Harry Potter and the Simulacrum: Contested Copies in an Age of Intellectual Property

Abstract

This essay begins by investigating how and on what basis the boundary between originals and copies gets drawn within the framework of intellectual property law. It does so by exploring Harry Potter-related doubles that were featured in the 2000 trademark and copyright infringement case, Scholastic, Inc., J. K. Rowling, and Time Warner Entertainment Company, L.P. v. Nancy Stouffer. The paper then moves on to consider how, within the context of the case, the boundary line dividing “originals” from “copies” grows increasingly indeterminate, so much so that it becomes untenable to speak of either category at all. It thus investigates what happens when the figure of the simulacrum, which troubles bright-line distinctions between originals and copies, enters into the legal realm. Theoretically, the simulacrum would seem to pose a challenge to intellectual property law's jurisprudential foundations, given how it blurs what should count as an “original” or a “derivative” work. This paper shows that while this may be true in principle, powerful multimedia companies like Scholastic, Time Warner, and others can strategically deploy simulacra to shore up their intellectual property rights.

Keywords:

• Harry Potter
• Intellectual Property
• Copyright
• Trademark
• Simulacrum

All reproduction implies … a kind of black magic.

 (Baudrillard, 1983, p. 153, n. 1)

Picture this: the cover of a children's book features a color illustration of a wiry Anglo boy, probably about ten or eleven years of age by the looks of him. He stands there awkwardly, smiling. He is dressed modestly, wearing only a plain blue t-shirt and nondescript dark gray bottoms. His black hair is a bit unkempt, despite appearing to have been combed. Several fly-aways swoop unevenly across his forehead, and three small tufts spike upward from the top of his skull. One of the boy's most distinctive features are the dark, tortoise-shell glasses he wears, which border on oversize. They are almost perfectly circular, save for two relatively small points on either side where the rims meet the temples. The boy's name? Larry Potter.

Yes, that was Larry, and not Harry, Potter. Young Larry is the title character of a series of children's books penned by Nancy Kathleen (N. K.) Stouffer of Camp Hill, Pennsylvania, USA, which arguably preexisted the Harry Potter franchise. The image I have just described appears on the cover of Larry Potter and his best friend Lilly (Stouffer, 2001; c.f. Rowling, 1997, pp. 20–21). When Larry the literary figure is not bemoaning his poor eyesight and fretting about whether his friends will recognize him with glasses on, he spends his time circulating about the arcane world of intellectual property litigation. He and his visage have become key pieces of evidence in the 2000 trademark and copyright infringement case, Scholastic, Inc., J. K. Rowling, and Time Warner Entertainment Company, L.P. v. Nancy Stouffer. 1

Doubles seem to abound where Harry Potter is concerned. Numerous critics have stressed the allegorical dimensions of the Potter stories, for instance, suggesting that the social relations represented therein double those of our own nonmagical, “Muggle” world. They point to the series’ rendering of racism (e.g., the epithet “Mudblood,” which refers to a child born of magical and nonmagical parentage) and classism (e.g., the affluent Malfoy family's disdain for the working-class Weasleys), among other themes, as indicative of the books’ broader concern for the failures and possibilities of actually existing multicultural, liberal societies (Blake, 2002, pp. 102–109; Carey, 2003; Gupta, 2003, pp. 99–126; Heilman, 2003; Ostry, 2003; Patterson, 2004; Westman, 2002). Given the book series’ astonishing success and the lucrative global media enterprise it has spawned, popularizing a kind of antiracist and anticlassist pedagogy is an achievement worth noting.

Allegorical interpretations of Harry Potter both result from and reaffirm an elegant parsing of reality. Magic would seem to exist “over there,” in a fantasy realm where the conundrums of this world may be displaced, doubled, and worked through. Without diminishing the utility of this interpretive framework, I contend that it disposes critics to underestimate the extent to which the magic of Harry Potter's universe inheres in our very own. I am neither claiming that critics have failed to read sufficiently into the stories, nor that they have erred in taking them too literally. Our Muggle world is no less enchanted than is Harry's, I want to suggest; if anything, scholarly criticism of Harry Potter has tended not to take the books and the magic they embody literally enough. The prestidigitations of these texts exceed the narrow sphere of representation, and it is here, in this excess, that I want to locate and elaborate on a magical double that haunts our world—what Hillel Schwartz (1996) calls the “almost supernatural distinction between an original and a copy” (p. 248).

To do this, I explore Harry Potter-related doubles that were featured in the Scholastic et al. v. Stouffer lawsuit.2 My approach is inspired in part by the recent work of Gordon Coonfield (2006). Building on philosophers Gilles Deleuze and Félix Guattari, Coonfield argues that critical media scholars should focus their attention on the “machinic” connections or relays that bind technologies of representations to specific epistemologies, bodily dispositions, and social institutions (see also Wiley, 2003; Wise, 1997). In turning to the aforementioned case, my aim is to investigate how and on what basis the boundary between original and copy gets drawn within the framework of intellectual property law. Hence, this paper is an attempt to explore both the means and processes whereby interested parties attempt to transfigure singularly unique cultural artifacts into “the real thing” and their facsimiles, rather than a critical reading of Harry Potter representations per se.

