Harry Potter' s under attack. Not from one of his traditional archenemies, such as Draco Malfoy, but from a new, strange breed of Internet author known as a slasher.
In Internet parlance a slasher is a writer of a specific genre of fiction which differs from the mainstream in that the main characters are "borrowed" from other authors and then manipulated into bizarre (but often non-explicit) sexual encounters. Characters used for slash fiction can come from television, film or books, with characters from Buffy the Vampire, Star Wars and Harry Potter currently being popular.
When AOL Time Warner paid a "substantial seven figure sum" for the rights to the first two books in the Harry Potter series in 1999 they had bought into possibly the biggest phenomenon that the world of children' s literature has ever seen. Now, in the lead up to the first Harry Potter movie scheduled for release in November, studio executives will undoubtedly want to take whatever steps they can to maintain the squeaky clean image of the young wizard-in-training.
Following reports that Harry Potter features in hundreds of slash stories, Warner Bros [has already / is already reported to have] issued a statement that they consider it to be their obligation to protect their intellectual properties and that they are considering all their options. Their available options will depend on the country in which the slasher and his or her ISP are based.
In Hong Kong, the most obvious legal action against a slasher would be for trade mark infringement based on the registrations which Warner Bros presumably holds for the "Harry Potter" name as a trade mark. However, in an action for trade mark infringement it would be necessary to show that the Harry Potter name has been used by the slasher as a trade mark (i.e. as an indicator of who has produced the fictional work), rather than simply as the name of a character who appears in the story. In many cases, this would be very difficult to prove.
Another option available to combat slashers would be to take action for passing off based on an argument that readers of the slash story would be confused into believing that it has originated from Warner Bros / JK Rowling. Many slashers preface their works with clear statements that their stories are for adults only and that they are not associated with or authorised by Warner Bros or JK Rowling. However, if, say, a 10 year old enters the Harry Potter name into a search engine and then comes across a slash site, would he understand the meaning of the disclaimer or would he be confused and read the story as if it were from the author herself?
It would be down to Warner Bros to produce evidence to the court that people do indeed believe that slash fiction is for real. However, one suspects that, given the content of some slash fiction sites, a court would give some leeway to Warner Bros.
JK Rowling may also seek to take action herself, based on her moral rights in the Harry Potter books. These rights entitle JK Rowling, as the author of her books, to go to the courts to prevent the derogatory treatment of her stories. An action on this basis would be quite novel and, again, the court may well be sympathetic to such a claim. However, as a matter of strict law, it is necessary to distinguish between the derogatory treatment of Harry Potter the fictional character and Harry Potter the story. In most cases, slash fiction bears no resemblance to the original story and, accordingly, it would be difficult to argue that the story itself has been treated in a derogatory manner.
Independently from any action which Warner Bros or JK Rowling may choose to take against slashers, the police may consider that a criminal offence displaying of " indecent matter" has been committed under the Control of Obscene and Indecent Articles Ordinance. In order for the court to convict a slasher for such an offence it would have to be satisfied that the material in question is indeed indecent. Of particular relevance to this question is the explicitness of the material and the age of the persons who are likely to read it.
Hong Kong has a history of taking a harsh line on indecent material and, accordingly, anyone in Hong Kong who is responsible for publishing slash stories will risk criminal charges. This would particularly be the case when the characters featured in the slasher' s story are, like Harry Potter, very familiar to children.
The extent to which the authorities and individual rights owners are willing to take action against slashers remains to be seen. Much will depend on the nature of the slash site in question including the explicitness of the material contained on the site and its likely audience given the characters which it features and its availability through search engines. However, whether or not action is taken, some slash will doubtless remain. It's a weird, weird web, that's for sure.
An edited version of this article was first published in South China Morning Post on 22 September 2001.