The Subtle Irony of Cultural Property in Harry Potter and Cultural Property IN Harry Potter 4

One of the many projects I have been working on this summer is writing a paper on the Property theory present in the Harry Potter novels (titled When Chattels Choose).  One of the truly interesting things about property represented in Harry Potter is the ambiguous relationship of ownership to the property. In the legal world, we see ambiguity in property most visually resolved in torts landscape — nuisance as the ever developing tool of property allocation.   We could even argue (as I will later this year) that nuisance theory is quite akin to intellectual property disputes.

For now, lets turn to how property disputes are resolved in the Harry Potter world.  Consider all the property that is described in the magical world — just about every piece of property may be reoriented to new ownership, even without the express consent of the “owner” — a choice of the chattel, we might say that alleviates the need for disputes. Let me offer just a few examples:

  •  After Sirius Black dies and Dumbledore informs Harry that he is the heir of 12 Grimmauld Place, Dumbledore considers it questionable whether Harry is actually entitled to Grimmauld place and asks Harry to perform a simple test to determine his legitimacy.   The property orients itself to its proper frame of ownership, regardless of the will of the previous owner and notwithstanding the acts or non-acts by the party actually entitled to ownership.  See Harry Potter and the Half Blood Prince
  • Wands “choose” the master.   And wands may be reoriented if “captured” properly.  Consider the distinction between Harry disarming Draco Malfoy to become the master of all wands that Draco Malfoy was master of (including the Elder Wand) and Voldemort killing Severus Snape expecting to become master of the Elder Wand thereby.   The wand simply chose whose conquest mattered more for the purposes of its loyalty.  See Harry Potter and the Deathly Hallows 
  • The Sword of Gryffindor is described as cultural property by two different characters. First, the Minister of Magic Scrimgeour, after informing Harry that he was given the Sword as a part of Dumbledore’s will, later informs him that the sword is not susceptible of ownership.  Rather, the sword is cultural property which may present itself to any Gryffindor.   Interestingly, the Goblin Griphook describes the sword as cultural property, though not that belonging to Gryffindors, but belonging to Goblins, since they made the sword.  The sword apparently chooses the cultural affinity of its ownership by choosing Harry and then later choosing Neville Longbottom.  See Harry Potter and the Deathly Hallows
  • Snitches (the golden balls used in quidditch games are said to have “flesh memories. As Scrimgeour says to Harry: “ A snitch is not touched by bare skin before it is released, not even by the maker, who wears gloves.   It carries an enchantment by which it can identify the first human to lay hands on it, in case of a disputed capture.  This snitch” — he held up the tiny golden ball – “will remember your touch, Potter.” Harry Potter and the Deathly Hallows

There are no doubt others, but what seems clear is that property has the capacity of choice in the world of Harry Potter.  That impartial choice acts as the great equalizer that by forcing “fair” redistribution of property according to certain characteristics and with certain presumptions of fairness.  First, it seems the the magical world is not adverse to basic rules of construction that equate to fairness.  First capture of the snitch equates to fleshly connection upon first capture; capturing a wand fair and square gives one rights in the wand (and others apparently); and property may be passed from one wizard to another according to expectations that they have.  These rules are mirror images of our world of property allocation with the exception that magic alleviates the need for dispute resolution — the property simply knows to whom it should belong.  Unlike a fox or whale, which may be fairly disputed who began the pursuit, who caused the capture, or whether the party who secured the bounty did so fairly, the magical world’s fairness quality is determined not by ambiguity, but by clearly choosing chattels.

What caught my attention, though in thinking through this scheme is the irony of property choice theory that ceases to exist outside Rowling’s magical world.  Again, consider the most obvious form of cultural property — the Sword of Gryffindor.   One could draw an analogy to Rowling’s own work as being cultural property — surely Harry Potter is very much with all of us as it was with Rowling for so long.  So when a pair of seemingly different (but inextricably similar) lawsuits involving JK Rowling’s intellectual property in Harry Potter surfaced in 2010, one could not help but wonder about the irony.