But this is only half of the story. The magic of Harry Potter also resides in how competing claims about the young wizard's authenticity open up and help to answer the question: what happens when the boundary line dividing originals from copies becomes indeterminate, so much so that it becomes untenable to speak of originals and copies at all? This question, it should be pointed out, poses a significant quandary from a legal standpoint. Because courts of law are in the business of adjudication, they cannot resolve it by celebrating the play of difference. From the vantage point of intellectual property law, cultural artifacts cannot be permitted too much semiotic leeway, especially in cases where competing claims about their priority cannot be definitively reconciled. The litigious life of Harry Potter-related doubles thus lends insight, I want to argue, into how courts of law manage the critique of representation (i.e., the growing diffuseness of the categories “original” and “copy”) within the context of increasingly recombinant media and cultural production (Hebdige, 1987; Jenkins, 2006; McLeod 2001 ,2005; Vaidhyanathan, 2001).

Lurking behind all this sorcery is a disquieting figure, the simulacrum. It emerges first in Plato's meticulously gradated universe, where it occupies the lowest rung in the hierarchy of the arts of making (poiesis). Plato's simulacrum is neither model nor exact replica, but rather a distant semblance of whatever it doubles—the figure of the same, only different, and thus of fidelity corrupted. It is also a term he associates with the Sophists, that itinerant group of orator-pedagogues whom he likens to “conjurers” for having despoiled rhetoric with their falsely imitative arts (Plato, 1984, pp. II.64–II.68, II.26). More recently, Jean Baudrillard (1983, 1994) and Gilles Deleuze (1983, 1990, 1994) each has reimagined the simulacrum, in his own way, as that which causes bright-line distinctions between originals and copies to blur. However conceived, the simulacrum would seem to wield a certain, unsettling power. But what happens when theory interfaces with law? That is, what happens when the simulacrum enters into determinate legal contexts? I contend the litigation involving Harry Potter-related doubles stages these questions; it throws into relief the simulacrum's theoretical and political limits for scholars in and beyond media studies; and it sheds light on the legal thaumaturgy by which those limits get imposed.

Analogy: My Fetish is to Your Aura …

I am hardly the first to speak of the magical character of cultural goods. More than a century ago, Karl Marx (1867/1976) referred to a “fetish” character that commodities assume under capitalism, while in 1936, Walter Benjamin (1968) explored the mysterious “aura” surrounding “original” artwork. These qualities, which are immanent to and a product of the realm of people and things, nevertheless mystify cultural goods, imbuing them with other-worldly characteristics. Both Marx and Benjamin took magic seriously, perhaps even literally, seeing it, albeit in somewhat different ways, as intrinsic to modern social life.

Marx's Das kapital is an exemplary work of modern political economy. Yet, inasmuch as Marx provides a “scientific” account of social and productive relations under capitalism, his methods nonetheless reveal a society deeply enchanted in its own right. To read Das kapital is to enter into a world not unlike the one readers will find in Harry Potter. Charmed objects, deadly magical creatures, and ghosts populate Potter's world just as they do in Marx's magnum opus, which is replete with dancing tables, thirsty vampires, and phantom orchestras. (So, too, is Marx and Engels’ [1848/1984] The communist manifesto, in which the authors liken the bourgeoisie to “a sorcerer who is no longer able to control the powers of the nether world whom he has called up by his spells” [p. 14].) Perhaps it is no surprise, then, to hear Marx (1867/1976) speak of commodities in Das kapital as “abounding in metaphysical subtleties and theological niceties” (p. 163). The commodity fetish takes center stage in this drama precisely because of magic's centrality to the world Marx describes.

The fetish character of commodities arises, according to Marx, from the peculiar form these objects assume under capitalism. Here, commodities come to be valued not only, or even primarily, for the uses to which they can be put, but perhaps more importantly for their capacity to be exchanged for other commodities. This privileging of exchange- over use-value obscures the vast stores of human labor power embodied in any thing, with two principal results. First, whether mediated by money, the universal (abstract) form of equivalence, or not, commodity exchange comes to stand in for more direct forms of human relation. “It is nothing but the definite social relation between men and women themselves which assumes here, for them, the fantastic form of a relation between things,” writes Marx (1867/1976, p. 165). Second, to the extent that commodities appear to be severed from the realm of human affairs, they would seem to be produced autochthonously and solely for the sake of exchange. Marx again: “the products of the human brain appear as autonomous figures endowed with a life of their own, which enter into relations both with each other and with the human race” (p. 165). The strange magic of the commodity fetish thus is both cause and effect of inanimate objects assuming a “life of their own,” seemingly independent of human praxis.

