Taking Liberties with Harry Potter

The Boston Globe Magazine, June 29, 2003

Taking Liberties with Harry Potter

Thousands of spinoffs of J.K. Rowling’s novels--many steamy with graphic sex--can be read on the Internet. But why is this fan fiction, often of questionable legality, allowed to flourish?

By Tracy Mayor

A teacher locks a classroom door, orders his student to disrobe, and whips his bare backside with a long leather belt. Thinking the assault is over, the schoolboy at last dares to turn his head, just in time to catch a salacious gleam in his professor’s eye. His detention, it turns out, has only begun...

It’s not the latest from the clergy scandals, and it’s not something off Pete Townshend’s hard drive, either. The student being violated is Harry Potter. The teacher is his nemesis, Professor Severus Snape. The author of this particular narrative is a 30-something mother from the Midwest.

Welcome to the world of fan fiction.

Since its June 21 debut, readers around the globe have been devouring “Harry Potter and the Order of the Phoenix,” the very long-awaited fifth book in J.K. Rowling’s blockbuster series of teenaged wizard tales. 

They might not know that a surprising number of Potter fans had already taken matters into their own hands, writing and distributing stories that put Rowling’s famous trio, Harry, Ron and Hermione—as well as every other character mentioned in her books--into situations that are often romantic, sometimes homosexual, and occasionally pornographic.

Fan fiction, or “fanfic,” didn’t start with Harry Potter or the Internet, but that combination has brought it as close as it’s ever been to the mainstream. On the way, fanfic is raising a host of legal, moral and creative questions that only promise to become more entangled as each of Rowling’s books is released (seven are planned in all).

On first read, it might seem illegal, futile, or just plain strange that people spend hours and often months writing stories and novels that appropriate another writer’s characters, plot lines and settings.

But fanfic practitioners, who cite as their antecedents everything from James Joyce’s “Ulysses” to Michael Cunningham’s “The Hours,” say their writing pays tribute to Rowling even as they uphold the same kind of populist-editing values that have brought to the culture everything from rap music sampling to “Star Wars” bootleg DVDs that leave annoying characters like Jar-Jar Binks on the cutting-room floor.

Is fan fiction part of a newly energized publican movement to put art back in the hands of the consumer class, or is it a cynical exercise in ego that rides roughshod over a living author still working to create her oeuvre? The answer depends largely upon which side of the copyright document you happen to sit.

“There’s no question that J.K. Rowling is the author of the original work, but Hogwarts [Rowling’s imaginary wizarding school] may have room for more stories than she wants to write,” says Henry Jenkins, the director of MIT’s Comparative Media Studies Program who writes frequently about fan behavior. “And she might not be the best writer for every possible story set in Hogwarts.”

Either way, fan fiction isn’t going away, far from it. There are literally thousands of Web sites dedicated to Harry Potter fan fiction. One popular destination alone, FictionAlley.org, hosts upwards of 15,000 short stories or book chapters, supports 24,500 registered users who have posted 563,000 fanfic-related messages, and receives on average more than 100 new pieces of writing every day. That’s enough to make The New Yorker’s slush pile look anemic by comparison. 

Another popular site, the entry-level FanFiction.com, houses a whopping 71,600 Potter fanfics and regularly appears in Nielsen/NetRating’s list of top “stickiest” Web sites (places where surfers spend the longest amount of continuous time). And that’s after the site’s operators kicked all the NC-17-rated material off its pages last year.

Harry slid his hand behind her back and pulled her close. He used his other hand to tip her chin up so that she was looking at him. Then, carefully and deliberately, he lowered his mouth to hers. It was a kiss like nothing Ginny had ever imagined.
“The Rebirth”--Irina

Though Charles Dickens and Lewis Carroll are among famous authors to be “fic’d,” modern fan fiction took off as a bona fide subculture in the mid-1970s and 1980s, centered first around “Star Trek,” then later on “Star Wars” and, into the ‘90s, on television shows like “Buffy the Vampire Slayer,” “The X-Files,” and “Smallville.”

Fan fiction writers are overwhelmingly women, in part because women are more likely to want to fill in gaps, resolve inconsistencies, or piece together the backstory when the original hasn’t fully satisfied, explains MIT’s Jenkins, whose 1992 book, “Textual Poachers: Television Fans and Participatory Culture,” is much quoted by fanfic writers and readers.

