Admirer or Adversary? How Fan Fiction infringes upon the Author’s Rights

Contents

1. Introduction

2. How is the Author’s Work protected
2.1 Intellectual Property
2.2 Copyright Law
2.3 Fair Use

3. Warner Bros. Entertainment Inc. and J.K. Rowling v. RDR Books
3.1 “The Lexicon”
3.2 Rowling’s Reasons for taking Legal Action
3.3 The Ruling
3.4 The re-edited Version

4. Conclusion

Works Cited

1. Introduction

What if Captain Kirk and Mr. Spock actually did share a romantic relationship? What if Sauron had won the War of the Ring? What if Katniss had not volunteered for the annual Hunger Games and had let her little sister participate in the deathful competition to fight for her bare life? Who knows…? Authors inevitably leave the readers of their stories deprived of information, additional plotlines and answers to countless “what ifs”. Imaginative homo and -heterosexual relationships, the continuation of deceased characters or simply alternative endings of novels rob true devotees of sleep on a regular basis. So much so that discontent of fans, combined with their creativity and willingness to awaken the author within themselves, has enabled fan fiction to emerge as a popular form of fan labor with many subgenres. Being loosely defined as “any prose retelling of stories and characters drawn from mass-media content”^[1], fan fiction has appeared in fan magazines and other forms of print since the 1930s.^[2] The “explosion” of the internet in the late 1990s and early 2000s, however, has taken fan fiction to a new level of popularity. Fellow fans across the globe can interact with fan fiction, and the writers are given international recognition within their respective fandoms.

This widespread recognition has also had the effect of attracting the attention of original authors, and them being confronted with stories revolving around the universe that they created. While many authors have publically stated their tolerance for or even praise of fan fiction, and have even encouraged it, others have dispraised it for its shrewdness, sexuality or often times its dreadful style of writing. However, authors have taken legal actions against plenty of their admirers in the past – regardless of their personal stance on fan fiction.

This paper will deal with the infringement of the author’s rights through fan fiction under the U.S. Law. In order to show how it can violate rights, I will elaborate on how the author’s work is protected legally through the ruling of intellectual property and the copyright law in the second chapter. When analyzing the two laws mentioned, one must also have a close look at the Fair Use Doctrine which limits the author’s control over the content of his book and can work in his favor or against him, depending on various factors. These conditions will be explained at the end of the second chapter. The third chapter will illustrate how these laws are applied in a trial court, by analyzing the “probably most famous lawsuit ever brought by an author against a fan”^[3] – J.K. Rowling against Steven Vander Ark (and RDR Books). To gain an understanding for the dispute I will give a detailed insight of the Harry Potter Lexicon and why the website was the foundation of the allegedly infringing work, The Lexicon. Next, Rowling’s motifs for suing one of her greatest fans will be discussed. Here it will become clear why this case differs from most other legal cases related to fan fiction. Needless to say the official ruling of the case and the winners and losers will also be determined, followed by the continued pursuit of releasing a Harry Potter Encyclopedia by the defendants after the trial. The fourth and final part of this work will sum up the findings, and give a conclusion to this controversial literary topic.

2. How is the Author’s Work protected?

Before focusing on how fan fiction violates the author’s rights, it is obligatory to discuss the legal protection of the author’s work. Moreover one must also show the conditions a work must fulfill in order of the laws supporting the author in securing or regaining control of his work.

2.1 Intellectual Property Law

Creative minds such as writers, inventors and artists turn their ideas into tangible property resulting in books, inventions or different forms of art such as music and paintings. When these “results” qualify as intellectual property under the law, the creator has certain rights that protect his work.^[4] Since this work deals with fan fiction and its violations of rights, the focus will lie on the example of an author of a book preventing people from copying and selling his work.

The principle of intellectual property becomes more tangible when you apply it to the ownership of physical property. A homeowner, for example, has the right to exclude strangers and unwelcome people from entering or in some way, shape or form changing his property by spraying graffiti on it, for instance. This is also applicable to the author who can exclude others from violating his or her intellectual property. The owner of a home can sell, transfer or lease the home by completing a will or deed while intellectual property on the other hand can be licensed, sold, copyrighted, trademarked or the patent can be willed. Although the comprehensible comparison between physical and intellectual property provides many parallels concerning their protection, respectively, a crucial difference does exist between the two: As I mentioned before, intellectual property has to qualify as such under the law. Products of the mind are not automatically categorized as intellectual property in legal terms. “It is the function of legal counsel to recognize, preserve, and protect these intellectual property rights. Intellectual property law covers copyrights, patents, trademarks, and trade secrets as well as related areas of arts law such as the right of publicity, unfair competition, false advertising, fine arts law, and protection of semiconductor chips.”^[5] When analyzing fan fiction, copyright law and its violation become the main focus of how the work of an admirer can infringe upon the author’s rights.

