Repost: Why J.K. Rowling Should Walk Away From Harry Potter Forever

[Author’s Note, November 26, 2018] Fantastic Beasts: The Crimes of Grindelwald has been out for a few weeks now and has been cleaning up at the box office. Too bad the reviews are trashing the movie. It got me thinking about this old piece I wrote three years ago when the first Fantastic Beasts movie had been announced. I’m republishing it here for your enjoyment.

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The other day, J.K. Rowling gave an interview with Matt Lauer about her charity Lumos and mentioned she probably wouldn't write another story about Harry and the gang, although she wouldn't foreclose the opportunity altogether. I don't know whether Rowling will ever return to Harry Potter but I do know that she shouldn't. In fact, I think she should relinquish all rights to the Potterverse before she messes it all up.

Okay what? Messes it up? J.K. Rowling is a goddamn international treasure and I should be strung up by the neck for thinking such heretical thoughts, right? Well maybe, but first let me say that I have nothing but admiration for Rowling's skill and artistry. The books and films stand as towering achievements in their respective fields and the world is undoubtedly a better place with Harry Potter than it would be without. And that's exactly the problem.

We revere authors and creators of valuable intellectual property. We assume they know what's best when it comes to their work. And sometimes that's true! George R.R. Martin certainly believes it. The general sentiment is that his voice is the only one worthy of steering the Game of Thrones ship. The same probably would have been said about J.R.R. Tolkien and Sir Arthur Conan Doyle. But as fans, I think we've been burned by too many Special Editions/ Director's Cuts/ sequels/ prequels/ sidequels/ reboots/ and preboots to feel anything but trepidation when a creator remains involved for too long with their own work. I get it. It's your baby, and it's hard to walk away from something that you poured your heart and soul into. But I'm a firm believer in the Death of the Author, and I've stated on this blog several times that when a work takes on a certain level of cultural importance, it transcends the law and becomes the property of society at large, not just the creator. That was the original intention when copyright protections were baked into the Constitution. Remember too that history is replete with authors who aren't the best judges of their own work; George Lucas is a prime example of how far from grace one can fall simply by sticking around for too long. And I want Rowling to avoid that fate.

All evidence indicates that she's not stepping away. She's released several short stories and updates on the lives of the main Potterverse characters and is even writing a trilogy of screenplays for Warner Bros featuring the tertiary Potterverse character Newt Scamander (to be played by Oscar winner Eddie Redmayne) in Fantastic Beasts and Where To Find Them. There is limitless money to be made from the Potterverse, so I think it's just the beginning of a huge tidal wave of stuff with J.K. Rowling at the helm.

Obviously the law allows Rowling to do whatever she wants. Copyright law, particularly in the U.S., isn't equipped to consider the cultural importance of works like Star Wars or Harry Potter. The result is that all art, regardless of quality, is treated the same, which can be a good thing because it prevents systemic discrimination. The downside to that approach is that financial reward becomes the only measure of success. And that just makes it harder to let go. It's easy to convince yourself that you and only you are capable of maintaining the integrity of the work over the long haul. It becomes even easier if there's a lot of money to be made by doing it. The law incentivizes you to stay. And because copyright terms last for so long (life of the author plus 70 years), Rowling's great great grandchildren will be able to profit from her work.  And I think it's a shame to keep something like that so closed-source.

To my eyes, the seams are already showing. Three years ago, Rowling publicly stated that she wished she had killed Ron out of spite and that Hermione really should've ended up with Harry. The fact that she admitted this publicly is problematic enough - it shows a tone-deafness to the effect her words have on the fan-base (which is surprising considering her generosity to her fans). It also suggests that she might not have a full grasp of what makes the story work (i.e. that Harry's arc isn't about romance). 

So what should Rowling do? Well, I can't believe I'm saying this, but I think she should follow in George Lucas' footsteps. During an interview in January for his bizarre animated film Strange Magic, Lucas mentioned that he originally envisioned writing and directing Episode VII himself as the first of a new trilogy of Star Wars films. Ultimately, he decided to spend that time with his family instead, so he cut the cord and sold Lucasfilm to Disney. It was a remarkable bout of self-awareness from a man who has typified anything but for so long. When asked if he was involved with the new film, Lucas said that he knew nothing about the story, had seen no footage, and was looking forward to watching it in a theater... as a fan. When you're the author of something popular, knowing when to walk away is a valuable trait, and even though he took some hard knocks getting there, Lucas finally learned it. 

