Fanfiction and Fair Use

Abracadabra! v.
Avada Kedavra
Fanﬁction, First Amendment Rights,
Fair Use and J.K Rowling’s Harry
Potter Series
Jessamyn Lidasan
1Tuesday, December 1, 2009

What are fan made works?
Fan made works are creations that rework and revisit
familiar settings or characters into new situations.
Fan made works can include songs, drawings, video
mashups, fanmixes and much more.
Fanﬁction, or fanﬁcs, or FF, are literary works that are made
by fans. These works are based on already existing literary
characters or settings.

Historical Contexts
People have probably been making fanfiction even before
the printed word. Storytellers would create stories out of
characters they could draw upon from other works.
1960s and Spockanalia brings the first major fanzine for Star
Trek fans. Fans would create their own fan magazines and
fanfiction would have their own section in the magazine.
Modern day myths and the myth tradition.

The Internet is for fanfiction?
The Internet played a huge and undeniable role in the
acceleration of the popularity of fanfiction.
Fanfiction.Net was launched in 1998, and it is still the largest
fanfiction website in existence.
As of December 1st, 2009, there are 431,931 Harry
Potter fanfics hosted on Fanfiction.Net.

Why study Harry Potter?
While many other mediums have been immortalized in
fanﬁction (Buffy the Vampire Slayer, Star Trek, Lord of the
Rings), Harry Potter had the fastest and most visible growth
on the Internet. Harry Potter has also been the subject of
many other copyright and fair use disputes.

Harry Potter and the. . .
Harry Potter and the Man of the Unknown is the first
documented Harry Potter fanfiction on Fanfiction.Net.
There were (and still are) many fanfiction websites, but
websites such as Fanfiction.Net, Fiction Alley and Sugar Quill
were the three main fanfiction websites at the peak of the
fan culture (circa 2000).

“Creativity is Magic!”
These stories hosted on this website contain characters created and owned by J.K. Rowling,
Bloomsbury Publishing, Scholastic, Inc. and AOL/Time Warner, Inc., and may incorporate
characters, locations and things created and/or owned by other third parties including but not
limited to Joss Whedon, George Lucas and/or Lucasﬁlm, Fox, Paramount, Random House,
Penguin Putnam, Inc., Ballantine Books, and a lot of other people. No permission has been
given and since no money is being made here, no infringement is
intended.
We also note that Section 102(b) of the U.S. Copyright Act makes
it clear that copyright protection does not extent to ideas,
procedures, concepts, principles or discoveries - only the actual
words used to express those things.

Section 102(b)
(b) In no case does copyright protection for an original work
of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained,
illustrated, or embodied in such work.

Core of the Argument
Fans argue that since they are not making any money and do not
intend to infringe on the original work, that they should be free
from liability.
On the other hand, critics argue that fanﬁction should not be
protected by copyright law, and that it is in fact infringing on fair
use law.
What parts of the work are protected by copyright and trademark?

It is not clearly deﬁned in the law whether the following
things are protected under copyright:
+ worlds
+ characters
+ histories
+ names

So what is the problem?

Arguments For Fanﬁction
Another way to engage with the original work.
It keeps fans interested in the work.
Some writers are ﬂattered that their work inspires people!

Arguments Against Fanﬁcs
Why can’t they just make up their own characters?
I don’t want my work associated with their culture!
What if they are making a proﬁt off of my work?

NC-17 Harry Potter?
Drawn upon the beginnings of modern fanﬁction (Kirk/Spock), the
act of “slashing” two characters has been quite common.
“Slashing” or “shipping” is the act of portraying two characters in a
romantic relationship, very often homoerotic.
The most popular “slash” pairings throughout the heyday of HP
Fanﬁction includes: Harry/Hermione, Ron/Hermione, Draco/Ginny,
Harry/Draco, Harry/Ron, Harry/Snape (!), Fred/George (!) and any
combination of Remus/Sirius/James/Peter/Snape

NC-17 Harry Potter?
“Adult content” can include sexually explicit material as well
as inappropriate relationships.
Fanﬁction authors have come under scrutiny for creating
“adult content” out of works marketed to children. However,
they are protected by the 1st Amendment.
Adoption of the MPAA ratings system.
Age veriﬁcation systems.

Court Cases

Scène à faire.
Elements of a creative work that are not afforded copyright
protection because they are so essential to the genre.
The classic example of the Bronx.

What can they do?
What are some of the risks that fanﬁction authors have to
face?
Takedown notices
Cease and desist letters

A 76 year old Holden?
While not in the same vein as fanfiction, the ruling in this case may be used in
future fanfiction cases.
Swedish author wanted to write a book about an older “Mr. C”.
The ruling: “Both narratives are told from the first-person point of view of a
sarcastic, often uncouth protagonist who relies heavily on slang, euphemisms
and colloquialisms, makes constant digression and asides, refers to readers in
the second person, constantly assures the reader that he is being honest and
that he is giving them the truth.”

Harry Potter Lexicon
J.K Rowling sued over The Harry Potter Lexicon, a highly
visible and successful website run by Steve Vander Ark.
It was touted as the most extensive and the largest Harry
Potter encyclopedia on the web.
A landmark case for fan works and fair use on the Internet.

What was at stake:
What parts of the Harry Potter universe did J.K Rowling
really own? She felt she was able to exert control over all
aspects of the world created from her “nominative genius”.
Are reference books infringement? Are they scholarly?
Rowling endorsed the Lexicon until it looked like they were
going to print it- then she sued.

The result was that the Lexicon itself was not seen as
“transformative enough”.
The book in it’s original form was never published. RDR
books released a slightly different version of the book in
January 2009.

Final Thoughts

Fanfiction and Fair Use

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