Zigkeyeah Collier CMST-223 Kovalcheck December 2, 2010 Originality, Imitation, and Copyright “He who imitates must have a care that what he writes be similar, not identical”- Petrach, Le familiari, XXIII (14thc) The foundation of the copyright law is built on the principle and idealistic American value of originality. Recognized as a Western ideal and value in the 18th century, originality is culturally constructed and accepted, but not truly defined, as an aspect of a created work that is deemed new or novel and is distinguishable from reproductions, copies, or other derivative works.
In law, originality has become an important legal concept with respect to intellectual property, where creativity and invention have manifest as copyrightable works. Therefore, the institution of the copyright law protected originality by deeming a piece of work to be paramount while reducing all derivatives to copies or imitations. However, the extent of protection that the copyright law carries is limited, for the copyright law does not protect ideas, themes, or subject matter, only craftsmanship or form (Alfrey, 2000).
As a result, under the law two identical pieces of work are able to claim protection, provided the effort behind each work is discernibly independent of one another. There is no statutory definition of infringement, just as there is no statutory definition of originality. However, copying, even if unintentional, can still surmount to a conviction of infringement. Proof must then “rely on circumstantial evidence, which requires scrutinizing the manner and sequence in which the artist worked” (Alfrey, 2000).
In other words, the perpetrator must supply sufficient evidence showing that no intention was made to copy the “essential quality of a particular work” causing an unfair advantage of effort of work from the predecessor (Alfrey, 2000). Yet the legality aspect of originality does not linger on similarities and differences in artistic merit, but focuses solely on the illicit reproduction and replication of style and form. The legal system differentiates imitation from copying by delineating the two into separate actions.
Petrarch an Italian scholar, poet, and “Father of Humanism” best compares the two forms of action in his piece Le familiari when he writes: “He who imitates must have a care that what he writes be similar, not identical . . . and that the similarity should not be of the kind that obtains between a portrait and a sitter, where the artist earns the more praise the greater the likeness, but rather of the kind that obtains between a son and his father . . we (too) should take care that when one thing is like, many should be unlike, and that what is like should be hidden so as to be grasped only by the mind’s silent enquiry, intelligible rather than describable. We should therefore make use of another man’s inner quality and tone, but avoid his words. For the one kind of similarity is hidden and the other protrudes; the one creates poets, the other apes. ” (Petrach, Le familiari, XXIII)
Imitation is distinguishable from copying in that it allows the imitator a certain amount of freedom to move in any artistic direction desired as long as he does not directly quote from the from a specific piece of work without acknowledgement. In contrast, the action of copying is a form of direct reproduction with little to indistinguishable differentiation from the original piece of work. The ancient philosopher, Plato, created a mythical being he called the simulacrum (Plato, 1984).
Found within the lowest ring of in the hierarchy of the arts of producing a work, the simulacrum is able to re-image itself, in an attempt to double any figure it chooses. The simulacrum, however, is not able to completely model or replicate itself exactly like the first figure, but only able to portray a “distant semblance”, so that the doubled figure seemingly looks copied but is different or imitated and thus corrupted (Striphas, 2009).
Although the simulacrum does not replicate an exact copy of the first figure, its false portrayal creates a blurring of the boundary lines separating the definitions of what is considered original and by default what is regarded as a derivative, resulting in the questioning of what truly constitutes a work as original and if originality is able to exist. The 2000 Harry Potter trademark and copyright infringement case entitled, Scholastic, Inc. , J. K. Rowling, Time Warner Entertainment Company, L. P. . Nancy Stouffer, best exemplifies the contested problems the figure of the simulacrum can cause when determining originality, yet also show how the concept of simulacra can be used in the legal realm to support the copyright law and intellectual property rights. The Scholastic, Inc. et. al. v. Stouffer case began in August of 1999, when Nancy Stouffer and her lawyers requested that she receive compensation from Scholastic Inc. , the American publisher for the Harry Potter series by J. K. Rowling.
She alleged that many of the physical attributes of Harry Potter as well as terminology presented throughout the book, such as the word “Muggles” were “willfully borrowed without permission, or copied, from her own books entitled the Legend of Rah and the Muggles which had been published in 1988 or a decade earlier (Stouffer, 2001). Stouffer then argued that she was the only one who held ownership rights to the word “Muggles” and therefore was the only one who could license it (Scholastic et. al. v. Stouffer, 2000).
Although it seems reasonable that Stouffer would be the one to file suit, in November of 1999, it was Scholastic, Inc. that filed a case against Nancy Stouffer, in order to get a “declaratory judgment that they had not infringed and are not infringing any of…Nancy Stouffer’s copyrights or trademarks” (Scholastic et. al. v. Stouffer, 2000). Strategically, this made Stouffer the defendant and required that she bear the burden of proof, and it was Stouffer that had to present evidence declaring that her works were the original and not the simulacrum and therefore required protection of original ownership under the law.
To build her defense, Stouffer presented six key pieces of evidence each having copyright dates of 1988 and older while also showing a title with the lucrative word, “Muggle” and pictures of her character called, Larry Potter, which had a very strong resemblance to Rowling’s Harry Potter (Scholastic et. al. v. Stouffer, 2000). Stouffer’s case seemed solid, except she lacked one important piece of evidence that showed J. K. Rowling “willfully” copied her work and violated her intellectual property rights (Scholastic et. al. v. Stouffer, 2000).