Rowling should walk away from Harry Potter the same way Lucas walked away from Star Wars. She can retain the copyrights to the main story if she wants, but license or sell everything else to Warner Bros for a whole new universe of books, films, and TV shows (she would make a small fortune either way). She can even stay on as a figurehead or elder stateswoman who gets approval over story and design decisions. After all, who wouldn't want to see a series set at an American wizarding school? Or a Quidditch version of Miracle on Ice? Or a trilogy of films about the adventures of the young Dumbledore brothers? 

This would give Rowling the clarity to focus her busy schedule on her Cormoran Strike series (which is being adapted into a BBC television series... my wife is so excited) not to mention her charity. Lucas and Ridley Scott (Prometheus, yecchh.) are poster boys for what happens when you overstay your welcome. It's never a bad idea to go out while you're still on top. 

Dear Artists, Don’t Stick Your Head In The Sand

Imagine one day you decide to start a podcast. You're very excited about your new venture and spend countless hours researching topics, writing copy and setting up your recording booth just so. But you know that if you want people to listen, it needs to be entertaining, and 45 minutes of you talking into a microphone won’t be. It's got to be a real multimedia experience; that's the difference between entertainment and lecture. Among other things, you'll need music, maybe some sound effects, and even archival audio material to spice things up. 

So where do you find those things? And when you find them, do you properly attribute them? Do you request permission to use them and pay a fair licensing fee? If there’s something specific you want, do you make a good faith effort to find the owner, or do you just take it? If you don’ have satisfactory answers to these questions, you may want to rethink your strategy before you hit "publish."

One hallmark of being an artist is excitement about your latest work and a strong desire to get it out into the world. You want people to see it, to comment on it, and hopefully, to enjoy it. Any artist who claims otherwise is lying - to you or themselves. It's easy in that situation to get tunnel vision and let caution fall by the wayside. When momentum is on your side, why get bogged down in administrative matters?

I understand that impulse as much as anyone. I've been an artist (I like to think I still am) and I see it with my clients.  But I want to take this space to urge you, dear artists, not to stick your head in the sand and assume no one will care about those administrative matters. Even if you don’t, I promise you someone else does. I’ve long advocated on this blog for sweating the business stuff because being an artist these days means being a business owner - whether or not its formalized and even if it's not a primary means of income. Using the copyrighted work of another without permission puts you and your business in jeopardy. Maybe not today and maybe not tomorrow, but eventually someone is going to notice, and they're not going to accept "I didn't know" as a reasonable excuse.

It's tempting to pin your hopes on fair use, but the problem with fair use is that to prove you’re covered by it, you need to defend yourself, which almost certainly means thousands of dollars in legal costs. Some courts view fair use as a right, while others view it merely as a defense (which means you can't assert fair use until AFTER you've been sued), but practically speaking, the only way to know for sure whether fair use applies is for the litigation to play out. Just saying the words "fair use" is no more a shield against litigation than yelling "I declare bankruptcy" a way of erasing debt.

We live in a litigious society. And IP holders, especially large corporate ones, have no compunction about hailing little guys into court over minor infractions. Defending yourself will take money you don’t have, and months or years out of your life. Sometimes, companies go bankrupt simply defending themselves in court. I can assure you that even if you win, it’s not worth it.

Which means - let’s say it together - you have to sweat the business stuff. You need to have things like contracts, bills of sale, release forms, licensing agreements, and business bank accounts. It means you probably have to incorporate your business. It means you can’t rely on fair use unless a lawyer tells you it’s okay. It means you have to ask permission to use work you didn’t develop. There’s a lot more to it than that, but you get the gist.

Don’t stick your head in the sand, hoping that ignorance will save you. Pay attention to the administrative matters. Build it into your schedule and workflow. If you hate doing it (welcome to the club), have a friend or spouse or family member help you. I’m not trying to rain on your parade. I’m here to tell you the rain is coming one way or another. I just want to make sure you have an umbrella.