So if Mulder and Scully aren’t getting together fast enough on “The X-Files,” or if a network cancels a cult favorite like “Highlander,” fans take up the pen, or the keyboard, and write themselves what they want to see, or read.

For “Irina,” a 22-year-old Boston-based art history grad student, that would be romantic entanglements between Harry Potter and Ginny Weasley, his best friend’s little sister. Irina has two novel-length fanfics and a handful of shorter stories under her belt, she’s a volunteer moderator on FictionAlley.org, spends between 4 and 7 hours online a week, and doesn’t think her hobby is any more unusual than, say, the hours her boyfriend devotes to burning CDs and playing computer games. Still, she doesn’t want her real name to be used.

“Liza” is a Ph.D. candidate in classics at an Ivy League university who writes literate, lyrical fan fiction peppered with quotes from Russian poets, references to Roman philosophers, and chunks of dialogue in untranslated French. There are frequent footnotes. What Liza wants to see, and therefore what she writes, is “slash”--relationships, often sexual, sometimes graphic, between two characters of the same sex, nearly always two men. In fact, everything Liza writes is slash, and because of this, she doesn’t want to use her real name either.

Though their carefully guarded anonymity might suggest otherwise, writers and readers insist that fan fiction is just one of many perfectly valid ways of responding to pop culture. “With Harry Potter, people are always trying to figure out what’s going to happen next. Fanfic just puts that speculation into narrative form,” says Heidi Tandy, a Miami intellectual-property lawyer who has no problem using her real name online and in print.

On the surface of things, Tandy has a lot in common with J.K. Rowling. Both are 30-something working mothers who spent last fall and winter racing to finish book-length manuscripts about Harry Potter and his friends before the arrival of their second child (Rowling gave birth in late March, Tandy in May. Tandy’s first child is called Harry.)

Rowling was writing “Harry Potter and the Order of the Phoenix.” Tandy was at work on “Surfeit of Curses,” a PG-13-rated, novel-length fiction (600 manuscript pages and counting) that explores the inner life of Draco Malfoy, Harry’s schoolboy rival at Hogwarts. “Fanfic stories grow out of discussion,” says Tandy. “People said, `Draco could never be anything other than horrible,’ and I said, `Well, maybe not.’”

Like many other fanfic writers, Tandy makes is very clear that she’s not a frustrated novelist who can’t think up plots or characters on her own. And she bristles at the suggestion that fan fiction is somehow a lesser calling because it’s derivative work.

“I have heard people say that if something isn’t completely original, it’s not creative, that it’s bad bad bad,” says Tandy. “Do they mean bad like `West Side Story’?” she asks of the 1957 theatrical reworking of “Romeo and Juliet.” “Or bad like `Clueless?’” the 1995 movie based Jane Austen’s “Emma.” “Fan fiction has made me a better writer and a better reader. And you get instant feedback in two days! There’s an emotional benefit, even if it’s hard to quantify.”

Tandy was so attracted to that emotional uplift and instant feedback, two years ago she formed FictionAlley.org. Like many other fanfic sites online, FictionAlley functions like a highly organized, self-policing support group with its own rules, language, and publishing structure. “Beta” readers provide workshop-like story critiques for work in progress. Message boards and email links let readers instantly comment on stories they’ve read. Stories are rated with the same G/PG-13/R/NC-17 system used by the movies, and people take the ratings seriously.

Writers and readers maintain a strict distinction between “canon,” the original works as J.K. Rowling wrote them, and “fanon,” the embellished, alternative retelling by fans. (In canon, Draco Malfoy is evil; in fanon, Draco Malfoy can be any number of things, including a leather-pants-wearing hottie who’s after Hermione’s goods.)

“The fan community will tolerate an incredible array of interpretations, but they do have sets of rules. If you do it wrong, you’ll get flamed,” observes MIT’s Jenkins. “There’s a moral economy around what’s right and wrong.”

Cross-posting of stories—linking to one story from another Web site—isn’t done unless the original author gives permission. Plagiarism isn’t tolerated—one writer was kicked off a board for failing to fully disclose that her plot was lifted in part from an old “Buffy” episode. And, apparently without irony, most fan artwork and some fan fiction is copyrighted.