This is important because only structural replication, not ideas and themes, are protected under the copyright law and are accepted as infringement in cases of right to intellectual property. Seemingly, Stouffer’s defense case was solid; however, Scholastic’s team of attorneys implemented the idea of simulacra to denounce Stouffer’s evidence as fraudulent and corrupt. The team showed through several feats of incredible engineering that the words “The Legend of” and “the Muggles” were printed in ink and through technology that was only available in 1991 or later.
They also found that an advertisement found in a magazine that Stouffer had presented as evidence was a reconstructed version of the original ad, which Scholastic’s attorneys presented to the court. The advertisement endorsed a book entitled “Rah” instead of “The Legend of Rah and the Muggles” which was on the falsified version Stouffer presented. Lastly, they discredited photocopies and a paragraph from a book mentioning the name of the alleged Larry Potter, by again proving that the inks used in the photos were not produced until sometime after 1991 or 1992 (Scholastic et. al. v. Stouffer, 2000).
The Plaintiffs had not particularly shown that Rowling’s work was original, but had successfully unveiled the simulacrumatic nature of Stouffer’s work deeming it unoriginal as well. This resulted in the court decision that the “Plaintiffs’ publication, distribution, and exploitation of the Harry Potter books do not violate any of Stouffer’s intellectual property right. Stouffer is permanently enjoined from making false representations to third parties indications that she owns all right in the “Muggle” and “Muggles” trademark and copyrights, indicating that plaintiffs have violated her intellectual property rights”. Scholastic et. al. v. Stouffer, 2002) Yet, what is most interesting about the case is that Stouffer had some legitimate evidence that in 1992, she had successfully contested for trademark registration for the word “Muggle”, in 1986, she had copyrighted and illustration of a Muggle character, and in 1987 she copyrighted a song called “Muggle-bye” which was placed with the book “Rah” (“’Harry Potter’ book lawsuit”, 2000).
Unfortunately, the court dismissed this evidence after learning that Stouffer not only failed to register the word with the federal trademark office until February of 2000, but also that Rowling acquired her term “Muggle” from an English slang word, meaning “easily-fooled” (Bone, 2000) and Stouffer had acquired her term “Muggle” from a nickname which she oftentimes called her son (Scholastic et. al. v. Stouffer, 2002). Again, the court does not care so much about ideas or themes in context, but the craftsmanship, acquisition, and form of the content.
Since both women had crafted the term “Muggle” from different perspectives, the court decided that the word could have no since of specific origin and therefore void of any sense of originality, so even Scholastic, Inc. could not trademark the word. There are many other instances outside this case where the word Muggle appears (Thomas, 2000). So in the absence of an origin, all the instances where the word “Muggle” can be found can be deduced as all the same…but different (Striphas, 2009).
The copyright law cannot be based on absolute uniqueness, but must recognize originality in terms of “firstness in order” to separate two works that seem identical or “substantially similar” (Gaines, 1991). In the scholastic case, the origin of the word Muggles were so dissimilar that a judgment in firstness in order could not be rendered. Therefore, simulacra, or the idea of imitation, should have business in the legal realm since it only causes confusion and problems, but from the aforementioned case of Scholastic et. al. v.
Stouffer the simulacra does not always have to operate outside or against the law but can be used as an “instrument to secure exclusive property claims as well” (Striphas, 2009). Originality, if it exists at all, is not an absolute; its identification is subject to a scale of relative values and knowledge, it is conditional to time and place. It must be measured against its imitators. However, the development of the idea of individualism elevates the value of originality and, at the same time, blurs its definition (Alfrey, 2000).
Individualism has continually encumbered many generations of artists and creators with the increasingly elusive search and goal of achieving originality. As more ideas and their expressions are generated with each passing year, originality becomes more rare and imitation more present with the use of precedent becoming more insistent and inescapable.
Works Cited Alfrey, Penelope. “Petrarch’s Apes: Originality, Plagiarism and. ” MIT Communications Forum. MIT, 2000. Web. 02 Dec. 2010. . Bone, J. “Magical Authors Go to War on Custody of Muggles. The Time (2000). Lexis-Nexis. 18 Mar. 2000. Gaines, J. “Contested Culture: The Image, the Voice, and the Law. Chapel Hill: University of North Carolina Press, 1991. “‘Harry Potter’ book lawsuit: “Legend of Rah and Muggles” author claims trademark violations”. Burden of Proof. 5 Jul. 2000. Web. 01 Dec. 2010. . Petrarch, Le familiari, XXIII, quoted in Gombrich, E. , “Norm and Form: Studies in the Art of the Renaissance”. Phaidon Press, 1966. 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. Scholastic, Inc. , J. K. Rowling, and Time Warner Entertainment Company, L. P. v. Nancy Stouffer. 99 Civ. 11480 (AGS), 221 F. Supp. 2d 425 (S. D. N. Y), 2002. Striphas, Ted. “Harry Potter and the Simulacrum: Contested Copies in an Age of Intellectual Property. ” Critical Studies in Media Communication 26. 4 (2009): 295-311. Thomas, I. “CNN is Mugged by the ‘Muggle Affair. ’” Slate. 21 Jul. 2000. Web. 01 Dec. 2010 .