Why Wayne Is The Bad Guy In His Own Movie: Wayne's World And Morality Clauses

Wayne’s World premiered 25 years ago this month and remains a high water mark in modern comedy filmmaking, which is why I guess everyone’s been talking about it lately. I love the movie for a lot of reasons: it’s a fully realized concept, unlike a lot of SNL spinoff films, the comedy holds up on repeat viewings, and it clocks in at a lean hour and a half (I don’t know about you but I HATE the modern trend of bloated two and a half hour comedies… if you can’t say it in 90 minutes or less, you can’t say it).

To celebrate its silver anniversary, HBO has been playing it a bunch, so I’ve had the chance to rewatch it. And while the movie is good as ever, something stuck in my craw this time. Wayne (Mike Myers) is kind of the bad guy in his own film. And the skeezy TV producer Benjamin (Rob Lowe) who the film tells us is the villain is actually on the right side of things. And it’s all because of a contract dispute.

Great. Another movie ruined by being a lawyer.

So anyway, a big plot point in the film is Wayne’s reluctance to giving his show’s sponsor, Noah Vanderhoff (Brian Doyle Murray), a weekly guest spot/interview, a concession Wayne agreed to in his contract. Late in the second act, Benjamin and Wayne butt heads over this issue in what is probably one of the best modern comedy bits in recent history:

Eventually, Wayne agrees to conduct the interview with Vanderhoff, but not before writing offensive remarks on his interview cards, humiliating the sponsor on live TV.  Needless to say, Benjamin isn't happy.

Benjamin: You've publicly humiliated the sponsor.

Wayne: Yeah!

Benjamin: You're fired.

Wayne: Fired? For that? Sh'yeah! Right! I'm out of here, and I'm taking my show with me.

Benjamin: We own the show.

Wayne: Aw, bite me.

Dammit Wayne! This is why you always read your contracts! And not just play-read like you did in that scene where Garth talks about sentient baby tongues.

So there’s two things going on here. First, despite Wayne’s incredulity at losing the show, it’s fairly common for a television network to buy the rights to a show they’re producing. If the creator has a lot of clout, the network will sometimes agree to license the rights instead, allowing the creator to retain ownership. But that’s exceedingly rare these days. They’d rather own it outright so they can control the property and all its ancillary revenue streams like VOD, streaming, distribution, merchandising, and spinoffs. The way the film plays it, it feels unfair (and maybe it is - how would Wayne know that giving up the rights to Wayne’s World is typical? It certainly seems that Benjamin took advantage of his inexperience), but it’s the way the business works. Wayne and Garth would’ve been smart to get a lawyer to look over the contract before signing it.

The second is whether Wayne actually breached his contract, warranting his dismissal. This is a hard call since we haven’t read his contract, but we can make some educated guesses based on the average talent agreement. While Wayne fought Benjamin on the Vanderhoff thing, he did eventually relent and conduct the interview. No one can deny that. So what gave Benjamin cause to fire him? My guess is a morality clause.

A morality clause is a provision found in certain types of employment contracts that forbids the employee from engaging in activities that may reflect badly on the employer. A violation of the clause could result in the contract being terminated. In essence, if you act like a dick and embarrass your employer, you could get fired. Word on the street was that Brian Williams was nearly let go from NBC for lying about past news reports (before being shuffled over to MSNBC) due to a morality clause in his agreement. Allegedly, that clause stated:

“If artist commits any act or becomes involved in any situation, or occurrence, which brings artist into public disrepute, contempt, scandal or ridicule, or which justifiably shocks, insults or offends a significant portion of the community, or if publicity is given to any such conduct . . . company shall have the right to terminate.”

In the movie industry, clauses like these go way back to the 1920's and 30's when the studio system wanted to exert control over movie stars’ ability to socialize, marry, and have babies, any of which - in the wrong light - could bring shame to the studio and cause box office losses. How can that be legal, you might ask? Well, it is because most stuff you contract to do is legal (outside of sex and crime), although hard to enforce and very rarely litigated on. I ran a case law search and turned up almost nothing useful for this blog post.

Knowing what kind of person Wayne was, it was likely that Benjamin would’ve inserted a morality clause into his contract. Now I know I said Wayne was wrong up top, but I’m also not saying that Benjamin is secretly the protagonist of the film. He’s definitely a sleaze ball. He manipulated Vanderhoff into sponsoring a show he wasn’t interested in, he took advantage of Wayne’s naiveté about the TV industry and allowed him to sign a contract he didn’t fully understand, and even if he wasn’t explicitly making moves on Cassandra (Tia Carrere), he did know she was dating Wayne and was spending an awful lot of time cozying up to her. 

