Learning by Doing Madhavi Sunder
Total Page：16
File Type：pdf, Size：1020Kb
Draft September 2013 Learning By Doing Madhavi Sunder∗ “Tell me one last thing,” said Harry. “Is this real? Or has this been happening inside my head?” “Of course it is happening inside your head, Harry, but why on earth should that mean that it is not real?” -- Harry Potter and the Deathly Hallows1 “Wouldn’t it be great if Camp Half-Blood was a real place?”2 So said Topher Bradfield, the children’s activity coordinator of an independent bookstore, BookPeople, in Austin, Texas in 2006, to an audience of young listeners at a dramatic reading of the wildly popular children’s fiction book, The Lightning Thief, by Rick Riordan. The New York Times bestseller chronicles the adventures of one Percy Jackson who learns at the age of 12 that his strange abilities (he can stay underwater for a long time) are the result of his mixed parentage—his father is the Olympic sea god, Poseidon. Percy and other young demi-gods are sent to Camp Half-Blood to train and embrace their destiny. BookPeople sought to capitalize on the book’s popularity by creating a real-life Camp Half-Blood. The camp is held in a state park, with counselors playing the roles of centaurs and Olympic gods, leading young “demi-gods” through epic adventures based on their shared passion for Greek mythology. These book campers don’t just flip through pages; they fight with foam swords, race chariots, and collaborate to save the world. This summer some 600 kids from around the world clamored to get in.3 Similar, book- themed camps based on The Lightning Thief and everything from The Little House on the Prairie to Harry Potter have popped up around the country. Camp Half-Blood epitomizes a shift in the nature of both consumption and entertainment. In today’s economy, “goods and services are no longer ∗ Professor of Law and Martin Luther King, Jr. Research Scholar, University of California, Davis. Special thanks to Bruce Ackerman, Greg Alexander, Michelle Anderson, Jack Balkin, Mario Biagioli, Anupam Chander, Tom Conley, Francesca Coppa, Joe Dumit, Laura Grindstaff, Michael M.J. Fisher, Peter Menell, Martha Nussbaum, Kriss Ravetto, Jennifer Rothman, Brian Rotman, Joseph Singer, Rebecca Tushnet and the faculty at the University of Minnesota School of Law for engaging conversations on commodification, embodiment, performance, flashmobs, and Quidditch. Thanks also to all of the participants in the “Intangibles: Immaterial Vectors, Agents, and Effects” conference at the Harvard Humanities Center and to the participants at the “Progressive Property Scholars” workshop at Harvard Law School. 1 J.K. ROWLING, HARRY POTTER AND THE DEATHLY HALLOWS 723 (2007). 2 Telephone interview with Topher Bradfield, BookPeople, August 19, 2012. 3 Id. See also Sharon Otterman, At Camp, Make-Believe Worlds Spring Off the Page, NY TIMES, July 16, 2010, available at http://www.nytimes.com/2010/07/17/nyregion/17camp.html?_r=1. enough.”4 Today’s consumers demand experiences.5 From Star Wars to Harry Potter, fans do not just want to watch or read their favorite characters. They want to be them. They want to don the robes of Gryffindor, flick their wands, and drink the butterbeer. As The Economist observes, consumers are made happier through “’experiences’ over commodities, pastimes over knick-knacks, doing over having.”6 The owners of fantasy properties understand this. In the 1970s George Lucas put light sabers in children’s hands. Today, Warner Bros. has the Wizarding World of Harry Potter theme park in Orlando. While child’s play in fantasy worlds is not new, “what is new … is that experiences represent the basis of economic activity.”7 The explosion of participatory experiential activity extends to a range of contemporary activities, from karaoke to flashmobs, YouTube to Comic-Con.8 To date, much of this elaborate fan activity appears to take place without licenses, perhaps outside even the shadow of the law. Thus far, the owners of copyrights and trademarks in popular fantasy worlds have largely condoned or “tolerated” fan activity.9 (One enterprising couple hosting a Star Wars wedding sought to cover themselves legally by inviting George Lucas to the party. He rsvpd no.) Why have IP owners, who claim the rights in everything from fictional characters to cultural merchandise (such as lightsabers and wands to games and costumes) based on their stories, largely failed to sue those engaged in such cultural activities based on their works? One might suggest two rationales: first, these activities increase the demand for their commodities, and drive a more impassioned fan base; second, sending cease and desist letters can quickly turn fans’ love into anger.10 The emergence of an experience economy may lead some owners of cultural property to reconsider their laissez-faire attitude towards play. I seek here to anticipate this effort, and to explain why law should resist it. To do so, I turn to contemporary cultural theory. I examine theories of learning and performance, including those of Kenneth Arrow, Michael Polanyi, Peggy 4 B. JOSEPH PINE II & JAMES H. GILMORE, THE EXPERIENCE ECONOMY ix (2011). 