Disclaimer: I don’t own the characters.  Many thanks to J.K. Rowling, who does.

--k.t., “Stormspoken,” Potter Slash Archive

Is fan fiction legal? Probably not. But, as copyright experts and fanfic defenders alike agree, it doesn’t much matter if it is or not.

Fanfic writers, and the Web sites that post their work, always dutifully include some type of boilerplate disclaimer, often copied from another story and embellished with various personal asides, that says in essence “J.K. Rowling owns these characters” and “I’m not making any money off them.”

That’s a first step, but no guarantee of protection, in preparing a “fair use” defense should they be sued by Rowling, her agents, publishers, or by Warner Brothers Entertainment, which holds the various trademarks associated with the Harry Potter movies and merchandise. “Fair use is one of the most complex and opaque areas of law,” says Ieuan Mahony, co-chair of the intellectual property and technology group at Holland & Knight LLP in Boston. “You could spend days in court just fighting out each element [of the infringement.]”

In the United States, that’s never happened, not yet at least, because a “cease and desist” letter from an author’s lawyer to the Web site hosting the fiction is often enough to stop the writing or send it underground, according to Meredith McCardle, a graduating B.U. Law student who published a paper on the legality of fan fiction in the Spring 2003 “Boston University Journal of Science and Technology Law.”

“Ninety-nine percent of the time, the Web site is run by some teenager who has no money and would never think of consulting a lawyer, so nobody’s tested it out in court,” says McCardle.
But legal technicalities are only part of the puzzle. Culturally, fan fiction can act like a pair of golden handcuffs, a loving tribute from an author’s most ardent fans that’s also something of a veiled threat. Any attempt by a writer of Rowling’s stature to shut down fan fiction would likely backfire into a public-relations firestorm that would only serve to draw more attention to the material.
And even Rowling and the various companies that make money off the Potter franchise can ill afford to alienate the most lucrative segment of their audience: people who often own several hardcover versions of each of her books, track down audio books in various foreign languages, and buy up at least part of the trademarked tonnage of t-shirts, shampoo and coffee mugs stamped with the likeness of Harry Potter.
With those forebodings firmly in mind, the various corporate entities involved in Harry Potter are very careful in how they couch their response to fan fiction. Rowling, who was on maternity leave at press time, was unavailable for comment, but it’s unlikely she would say more than what her business partners present as a unified public front.
From Scholastic: “We are very appreciative of Ms. Rowling’s fans. We are only concerned with anything that denigrates the property or is disparaging of it.” From Warner Brothers: “We object only to fan fiction that is offensive to children, meaning anything sexually explicit, violent or profane.”
From Rowling’s London-based agent, the Christopher Little Literary Agency: Ms. Rowling “welcomes the huge interest that her fans have in the series and the fact that it has led them to try their hand at writing.” Therefore, Rowling and her agents act to enforce her copyrights only when there is a commercial angle, when work purports to be written by Rowling herself, or “where the fan fiction is pornographic or inappropriate for kids.”
The agency recently issued two cease-and-desist orders against sites in the U.K. that feature NC-17-rated fan fiction, confirms agency spokesman Neil Blair. Both sites are now back up and running, with registration and password procedures in place designed to ensure only readers over 18 read the NC-17-rated material.
This archive contains SLASH, which is the term used for relationships between two characters of the same sex, in this case, male/male. If you don’t like the idea of two boys together, this site is not for you. If you’re curious, go ahead, but make sure you know what you’re heading for and understand the warnings.
The message behind those types of legal actions is getting through to “Mira.” She won’t give out her real name or let her screen name be printed because she doesn’t want to call any attention to her Web site. She doesn’t talk about her baby, who is mentioned on the site and gurgles in the background as she talks, won’t say what she does for a living, though she does allow that she has a professional job, and will say only that she lives somewhere in the Midwest. She has many close friends in the fanfic community, but not one person in her real life knows what she does online.

Mira writes explicit slash stories, each of which contains descriptions of anal- and oral-sex acts detailed enough to singe the eyebrows off every staff member in the United States Copyright Office. Mostly she writes about Harry having sex with his professor, Snape, though, as she is careful to point out, it’s always a Harry who’s been magically aged by a few years. (Her classroom-spanking story, for example, turns out not to be rape, as it initially appears, but a consensual role-playing sex game initiated by a 20-year-old Harry.)

