in this situation. It's just when you look at things like what some of the fan film groups are doing and when you look at what the IQA is doing, those are things that had, especially with the IQA, really never been done before. To create an entire sporting league and build it up into something... and really, when we played our very first Quidditch match at the Swan and Dolphin ballroom back at Nimbus in 2003 and Chris Dixon out in the UK came over because he had written rules for how to play a Muggle version of Quidditch... and I have spent years trying to convince people that it should be played on segways and no one listens to me.
KH: One of our staff members wants it done on horses so that you get the actual sense of flying. I was like, "Uhh no, that's called polo."
KH: And I don't think I want to collide with a horse.
HT: But I mean, those are unique things really that have never been done before in that way, and also doing things like what we did in 2001 with Fiction Alley, creating a fan fiction site that wasn't tied to a discussion site although the discussion site certainly sprung up afterwards, that was specifically focused on fan creativity. We knew that there was a chance that someone would come and tell us that we couldn't do it. The fact is, under the parameters in the United States for fair use... and also other countries. I mean, Israel has a very similar to us version. The UK is working on it but they don't have it now. So, for various reason you get the ability to argue by analogy and say because it's allowed in this sort of circumstance it can be allowed here. So, if you're allowed to do something non-commercial here then you can do something non-commercial here. Even if it's completely different type of media, or type of concept, or type of process. When you add the commercial aspect into it, that's where you either have to find loopholes or be willing to take some sort of a risk. And selling costumes or advertising that you do Dark Mark tattoos are different things that, yes, Warner Bros. could come and say, "You can't do this, it's our trademark," and you'd have to either find a way to do it or agree to whatever they're asking you to do.
JG: To Miss Bunker's point, this... and Heidi's... you have to take your chances. And you can lose big time. And that freezes a certain amount of creativity. I think that's undeniable. Those of us in the critical world remember when Warner Bros., Bloomsbury, Scholastic, came after the people who put out Harry Potter and the Ivory Tower, really the first academic collection of note, and they said Harry Potter and the Ivory Tower suggested it's another Harry Potter book. Now, again, as if fandom would... you can't get very deep into Harry Potter and the Ivory Tower and think, "Wow, where's Harry, Ron and Hermione here? We're not on Privet Drive anymore."
JG: But they really felt that was a threat to them, and so they retitled the book, they froze the publication of the book for a good period of time, and those of us in that community thought, "Oh my goodness, they're coming for me next." And it did very much restrict publishers who were willing to take on that kind of project, which was great for me because I was already published, so I was a known quantity and I could move forward. I mean, now there are close to a hundred ancillary commentary books on Harry Potter but back in the Potter panic when we most needed those commentaries from people that would know better, there were only, say, ten and that restriction required a certain courage, and those of us that went forward in that time and the publishers that supported us - it was always a "When is it going to happen? When is the gorilla going to knock on the door?" And that persists today, as Heidi said, that if you have an idea of a way that you can serve fandom, create a product that deepens someone's experience of this world that we've entered in and these books, you're rolling the dice.
HT: I know there's a couple of more questions. I just want to very briefly flash back, since we're wrapping up HPEF now, to bounce back to ten years ago last month when we started working on Nimbus. Because in May of 2002, something probably nobody else in here even knows, Paramount raided a Star Trek con, shut down the exhibition floor, and seized photographs that were prints of stills of people who had one lines - random red shirts - that said, "Random red shirts were signing in the autograph halls," and seized other "unauthorized" merchandise, and shut down the entire floor for six hours and carted loads of stuff away and said that they were going to sue. They never did, but by carting stuff away they created a major chilling effect on fan-created conventions. And as we can all see, there has been creation - pun intended - of other types of cons since then with the approval and authority of the show's producers and the other people, the powers that be. But we were creating Nimbus in that atmosphere and we wanted to create something that would not run a foul with those sorts of things since we already knew from Warner Bros. that our discussions were, they believed, under the bounds of fair use and they wouldn't stop them. They weren't stopping anything on Harry Potter For Grown Ups, even when Yahoo had ads across the top of the screen and in our emails. They weren't stopping the discussions on the comments on The Leaky Cauldron where I was an editor at that point. They weren't barring discussions on mailing lists or different kinds of groups or on Usenet. And because of that, we felt that something that focused on discussions, and focused on communication and sort of interaction and analysis would fall to this safe side of fair use.
And obviously in the years since, we've had different conversations. I remember having a conversation with the organizers, the lead team, for The Witching Hour as to whether or not we could allow Harry and the Potters to perform because they were probably fair use and it was probably either a parody or a transformative work but we weren't really sure and neither were they, and that was 2004 and 2005 that we were having this conversation. And obviously now, everything moves in its own way and its own direction, but back then that was a real serious concern. We felt comfortable enough with Warner Bros. but there were still "Are they going to raid our event because we have Harry and the Potters kidnapping Chris Rankin..." or no. Sorry, that was Draco and the Malfoys kidnapping Chris Rankin. But they didn't and they were really actually okay with it, but that's one of the reasons why HPEF was founded on these fundamental principles because we wanted to do something that was on the safe side for fair use.