In the first lawsuit, holders of the copyright to Adrian Jacob’s book Willy the Wizard  sued Rowling for Plagiarism claiming that many elements were taken from his earlier (1987) book, including elements of the plot in Goblet of Fire, the presence of the Wizarding Train, a wizarding prison, and human hostages inside a bathroom.   In the second lawsuit, Rowling herself along with Warner Brothers brought a lawsuit against a New York Librarian who operated the Harry Potter Lexicon Website after the website began promoting a print version of its website.    Slate.com offered the following analysis of the second lawsuit:

For a fan to write this kind of entry, Rowling says, is to “take the author’s hard work, re-organize their characters and plots, and sell them for their own commercial gain.” But that’s ridiculous. This and other entries aren’t, as Rowling seems to suggest, anything like an abridgment of the originals. No one would read the Lexiconas a substitute for the Potter books; it is useless unless you’ve read the original, and that makes all the difference.

These two examples offer a crash course in the dissonance that exists between Rowling’s magical world and her non-magical world.  Arguably, the magical world would have a means of chattel based choice to decipher the propriety of the actions.   Unfortunately, the law offers no perfect wisdom like that of chattel-based choice.   I might argue that Rowling takes on both characteristics in the disputes around the Sword of Gryffindor in her two law suits.  In the plagiarism suit, Rowling appears to be the wide-eyed, perhaps naive recipient of cultural property, claiming innocently, that they simply chose her as a worthy recipient.  What defines the rightful wielder of the sword is courage in the novels — courage, which no doubt Rowling took on in publishing her stories from the outset.   But in the latter case of copyright, Rowling seems to take the disposition of the more calculating goblin Griphook, claiming her entitlement to own, and therefore prevent others from claiming an interest in her cultural property.

What we do know is that artists use and reuse the works of others. This is clearly described in works far and wide — as scholarly as Jamie Boyle’s The Public Domain, Larry Lessig’s Remix, and blog writers the world over.

Comments are welcome.

4 comments

  1. There’s the issue of sentient chattels that “choose,” but some of this may be explained by the fact that free alienability is not a necessary component of a property scheme. In the middle ages the owner of a great estate often had no power to alienate it; an earl could no more decide who would get the earldom when he died than he could have grown wings. Only the “legitimate” heir was entitled. Such chattels as family jewels and heirlooms could not be alienated (see Trollope’s “The Eustace Diamonds” for a great example) but could only descend to the rightful heir, even if the present “owner” strenuously objected.

    I think this idea that property has a “true owner” rather than being freely alienable is one of the really medieval things about the Potter books, in common with its economy (which seems to forbit the lending of money at interest), its military system (in which a single highly skilled warrior beats a horde of peasants every time), and its heavy preference for personal loyalty to family over the needs of the state. Some of the property issues are touched on in the essays by Eric Gouvin and Heidi Mandanis Schooner in the “Harry Potter and the Law” book.

  2. Indeed Frank. One might even harken an analogy between the transfer of property in Harry Potter and the concept of the “just price” in medieval law. Thanks for commenting.

  3. Pingback: Follow up to Harry Potter and Cultural Property: Goblins as Allegory « The Literary Table

  4. Brilliant! The idea of owning sentient things is a bit disturbing, the more so given the treatment of house-elves. At least the non-sentient chattels – the Galleons Harry’s parents leave him, for instance – act like chattels in our world. And at times the “will” of the sentient chattels can be over-ridden, as with Draco’s wand. But at times the chattels can play their own game: Hermione and Harry go to great lengths to thwart the efforts of the (stolen) portrait of Phineas Nigellus to find out where it is, because they believe it would report their location to the bad guys. In fact the portrait is working for Severus Snape, and when it finally finds out its location, it reports to him… so that he can deliver another sentient chattel, the sword of Godric Gryffindor (which is in his possession, though he is neither a goblin nor a Gryffindor) to Harry, so that Harry (or, as it turns out, Ron) can use it to destroy yet a third sentient chattel, the locket of Salazar Slytherin, which Voldemort has turned into a horcrux. It would be interesting to see the story from the point of view of the various magic chattels; perhaps they see themselves as the actors in the story and the human and humanoid characters as objects they manipulate to serve their purposes.

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