But when it comes to contracts, the law is pretty clear that Benjamin was in the right. Wayne bore the responsibility to read and understand his contract before he signed it. He then humiliated his bosses openly and brazenly. In other words, he made his choice. And it’s the choice of a new generation.

*Sips Pepsi*

Mmm! Delicious!

On Making A Good Faith Effort To Get Permisison

Whenever a prospective client tells me they want to use a pre-existing work of art but they couldn't find the artist to ask permission, my first question is, "how hard did you look?" Their responses tells me a lot about them. Is this someone who is genuinely trying but stumped? Or is this a person who isn't interested in doing some hard work? If you've spent any time reading this blog, you know I'm big on getting permission before using someone else's work. First, it's legally much safer for you than relying on fair use. Second, it's just good karma. This is one arena where I'm not an adherent of Grace Hopper's immortal quip, "It is better to beg forgiveness than to ask permission."

You don't want to get sued for copyright infringement, which is why you should always ask permission before using someone else's work. And a cursory effort isn't going to cut it. No, you need to make a "good faith effort." In the law, we generally define that as what a reasonable person would determine is a diligent effort to produce a desired result. In other words, you need to do more than a quick Google search before calling it quits. It's tempting to think that because access to the internet is so ubiquitous, everyone must be online and instantly reachable. Unfortunately that's just not the case. Sometimes artists are hard to find, which means you gotta do some real sleuthing. 

So what does a good faith effort look like in the real world?

1. You have to determine if the rights are still owned by anyone. Generally speaking, art made prior to 1923 is in the public domain and therefore owned by no one. But even if you suspect that's the case, do the research anyway. You don't want to be sued by the estate of a long-dead jazz musician just because you assumed his work was up for grabs.

This chart is a useful tool to get your mind oriented around the issue. You should also use as many research tools as you (and your wallet) feel comfortable with. Google is a good place to start but not the be-all/end-all. There are private copyright search companies you can hire. You can hire a lawyer. You can also do a search through the Copyright Office database (as well as the Writer's Guild if the work is written) to track down ownership over a specific piece of work.

I should note that these tools will only help you determine if a work of art has been registered or published. Any work that hasn't been will require some more creative investigating on your part, I'm afraid.

2. You have to get in touch with the owner. This is where things usually fall apart for many of the people who contact me. Unfortunately there's no guaranteed way to find someone, especially if they don't want to be found. Certainly, you can start with the tools I mentioned above, and if the work is registered somewhere, there's usually some contact information associated with it. But ultimately, you may just have to call around.

I once had a client try to get in touch with a reclusive painter who had virtually no online presence. But through an exhaustive Google search, the client found a gallery in New Mexico that was selling some of that artist's paintings and with a little prodding, got the gallery to put her in touch with the painter.

Sometimes artists have managers or agents and you have to make contact through them instead. Go online and see if you can drum up client lists for some of those agencies. Maybe some of the rights to the work have been sold or licensed to a third party. Contact them and see if they can put you in touch. Maybe the artist is giving a lecture at a local university. Go to the lecture and try to meet him or her in person.

There's a fine line obviously between stalking and diligence and I strongly recommend you hew towards the latter. I don't recommend going to the Whitepages and soliciting them at home since that's pretty creepy and they probably won't respond well to it. But a communiqué sent through appropriate professional channels is okay.

As you can see, there are a lot of options open to you. You might have to get creative, and periodically do a gutcheck to see if what you're doing violates social norms, but these are all strategies you should consider before giving up.

3. Lastly, when you do get in touch, be nice, be friendly, but be direct with your ask. Don't waste their time and don't overstay your welcome. Get what you want, IN WRITING, pay for it, and get to work. There's no guarantee they'll cooperate, but if you act like an entitled brat, that's a surefire way to guarantee they won't.

Ultimately you may not find the artist, or you may find them and get no response. At that point, proceeding with their work becomes a question of risk. Did you make enough of an effort? Does fair use apply to the way you want to use the work? Before you make a judgment call on either of those questions, talk to a lawyer first. Making a good faith effort to find the artist and ask permission can sometimes be hard work, but from my seat it's critical to keeping your karma good and your ass out of court.