If the commodity fetish is a multifarious form of epistemological magic, which disguises human labor power, then what of Benjamin's (1968) notion of the aura? I pose this question with some trepidation, given the almost compulsive citationality that surrounds the essay from which the term is drawn, “The work of art in the age of mechanical reproduction.” To say this is not to reduce its import, but rather to point out that Benjamin's essay and its attendant concept, aura, have spawned something of an industry when it comes to engaging industrially reproduced cultural goods. As Udi E. Greenberg (2008) observes:

Walter Benjamin claimed that the democratization of art, brought about by mechanical mass production, would sharpen the critical faculties of the masses. The popularization process to which Benjamin himself was subjected, however … reveals that the dynamics encompassed in it are far more complex, and are at times paradoxically based on a structural tradition that contradicts the goals of the Benjamin industry's agents themselves. (pp. 67–68)

Indeed, despite Benjamin's (1968) argument about forms of reproduction undermining the aura, or the sense of authenticity specific to a given artifact after which reproductions are fashioned (p. 223), the social life of his essay belies a different story. In publication after publication, in conference after conference, in classroom after classroom, both the main argument and the text of Benjamin's essay are extensively reproduced. The result is that the piece accrues ever more social, theoretical, and intellectual capital. Ironically, then, the essay's mass reproduction would seem to be what is imbuing it with authority and authenticity—with luminescent aura—despite Benjamin's claim about the waning of the aura in the age of mass reproduction.

So what story can the social life of Benjamin's essay tell about the nature of mass reproduction and the magical work of aura, beyond what the essay explicitly says? In the preceding example, doubles do not degrade the original's aura. To the contrary, they are a necessary condition of the aura of originality, the magic of authenticity. Or, to say it even less equivocally, copies produce originals as such, not the other way around (c.f. Chang, 1999, p. 188; Deleuze, 1994, p. 289; Sterne, 2003, pp. 217–221). Tucked away in the hinterlands of “The work of art in the age of mechanical reproduction” is a footnote in which Benjamin (1968) suggests as much:

Precisely because authenticity is not reproducible, the intensive penetration of certain (mechanical) processes of reproduction was instrumental in differentiating and grading authenticity.… To be sure, at the time of its origin a medieval picture of the Madonna could not yet be said to be “authentic.” It became “authentic” only during succeeding centuries and perhaps most striking during the last one [i.e., the 19th century]. (p. 245 n. 2)

Some people undoubtedly perceived the Madonna to be a unique artifact prior to the advent of new technologies of mass reproduction in the 19th century. The possibility of seeing it as authentic or original only arises, however, within the context of reproducing the image on a mass scale.² The magic of the aura is precisely this, then: the concept's spellbinding capacity to conjoin original and copy and to invert their priority, so that “derivative” works appear to be a function of a putative “original.”

Indeed, the derivative or copy would seem to be the most original, perhaps the only original, assuming we still feel compelled to hold on to that terminology at all. Gilles Deleuze (1994) affirms this point when he speaks of “a perfect independence on the part of each presentation” or instance of a mass-produced object (p. 70). Deleuze's project in Difference and repetition and elsewhere is to overturn Platonic mysticism, and more specifically to undo its most enduring set of distinctions: between essence and appearance; original and copy; the thing-in-itself and its simulacrum. Plato and his followers erred, Deleuze argues, in their claim that a repeated thing always must refer to some “concept” outside of itself, which is to say, to a set of epistemological conditions that posit (to the point of demand) an existential link between the repeated thing and that which it doubles (p. 13). This collapse of the ontological into the epistemological mobilizes Platonism's moral claims about the primacy, even sanctity, of essence over appearance, such that the repeated thing or “copy” comes to represent an existentially degraded version of the vaunted “original.” But what would happen, Deleuze asks, were we to think repetition ontologically, that is, in itself?

The result, Deleuze argues, would be a renewal of our ability to appreciate difference in repetition, which is tantamount to our not conflating the repeated with the Same, or even the Similar. “It seems … that, with Plato, a philosophical decision of the utmost importance was taken, that of subordinating difference to the supposedly initial powers of the Same and the Similar, that of declaring difference unthinkable in itself and sending it, along with the simulacra, back to the bottomless ocean” (p. 127). Perhaps it is no surprise, then, that simulacra take on a renewed importance for Deleuze. In contrast to those of Jean Baudrillard (1983, 1994), Deleuze's simulacra refer not to phantasmic copies of copies, each of whose appearance bears a recursively diminishing degree of resemblance to a furtive original. They refer, rather, to “the act by which the very idea of a model or privileged position is challenged and overturned” (Deleuze, 1994, p. 69; see also Deleuze, 1990, p. 262; Massumi, 1987). In this reading, which is at once more and less faithful to Plato, simulacra unravel the ontologically moribund original-copy distinction. They do so by compelling people to acknowledge the singularity of every repeated thing. In more concrete terms, simulacra challenge normative juridical and political-economic understandings of repeated things as they arise within capitalist relations of production, given the doubt they cast on the rubrics by which the art-law-culture nexus sustains itself: “In every respect, repetition is a transgression. It puts law into question, it denounces its nominal or general character in favour of a more profound and more artistic reality” (Deleuze, 1994, p. 3).