Though it may sound otherwise, “slash” isn’t meant to imply violence; it refers to the punctuation mark between the character’s names—as in Harry/Ron or, in what’s widely considered to be the first modern slash pairing, Star Trek’s Kirk/Spock.

Why do women write fantasy stories about males having sex? There are nearly as many theories as there are slash writers out there. Slash can be a distancer, a way for readers to try out eroticism without being fully implicated, says Jenkins, “like safety wheels for younger readers and writers.” It can be a feminist act, turning the tables and becoming the observer rather than the observed. Or it can be driven by more practical considerations—namely a lack of decent female characters.

“If you’re trying to work with well-developed characters, in most fandoms that means male characters,” says Jenkins. Further, he points out, Rowling has chosen a setting—the English boarding school—that in literature and real life has traditionally been a place where boys experimented with their sexuality.

Slash and pornography are not one and the same. There are slash stories that are rated G, where, say, Harry and his best friend Ron do nothing more than look longingly across the room at one another. And there are heterosexual Harry Potter fan fictions that are rated NC-17 and deservedly so. But when the cease-and-desist orders go out and the publicity people talk off the record about stories that are harmful to children, they’re talking about the kind of stories Mira writes. 

Yet when Mira talks about her fanfic, she speaks eloquently, pauses often to choose her words carefully, reflects on the long history of homosexual relationships in Western culture. She says she writes slash because that’s where she feels the emotional energy in the stories. There are simply no female characters that interest her in the same way. And she writes explicit sex scenes because they’re an integral part of her story lines.

“There is a lot of sex in my stories,” Mira concedes. “Lots of times it’s a kind of catharsis. It’s there for emotional healing. Sex is an easy way for most men to communicate, so in that way it’s not all that different from real life.”

Whose real life that would be might hard to say, however. Mira’s thoughtful observations on the writing life and gender roles stand in sharp relief to the rough and raw writing she actually posts online. And Mira is by no means alone.

Scratch the surface of a few slash sites online, and it doesn’t take long to find tales of bestiality, rape, sexual torture, and Weasley twins sodomizing one another. This is by no means mainstream fan fiction, it’s not even mainstream slash fiction, but it is out there and available to anyone willing to click “yes” when a little warning box pops up on-screen saying, “I am old enough to read this.”

No one wants to put words in J.K. Rowling’s mouth, but it’s safe to assume that when Rowling hails her readers’ creativity, she has in mind something other than tales wherein Professor Snape is fellated by the Sorting Hat.

“Ulysses” this isn’t. And when James Joyce wrote his 1922 master work, Homer had been dead for 27 centuries. Rowling is a living, breathing, solo artist in the midst of what she and her publishers, and many critics, consider a work of serious artistic merit.

Fan fiction, then, is actually a kind of literary karaoke, with fans taking the words out of the author’s mouth as she’s still trying to writing them. Harmless, ultimately, but perhaps not the best of manners, either.

Rowling’s online fans write and speak passionately of their appreciation that she allows them to write fanfic without legal consequence. But when asked how they think she might feel, not as a copyright holder but simply as a writer of a work in progress, the discussion turns clinical. 

“As soon as she writes a book and puts it out there, it’s a public text,” says Liza, the Ph.D. classicist. “The relationship isn’t between author and author, it’s between the fan fiction and the original text.” agrees Mira, the explicit slasher. “Once they’re produced and out there, the works are disassociated from the person or people who produced them.”

In an age of endless and easy digital interaction, an author becomes merely the first in a line of people pitching ideas into the pot. “It’s an object-oriented approach, like when computer programmers re-use code,” observes Holland & Knight’s Mahony. “They’re taking the raw materials of the culture and lumping them together to make something new.”

On the whole, publishers, academics, intellectual property experts and certainly fanfic writers themselves tend to take the long view of the phenomenon. “The purpose of copyright law is not to benefit publishers, it’s to benefit public discourse,” Mahony points out. “People are putting in the time to come up with new and creative material, so there is a good robust debate going on here. You may not agree with the slash sites, but if it’s not cutting into [Rowling’s] sales, it will and probably should continue.”

Tracy Mayor lives in Hamilton. She has an essay forthcoming this fall in “The Pushcart Prize XXVIII: Best of the Small Presses.”