5 The rise of modern brands follows this logic – Starbucks is not about the coffee alone. Indeed, its new logo drops the word coffee altogether. 6 Economics Discovers Its Feelings, THE ECONOMIST, Dec 23, 2006, at 34. 7 To take a common example, “in previous eras people rarely if ever bought birthday parties ... [but] today they do so regularly.” Pine & Gilmore, supra note 4, at xix. Entertainment is shifting from the sale of commodities alone to the sale of accompanying experiences. Birthday and dinner parties are just the beginning. There are Harry Potter Weddings, Hunger Game weddings, Twilight weddings, Superman weddings, Shrek weddings, and Star Wars Weddings. As the historian Michael Saler describes, today many people, both adults and children, are “living in imaginary worlds.” MICHAEL SALER, AS IF: MODERN ENCHANTMENT AND THE LITERARY PREHISTORY OF VIRTUAL REALITY 18 (2012). 8 Comic-Con refers to dozens of comic book fan conventions around the world, and in particular to the largest U.S. convention held annually in San Diego since 1970. 9 See Tim Wu, Tolerated Uses, 31 COLUM. J. L. & ARTS 617 (2008). 10 See id. 2 Phelan, Philip Auslander, and Martha Nussbaum. Scholarship on the law of cultural merchandising has thus far largely ignored cultural analysis; I seek to rectify that here. For those who believe that I am making a mountain out of molehill, I suggest that history offers a sobering lesson. Prior to the 1970s children’s play was largely free of royalty payments, the stuff of homemade Cinderella ball gowns and unbranded toys. Today, we must pay to play. Make no mistake: today child’s play is serious business. Over the past three decades the phenomenon of putting oneself into the story has emerged into a hundred billion dollar-a-year enterprise around a legal right to exclusively license “cultural merchandise.” 11 Cultural play increasingly involves “officially licensed” cultural merchandise, from lightsabers to wands, Darth Vader masks to Harry Potter glasses, action figures to wizard’s and witch’s fare to taste. This market only promises to grow in light of new media offerings of ever more elaborate modes of play, including interactive video games and web portals, such as Pottermore. Cultural merchandising is so profitable it drives cultural production itself, with Hollywood studios choosing which projects to pursue based in part on the merchandising potential of the film or television series.12 This should not come as a surprise—the proceeds from merchandising can exceed sales of the underlying works themselves: The Lion King film? $952 million. The Lion King experience? $1.5 billion. Any periodization of the new merchandising and experience economy will find at least two time periods, cleaved by Star Wars. Prior to the first Star Wars film’s debut in 1977, entertainment products based on shows such as Howdy Doody in the 1950s, Star Trek in the 1960s, and The Six-Million Dollar Man in the 1970s were licensed for use on a variety of products, from toys, to lunch boxes, to T-shirts. But total retail sales for all merchandising products in 1977 were just under $5 billion annually.13 The release of Star Wars was “the watershed of modern merchandising,”14 with the first trilogy itself accounting for about $4 billion in merchandise sales, “nearly double the ticket revenues of the original movie trilogy.” 15 As a treatise on the emergent law of 11 1 Entertainment Law 3d: Legal Concepts and Business Practices §4:24 (“Licensed merchandise is a $100 billion-per-year industry.”). This number includes universities and sports team logo licensing. 12 Law of Merchandise and Character Licensing §2.8. 13 Raysman, et. al., Intellectual Property Licensing: Forms and Analysis, IPLFA s 9.01, 2003 WL 22128186. 14 Id. 15 James T. Madore, Lego Banking Toy Line on ‘The Force’, NEWSDAY, Feb. 10, 1999. 3 merchandising notes, “After Star Wars, merchandising grew exponentially.”16 The Harry Potter brand is estimated to be worth $15 billion.17 A commonplace assumption of the entertainment industry today is that intellectual property owners have an absolute right to fully exploit their copyrights and trademarks in a variety of media well-beyond film rights, including toys, video games, theatrical plays, and even theme parks. 18 If anyone is playing with a popular universe, they are doing so only at the sufferance of the copyright and trademark owner. There seems to be popular appeal to the notion that Rowling and Warner Bros. should have the right to control some derivatives from the Harry Potter series, including video games, theme parks, and Lego sets. Courts and laypeople alike seem to share a feeling “that authors should be granted the ability to control the use of their creations.