The point of all this looking up the magician's sleeve is to identify some of the ways in which capitalism works its epistemological magic. It is also to think through some philosophical conditions by which to articulate a more deeply politicized aesthetics of daily life, given the peculiar prestidigitations by which two or more social artifacts become existentially linked, temporally prioritized, and thus morally hierarchized. Hence the simulacrum—outlaw art, which in Deleuze's account would seem poised to break the spell. But to what extent can it be counted on to do that?

The Muggle Struggle

The struggle over commodities, copies, and the magic of capitalist production comes to a head in the intellectual property dispute, Scholastic et al. v. Stouffer. The suit's foundations were laid in August 1999, when Stouffer and her attorneys initiated talks with Scholastic, Inc., Potter's U.S. publisher, over ownership rights to specific copyrighted and trademarked materials associated with J. K. Rowling's by then wildly popular book series. In addition to the aforementioned physical similarities between the Potters Larry and Harry, and among other allegations, Stouffer contended that Rowling willfully had borrowed from her, with neither permission nor compensation, the word “Muggle.” In Harry Potter's universe, Muggle refers, in its noun form, to persons without magic and, adjectivally, to things associated with those persons. Stouffer alleged she had introduced Muggle to the literary community in 1984 at a New York City toy fair with the debut of her children's book, The legend of Rah and the Muggles—that is, more than a decade prior to the first Harry Potter volume's publication in 1997. Stouffer also claimed to have copyrighted and trademarked Muggle around that time. As such, she insisted that only she—not Scholastic, not Rowling, not Warner Bros., nor any party connected with the Harry Potter series—could assert ownership rights over and thus license the lucrative word (Scholastic et al. v. Stouffer, 2000).

All that might seem straightforward enough, but the story only grows odder as we venture down the rabbit hole and enter the enchanted realm of the “legal real” (Gaines, 1991, p. 90). There, doubles, copies, frauds, and unexpected reversals rule the day. After talks between the parties stalled, the Muggle struggle came to a head in November 1999 with the filing of the complaint that resulted in the aforementioned legal action. Now, given Stouffer's contentions, one might reasonably expect her and her attorneys to have filed suit against Scholastic and its associates. In fact, it happened the other way around; Scholastic and company filed suit against Stouffer, seeking “a declaratory judgment that they have not infringed and are not infringing any of … Nancy Stouffer's copyrights or trademarks” (Scholastic et al. v. Stouffer, 2000). Stouffer thus became the defendant in a case in which others were alleged to have violated her intellectual property rights. Preemption such as this is not uncommon in the realm of the legal real, however, especially in contests over high-stakes financial concerns.

Compelled to mount a formal legal defense, Stouffer submitted six key pieces of evidence to prove she was the legitimate rights-holder of the word, Muggle. She also hoped to show, in the process, that Rowling might have had access to, and thus opportunity to pilfer, her words and ideas in the process of conceiving of Harry Potter. The evidence Stouffer submitted to the Court included:

•	A booklet entitled The legend of Rah and the Muggles, published in 1986 by Andé, a company that Stouffer, together with a group of family and friends, had founded earlier that year. Andé went bankrupt in September 1987. The Muggles (who, intriguingly, live in a war-torn land called “Aura”) are referred to as such in the pages of Rah. The book never sold in stores, but promotional copies circulated in the U.S. and Europe in the late 1980s.
•	A copy of an advertisement from the March 1987 edition of Playthings magazine, promoting the Rah book. The ad reads, “Muggles™ from RAH™,” and there appears an illustration of the Muggle characters.
•	A photocopied edition of The legend of Rah and the Muggles, published in 1988 by Book Cook, Inc. (B.C.I.). Stouffer founded B.C.I. after Andé's bankruptcy, although it folded too, in October 1988.
•	A photocopied printer's proof of an Andé coloring book, which reportedly was an early draft of Larry Potter and his best friend Lilly. The book contains no title page, although one interior passage refers to Larry Potter.
•	Two color photocopies of the booklet entitled Larry Potter and his best friend Lilly, bearing a B.C.I. imprimatur.
•	Three 1988 invoices, totaling $1.15 million, for the sale of unspecified B.C.I. titles to Great Northern, a book and periodical distributor. Stouffer offered the invoices to substantiate her claims about the Muggle mark's trade significance (Scholastic et al. v. Stouffer, 2000).

Stouffer's 2000 countercomplaint detailed a series of further coincidences that, taken together, led her to suspect Rowling had unlawfully taken additional proprietary material from her.3

Despite these coincidences, Stouffer still lacked a smoking gun by which to prove Rowling had willfully lifted her intellectual properties. Her insinuation, that Rowling may have stumbled across her work while visiting briefly in the U.S. and living in Europe, was thin at best (Stouffer v. Scholastic et al., 2000). Nevertheless, the long list of apparent similarities probably would have given any reasonable person pause to consider whether Rowling had represented her much-heralded work fraudulently, thereby violating the intellectual property interests that Stouffer insisted were her own. That Rowling reportedly could produce few documents attesting to the originality of her work, most notably manuscript drafts of Harry Potter and the philosopher's stone (Stouffer, 2002), added further cause for speculation. Presiding Judge Allen G. Schwartz effectively concurred (Scholastic et al. v. Stouffer, 2000).