AM: Thank you. My name, Tricia Lyons, and I'm a chapelin at a school and teach with Harry Potter, and I just have a question. I mean, everyone here is sort of an evangelist for Harry Potter in your own way, so I'm sure... I have been asked by many people who knew I was coming questions about copyright. So, what I've always... and I want to check this in with you. I've always had the sense that if you weren't being... whatever it is you were doing, if you weren't charging for it or even having someone advertise with it that you're not really violating... because as teachers, you walk in the classroom... I photocopied a whole page from The Velveteen Rabbit and I handed that out, or CS Lewis and just this chapter, this part about Eustace, you photocopy that and you hand that out. And what's happened is that with video is when I speak in schools or in churches, and you show up and you have your seven disc set of the Harry Potter movies and you're showing little clips to generate conversation - and of course, people have said, "Well, get a ripper. Rip all the copyrights off and it's just faster as a speaker..." and again, this is not for money. I mean, I go to a church with a group of people who want to have a conversation about predestination and the Sorting Hat, but I want to show them scenes later on, so I put to mash up this thing so it's on one DVD. I don't give it out, I don't sell it, I just put it up on the wall and there's a hundred people or one or whatever [laughs] who watches it. And again, in the back of my mind as a teacher not stating copyright law and I'm now realizing maybe we all need to have done that at some point - because I'm realizing the more people I talk to that I've been violating copyright laws since I was getting my certification. I mean, if you really want to get technical... so here's my question: Is there a rule of thumb, and is it okay that if you're teaching and it never has anything to do with money that I could rip these nine - let's just say hypothetically I had done that - and create just useable formats that I, again, don't give out, don't sell... is that the kind of thing... is it really just money is the answer, or is it, it actually matters who I'm talking to and why?
HT: If you're doing it for educational purposes and you're in the United States, then nine hundred and ninety-nine times out of a thousand, you're fine.
AM: Even the ripping of movies?
HT: Even the ripping. Because you are allowed to, under the ambit of fair use... especially because of certain protections that have been given by the copyright office. There are exceptions to the no-ripping law, and you can find the whole list of them through the Library of Congress. I think there are, like, seven at this point, and one of them does have to do with educational circumstances. And whether you're getting paid for it, whether someone paying to rent the building, there is a commercial transaction going on in absolutely everything you do. So, you can't think that, oh, because there's money involved in this... I mean, there's money involved here. We have to pay for the food so that we can have the space that makes this, arguably, a commercial event. And it has since we did our very first one. But it still falls under the ambit of fair use even... all of us are volunteers, but the hotel A/V staff isn't. Because the overriding purpose of it is not for the hotel to make money. Whatever they put in here right now they'd be making money. It's so that we can communicate the information, we can share, we can educate, we can have this discussion. So, because of that, almost every circumstance where you're doing something purely for educational purposes falls under the fair use guidelines. Where you'll find an issue is with entities like Kinko's... well, whatever they're called these days... and copying facilities because they don't want to become a party to this situation. They don't want to do... and because they do things in so much bulk and in such high volume, they don't want to run into a situation where, by copying something, they're causing a situation. So, if something is still protected by copyright, there's a lot of times where they won't do it and you may not be able to find a commercial company who's willing to rip your DVD and put it onto a flash drive for you so that you can put it on Windows Movie Maker. But if you're doing the work yourself, then at this point under current US law - and the exceptions could change in a month - you're within the zone. But that wasn't legal advice.
KH: Anything else, John? Or do we want to wrap it up?
JG: We got a question.
KH: You have a question?
AM: It's not a question. It's more of a statement. I listen to you... I just wanted to meet you and say thank you. I listen to you with Dennis Roper on his podcast, and when I found out that you was here, I tweeted him and I was like, "Oh my God, I'm going to meet John Granger!" So, he's... [laughs] so thank you!
KH: I thought she was talking to me!
JG: Before we close, before Keith goes into his big closing now, I want to go back to where we started - a little ring composition moment here - and say that what Mrs. Bunker and other people we talked about today is - what we owe to Harry Potter Educational Fanon is that they... and it's a large group of people. I mean, I talk about Gwen and Heidi more than the others because they're sort of the face of the organization, and again a large part of the genius. If they hadn't pushed the barriers of this experience, then, believe me, this fandom could very much be an entirely celebrity/film thing, and much less of the wrock, much less of the creativity that we've got... except for the fact that there was a fandom organization that allowed for this kind of forum and experience that we've had and this fellowship that we've enjoyed over the last ten years. I don't think it's really possible to overstate the debt that we owe to these people. I'm confident that this fandom doesn't exist except as a fractional and infactional thing. We have the wrockers over here and the eggheads over here and this and that. Instead, we have a collective community because of this organization that has created these meeting spaces and a surety that they're going to continue has allowed people to continue to create in the spaces inbetween them. That this organization is now closing its door, I think we are obliged - as people that have benefited from this - to acknowledge the profound debt in really the breadth of our life and our experience with text and community that we have to you. So, Heidi, thank you so much.
KH: A standing O.
KH: That was a very appropriate ending. Thank you very much. Heidi?
HT: Thank you.
KH: You're not supposed to cry on camera.
HT: I'm going to be doing this almost all of Sunday.
[Show music begins]
HT: I have a box of tissues in my room, I'm ready for it. I just wasn't ready for it now.
KH: Well, Heidi, I want to say thank you very much for being on the show. It was a great discussion.
HT: Thank you for organizing it.
KH: Hope you guys enjoyed it. Thank you for coming down to listen to MuggleNet Academia. It's going to be available on iTunes a little bit later today, and please listen to the other shows if you haven't already done so. We have some great discussions on the Harry Potter books in different realms of academia. On behalf of MuggleNet.com, my name is Keith Hawk.