Stouffer's contentions about Rowling's fraudulence and illicit copying doubled back on her, however, when Scholastic et al.'s team of expert witnesses showed that the bulk of Stouffer's evidence must have resulted from, of all things, fraudulence and illicit copying. Take the booklet, The legend of Rah and the Muggles, for instance. In a virtuoso feat of reverse-engineering, Scholastic et al. demonstrated that the words “The legend of” and “and the Muggles,” which appeared on the volume's title page, must have been printed in 1991 or later. The volume couldn't have been an original Andé edition, or if it were, the all-important Muggles must have been added retroactively. Stouffer's 1984 copyright registration supported the plaintiff's contention, given that it listed the title of the work merely as, Rah. The Playthings advertisement? Scholastic et al.'s attorneys tracked down the magazine, and although the ad copy indeed referred to Muggles, the ad they found lacked the boldly declarative “Muggles™ from RAH™” logo that figured so prominently in the version Stouffer had provided to the Court.

Larry Potter fared about as well. The lone paragraph mentioning the youngster's last name, Scholastic et al.'s experts testified, was rendered in a font different from that of the remaining text. It wasn't even clear, by the time the dust settled, whether original B.C.I. editions of The legend of Rah and the Muggles and Larry Potter and his best friend Lilly ever existed at all. Former employees of the short-lived publishing house testified to never having produced a book whose title referred to Muggles. And although Stouffer claimed that the color photocopies of Larry she had provided to the Court came from originals published in 1988, the plaintiffs countered by showing that the technology used to produce the supposed originals didn't exist until 1993. Finally, with regard to the invoices Stouffer hoped would document the market strength of her work: neither B.C.I. salesperson Joan Korban Wright, nor Great Northern president Randolph Slaff, whose names appeared on the documents, recalled ever having brokered a deal to distribute B.C.I. books. Slaff, for his part, testified that the signatures bearing his name were not his own, while Wright went a step further to assert that Slaff's signature must have been forged by Stouffer, whose handwriting she knew well (Scholastic et al. v. Stouffer, 2002).

The Scholastic et al. v. Stouffer decision was devastating to the defendant. Given Stouffer's scant sales (she never sold more than 6,000 copies of any of her books, compared to the 400-million-and-counting Harry Potter volumes sold [Flood, 2008, n.p.]) and what the Court described as her “pattern of intentional bad faith conduct,” it concluded:

Plaintiffs’ publication, distribution, and exploitation of the Harry Potter books does not violate any of Stouffer's intellectual property rights. Stouffer is permanently enjoined from making false representations to third parties indicating that she owns all rights in the “Muggle” and “Muggles” trademark and copyrights, or indicating that plaintiffs have violated her intellectual property rights. (Scholastic et al. v. Stouffer, 2002)

The Court proceeded even further, granting Scholastic et al.'s motion to sanction Stouffer for her “perpetration of a fraud upon the Court.” In addition to fining Stouffer US$50,000, the Court ordered her to pay the plaintiffs’ attorneys’ fees and costs, which they claimed totaled nearly US$1.65 million. Judge Schwartz reduced that amount by about two-thirds, however, citing “discrepancies” in the law firms’ billing procedures and “a large volume of duplicative work” that had run up the plaintiffs’ tab unnecessarily (Scholastic et al. v. Stouffer, 2002; see also Scholastic et al. v. Stouffer,2003).

A Precession of Simulacra

It may be tempting to read the Scholastic et al. v. Stouffer decision as a kind of karmic outcome, the product of a get-rich-quick scheme gone bad. Given Stouffer's questionable maneuverings and the expert testimony presented in court, there is good reason to suggest, on one level, it probably was. On another level, though, the case shows just how strangely enchanted this world of ours is, given the peculiar but still completely routine twists and turns that occurred during the litigants’ dizzying dance of claim and counterclaim. The genius of this case lay, really, in Scholastic et al.'s decision to file a preemptive suit against Stouffer, who was compelled then to defend the originality of her work to an extent that J. K. Rowling was not. In fact, the plaintiffs had to prove very little to secure their trademark and copyright interests, other than to show the false—and falsely derivative—nature of the evidence that Stouffer had presented to the Court. Schwartz (1996) is right on the mark, then, when he states: “It is within the exuberant world of copies that we arrive at our experience of originality” (p. 212). Rather than copies and frauds affirming the substance or plenitude of purported originals, the case shows how the latter arise, empty and ghostlike, in the negative outline of the former.

And what of the evidence? Surely there is compelling proof of wrongdoing on Stouffer's part. What is also compelling, however, is the more legitimate evidence that, owing to the dazzling display of dupes and doppelgängers, the Court downplayed in deciding the case. Among the most persuasive facts is Stouffer's having successfully contested trademark registration of the word Muggle in 1992. Here, the offending party was a mouse named Muggle, who, assisted by the voice talents of comedian Bobcat Goldthwait, starred in the American Broadcasting Company's short-lived, animated primetime television series, Capitol Critters. While it is not clear whether producer Steven Bochco withdrew his application from the federal trademark office because of Stouffer's claim, the series’ cancellation, or both, the fact remains that Stouffer asserted trademark rights publicly, and with a federal agency, five years prior to the first Harry Potter volume's debut (“‘Harry Potter’ book lawsuit,” 2000; Stouffer v. Scholastic et al., 2000; Stouffer, 1986). Stouffer officially copyrighted an illustration of the Muggle characters in September 1986, moreover, referring to them as such on the application, and in June 1987, she copyrighted a song she had penned called “Muggle-bye.” The former was linked explicitly to the Rah book, whose copyright she had registered with the U.S. Library of Congress in 1984 (Stouffer, 1986 ,1987).

Despite holding these copyrights and having taken action against Bochco's mischievous mouse, Stouffer's Muggles still were not what the law would consider to be a “strong mark,” given her languid book and merchandise sales. The situation was compounded by the fact that she had failed to register the word Muggle with the federal trademark office until February 2000, asserting until then a less weighty, common-law trademark (Stouffer, 2000).4 The Court's ruling in Scholastic et al. v. Stouffer meant that, in an ironic twist of fate, her Muggles no longer would be entitled to the very intellectual property protections she had pursued and defended for years. In political-economic terms, the meager economic capital Stouffer's Muggles had generated resulted in the diminishment of the legal capital conferred on her by intellectual property law. Here, then, is an operant tautology at work in the Scholastic et al. v. Stouffer decision: Stouffer's Muggles were not a strong mark, nor were they entitled to become one, because they were not, after all, a strong mark.

Odder still is how the contested copies at the heart of this case compelled the Court to evacuate the word Muggle of any sense of originality or distinctive meaning for purposes of preserving Scholastic et al.'s trade rights. Rowling claims to have drawn her inspiration for the word Muggle from “mug,” a British colloquialism meaning “easily fooled” (Bone, 2000). Stouffer, for her part, maintains that Muggle was a nickname she had used for her son when he was growing up (Stouffer v. Scholastic et al., 2000; “‘Harry Potter’ book lawsuit,” 2000). As the Court observed in its decision, however, there was “no indication that ‘Muggle’ or ‘Muggles’ could be viewed as ‘truly distinctive,’ especially given the fact that these words have been used in commerce by third parties long before Stouffer [or Rowling, presumably] created any of her works” (Scholastic et al. v. Stouffer, 2002, n. 8). The Court then presented an inventory of artistic works, supplied to it by the plaintiffs, that refer at one point or another to the word Muggle. The list included two children's books: Johnny Gruelle's Raggedy Ann in the snow white castle (1946) and Carol Kendall's The gammage cup (1959), both of which feature a character named Muggle. The list also referred to a 1928 Louis Armstrong song called “Muggles,” in which, according to the Oxford English dictionary, the Muggle in question referred not to characters but to cannabis—that is, to marijuana cigarettes. Still, the list of Muggle-doubles does not stop there. Both the plaintiffs and the Court overlooked Lewis Carroll's 1867 short story “Wilhelm von Schmitz,” in which “the euphonious title of Muggle” is conferred on one of the characters (Thomas, 2000). Surely there are other Muggles lurking about the cultural realm. In any case, lost amid the Muggles’ rampant proliferation is the claim that any one Muggle reference might be said to be originary; however, what must vanish then, too, is an abiding, existential link that would conjoin some or all of these Muggle references as copies. Absent an origin, that is to say, their status as copies grows more and more diffuse. What remains is a series of Muggles that are the same … only different.

The Scholastic decision begins by summoning a fairly clear-cut sense of originals and copies, therefore, only to muddy that distinction later on. This is not altogether uncharted territory, however. As Jane Gaines (1991) observes about the case Onassis v. Dior, which revolved around the legitimacy of using celebrity look-alikes in advertising: “Copyright law, having seen so much of similarity, is unimpressed with it.” She adds that because similitude is such a potentially pliant state of affairs, “copyright law … cannot be based on the commonsense notion of absolute uniqueness or a one-of-a-kind ideal. It recognizes claims based on firstness in order to break ties when two objects of culture appear to be identical or, in legal terms, ‘substantially similar’” (pp. 96–97). Intellectual property cases need not be adjudicated on the basis of unqualified originality claims, in other words, an insight Scholastic et al. v. Stouffer reinforces only too well. But in this respect the Onassis and Scholastic cases also part company. In Scholastic, the Court determined that the Muggles in question were so substantially different from one another that the criterion of firstness would not—indeed, could not—apply.

Thus, the Court was forced into what could have been—or, theoretically, what should have been—a precarious position. It admitted that there were no originals or copies, at least, where Muggles were concerned; there were only simulacra. The Court thereby embraced those nettlesome bits of outlaw art whose purpose is to exorcise the world of its Platonic inheritances, beginning with originals and copies. To put this even more pointedly: simulacra conceivably should have no business in the realm of intellectual property law, except maybe to cause trouble. After all, intellectual property law historically has been spellbound by matters of duplication and derivativeness. As such, simulacra would seem to be nothing if not threatening to the foundations of its jurisprudence. Copyright, in particular, is “an institution built on intellectual quicksand: the essentially religious concept of originality, the notion that certain extraordinary beings called authors conjure works out of thin air” (Rose, 1993, p. 142). Nevertheless, in Scholastic et al. v. Stouffer, simulacra ran rampant. Not only that, they propped up rather than undermined the plaintiff's claims to intellectual property rights! What this suggests is that simulacra may not only operate outside of or against the law to trouble intellectual property (both the legal right and the broader concept); they may operate inside the law as instruments to secure exclusive proprietary claims as well.

Conclusion

In an age in which corporate media giants like Scholastic, Warner Bros., and others increasingly define the parameters of human creativity and expression through aggressive assertions of intellectual property rights (Borah, 2002; Jenkins, 2006, pp. 185–198), Stouffer's challenge, whatever her intentions, deserves a certain modicum of respect.5 What was once a “culture industry” is fast becoming a “copyright industry” (Horkheimer & Adorno,1944/1997, pp. 120–167; Lessig, 2001, p. 252). This shift threatens not only to restrict legitimate cultural production to an already enfranchised (and well-attorneyed) few, but also, in the longer term, to create unreasonable terms of access to the cultural commons—the publicly accessible resources by which culture is constantly made over again, anew. This essay thus complements and extends the recent work of Jarrod Waetjen and Timothy A. Gibson (2007). They have shown how corporations such as Time Warner, which are involved in the production and distribution of Harry Potter, “activate” specific aspects of the Potter texts in advertising and other promotional venues, hoping to eclipse their potentially progressive political messages (e.g., anti-consumerism). The struggle over trade rights to “Muggle” and related Potter indicia show how media institutions can marshal the law and legal categories so as to further consolidate the terms of media reception and use.

Still, Scholastic et al. v. Stouffer is about more than individual and corporate greed in an age of ascendant intellectual property. Implicit in the case are additional theoretical lessons that bear directly on how one might imagine intervening in this emergent articulation of art, law, and culture. First, while it is true that simulacra might go a long way toward dispelling the bedazzling aura of originality, it is also the case that the politics of their doing so are not guaranteed. When Deleuze (1990) describes simulacra as “the edge of critical modernity” (p. 265), one might surmise that they stand opposed to institutions such as intellectual property law. After all, the idea of intellectual property has roots deep in modernity, with the advent of printing and other technologies of mass reproduction, along with the subsequent exaltation of the author as lone, creative genius (Foucault, 1977; Johns, 1998; Rose, 1993; Woodmansee, 1994, pp. 35–56). Scholastic et al. v. Stouffer shows how the law does not always shrink from simulacra, however, and how it can in fact summon their critical capacities at decisive moments to achieve specific ends. In this case, the simulacra in question, Muggles, became instruments whereby the plaintiffs and the Court attenuated a vexed matter of creative priority (i.e., of originals and copies) by displacing it into a more clear-cut matter of political-economic power. Legal entities therefore are capable of wielding simulacra in ways that may break the spell of representation, only then to cast an even stronger one in which capital comes to express itself more immediately than ever through the law.

Second, the case suggests how the experience of culture is mediated increasingly by law and legal categories. Beyond the book world, this phenomenon is dramatized by the music and movie industries’ penchant for suing enthusiasts who trade copyrighted materials online. These and other examples point to the diminishment of culture's “relative autonomy” from matters of law, economics, and so forth at the turn of the 21st century (Althusser & Balibar, 1997), and perhaps, then, to a sense in which cultural politics on its own is becoming less viable or efficacious today. “Culture is not where change is being organized and experienced, and it is not where resistance is being viably organized,” Lawrence Grossberg (2006) asserts. “This need not be taken to mean that culture does not matter but that the ways in which it matters—and hence, its effects—have changed in ways we have not yet begun to contextualize or theorize” (p. 17). This essay constitutes an effort to begin this work of resituating culture, theoretically, in addition to a plea to take an even more active interest in the ways in which law and jurisprudence bear on what otherwise might be mistaken for straightforwardly cultural concerns.

What might critical media scholars do, exactly, to further this project? Our touchstone ought to be this observation, put forth by the Soviet legal scholar Evgeny Pashukanis (1927/1980): “commodity fetishism is complemented by legal fetishism” (p. 79). Pashukanis suggests here that we investigate not only how specific legal codes, decisions, and authorities prop up capitalist relations of production, and vice-versa, but also how the law, like commodities, can assume an almost mystical character. Apropos, legal fetishism results when one approaches the law as a sacrosanct body of rules and regulations, transcendent to human affairs, as in a natural rights tradition. Hence, it is incumbent upon us to resist such a narrow conception. Instead, we should treat the law as an affirmative expression of a particular community's norms, and more importantly, as “an invitation to consider whether, in fact, things ought to be different” (Lessig, 2007, p. ix). Legal fetishism also results when one assumes this invitation is meant exclusively for jurists. Matters of law do indeed belong in their hands, but not strictly so. As media scholars, we should apprentice ourselves to the arcana of legal argumentation, so that we may in turn participate more effectively in a domain where, today, the politics of culture are getting worked out despite us. Finally, legal fetishism crops up in the absence of relays that would connect juridical institutions with agents whose bailiwick historically has been the politics of culture, more narrowly construed. Nurturing these types of relays thus will be essential if critical media studies wishes to have uptake well into the 21st century.

This will mean continuing to produce academic scholarship; it will also mean actively pursuing opportunities to circulate our arguments and insights among those in and beyond the legal profession. We may involve ourselves with organizations such as Creative Commons and the Stanford Fair Use Project, for instance, whose work shuttles between law and culture. We may add our voices to pertinent litigation, as in the amicus brief a contingent of media professors filed in Metro-Goldwyn-Mayer Studios, Inc. et al. v. Grokster, Ltd. et al., the landmark peer-to-peer file-sharing case heard before the United States Supreme Court (Liebman, 2005). Closer to home, we may offer advice to university committees responsible for formulating file sharing and intellectual property policies. It is also worth noting that the National Communication Association lags far behind peer organizations, such as the Society for Cinema and Media Studies, in terms of formulating best practices statements for the use of copyrighted materials in publications and teaching (see Society for Cinema and Media Studies, 2007; Thompson, 1993). Should we really defer the matter of how to use popular artifacts in scholarly contexts to the likes of Scholastic and Warner Bros.?

In Harry Potter's world, the wizarding public lives in fear of mentioning the evil Lord Voldemort's name. It is cursed, they believe, and uttering it will hasten the loathsome sorcerer's return to power. In our world, many feel compelled to tread lightly around words and images associated with the name, Harry Potter. It too is cursed, in a way, owing to the strange incantations of intellectual property law and the power it has conferred on the boy wizard's rights holders. Try as we might to convince ourselves otherwise, we Muggles truly are a magical people after all.

Acknowledgements

He wishes to thank Mark Benedetti, Phaedra Pezzullo, the Conjunctures group, Eric King Watts, and two anonymous CSMC reviewers for their input on this essay. An earlier version of the piece was presented at the 2005 National Communication Association Convention in Boston, MA.

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Notes on contributors

Ted Striphas

Ted Striphas is Assistant Professor and Director of Film and Media Studies in the Department of Communication & Culture, Indiana University. He is author of The Late Age of Print: Everyday Book Culture from Consumerism to Control (Columbia University Press, 2009)

Notes

1. Scholastic, Inc., J. K. Rowling, and Time Warner Entertainment Company, L.P. v. Nancy Stouffer, 99 Civ. 11480 (AGS), 124 F. Supp. 2d 836 (S.D.N.Y. 2000). Citations appear hereafter in the text as Scholastic et al. v. Stouffer, 2000.

2. The differences in interpretation may have something to do with translation. The title of Benjamin's essay in German is “Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit.” The standard edition of the essay, translated by Harry Zohn and included in the volume Illuminations, uses the title, “The work of art in the age of mechanical reproduction.” More accurate titles would be something along the lines of, “The work of art in the age of its technical reproducibility,” “The work of art in the age of its technical repeatability,” or “The work of art in the age of its technological reproducibility” (Benjamin, 2008). Whereas the word “reproduction” denotes an act, “reproducibility” and “repeatability” both denote the conditions under which the act of reproduction becomes possible. This shift of focus, as I argue in the main text, is crucial to understanding the fuller significance of Benjamin's essay.

3. For example, Harry Potter's resident giant, Rubeus Hagrid, is described as Hogwarts’ “Keeper of Keys and Grounds” (Rowling, 1997, p. 48); one of Stouffer's Muggles is referred to in Rah as the “Keeper of the Garden.” Early on in the book series, Harry flies using an enchanted broomstick, the Nimbus 2000; Stouffer's book Silver linings contains a character named Nimbus who flies through the air on horseback. Neville Longbottom is a supporting character in the Harry Potter stories; the “Nevils” are a group of evil, mutated Muggles appearing in Stouffer's Rah. Harry Potter's mother is named Lily; so is Larry Potter's best friend. Harry peers into the enchanted “Mirror of Erised” (“Desire” spelled backward) to discover his innermost longings (Rowling, 1997, pp. 194–214); Stouffer's book Myn refers to a “Well of Desire,” which endows those who drink its magical waters with enhanced problem-solving abilities.

4. This is essentially the difference between an ®, which denotes a governmentally registered trademark, and the insignia ™, which denotes a common-law assertion of one's trademark rights.

5. Nevertheless, the tactics by which Stouffer challenged the authenticity of Harry Potter, the word Muggle, and so forth were faulty in most respects, though not because of her having attempted to defraud the Court. Stouffer erred because she sought from the Court its magical power to transfigure singularly unique cultural artifacts into ontologically anemic originals and copies for the sake of her own profiteering. In Harry Potter terms, she played something like the character Lucius Malfoy to the corporate Lord Voldemort. Neither was a hero in the end; theirs was a difference in degree more than a difference in kind.