2.2 Copyright Law

U.S. Constitution Art. I, §8, cl. 8 states “In copyright law, an author is a person who creates an original expressive work. The author is also the owner of the copyright, unless the author assigns ownership to another in a written agreement. Examples of authors include artists, writers, programmers, choreographers, and translators. If the work was made for hire, the employer or commissioning party is considered the author of the work.” Thus giving the author full ownership of his work unless he deliberately decides to transfer it to someone else. Protection through copyright is granted when an original work is established in a distinguishable form. The term original is used when the author did not copy it from another source.

Although this may seem like a legitimate way of protecting an author’s work, in the case of fan fiction one must go into further detail since fan fiction does not directly copy a work. In fan fiction mostly characters and settings of the original work are featured with a transformative plot. This has resulted in copyright law viewing creative work as “a series of levels abstraction”.^[6] This can be explained with the process of conceiving and eventually writing a novel. It begins with an idea. This idea is then substantiated in a fictional or semi-fictional universe in which characters, locations and various elements are added. They are gradually put into structure by the plot and lastly the story is worded by being written. This process shifts the body of work from abstract to specific. Consequently copyright law is not being infringed when someone begins at the same first step of the process. In reference to the Harry Potter series this could be seen as someone having the basic idea to write a new novel about wizardry and sorcerers. The “new novel” would still be very abstract and could not be connected to the popular novel since there have not been any resembling characters, locations of plot lines (yet). However if the “new novel”, for instance, introduces a boy named Harry as the protagonist, it can be seen as a parallel or similarity to the Harry Potter series. As the level of abstraction becomes lower, the stronger the copyright law protects a creative work. Thus making the most obvious form of violation of copyright, distributing the work of another, while claiming authorship of oneself: a copy – the highest possible level of exactness – which does not provide any abstractness. However, Copyright law operates between the two extremes of “idea” and “copy”.

It for instance “may or may not protect individual elements of the fictional universe, like characters and locations, depending on if they are sufficiently original”.^[7] This results in a very vague form of protection for the author does not sufficiently secure his work.

Applying this to fan fiction, it becomes obvious that fan fiction is in a legal grey zone. It uses an idea but is not a copy of a creative work. Although fan fiction rarely uses the same plot but develops its own events, it does use specific characters who are often protected by copyright. This is also the main argument for authors – or plaintiffs (in case of a legal dispute) – and gives them a legit way to defend themselves against fan fiction. In order to prove copyright infringement the plaintiff must demonstrate “(1) ownership of a valid copyright, and (2) infringement of that copyright”.^[8] Furthermore section 106 of the Copyright Act of 1976 provides certain exclusive rights for the author:

1. the right to reproduce (copy) the work into copies and phonorecords,
2. the right to create derivative works of the original work,
3. the right to distribute copies and phonorecords of the work to the public by sale, lease, or rental,
4. the right to perform the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual work), and
5. the right to display the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture, or other audiovisual work).

This results in a copyright infringement every time a fan fiction uses a protected character since the first right states that it is solely the author’s right to reproduce these character.

In addition to that, the definition of a derivative work is one that is “based upon the copyrighted work”^[9] which by definition means that every form of fan fiction would be violating the authors right since it is solely his or her right create new works based on his copyrighted content. However, since fan fiction is not legally prohibited, and based on preexisting work jurists are confronted with this indecisive right and must decide whether to rule in the author’s or defendant’s favor. Today’s most common form of displaying content is through the internet, and fan fiction follows this trend. Meaning that every time someone uploads fan fiction and makes it accessible for the public, the fifth right of the author is also being violated. This demonstrates how authors can protect themselves and how fan fiction authors act contrary to the law.

2.3 Fair use

When passing the Copyright Act of 1976 the U.S. Constitution saw the prohibition of the use of a primary work to produce new content as a hindrance to creativity. This led to the introduction of the fair use doctrine to promote and encourage creativity, as well as giving the general public the liberty to use portions of preexisting content. Examples of proper use of primary work through fair use include “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”.^[10]

Fair use is usually determined in infringement lawsuits in which the accused party, or the defendants, claim that the infringement is excused because of fair use. The court then must look into the four factors that the drafters of the Copyright Act included in the doctrine:

1. The purpose and character of the use, including whether such use is of commercial nature or it is for nonprofit educational purposes Here the focus lies on if the use of the work is transformative, seeking the changes the defendant made by adding new meaning, expression and if the defendant added value to the original by introducing new information, insights or aesthetics. The purpose of the secondary work is also of relevance. If the purpose of the original changes the expressions of the primary work do not have to be altered. Examples for this case include scholarship, commentary, research, or education.

2. The Nature of the copyrighted work

Here the court deals with the question if the work being copied is of an informational or entertaining purpose. In the case of a primary work being educational courts tend to judge it as fair use due to it benefiting the public. If it is of entertaining nature, the ruling of infringement becomes more likely. The original work being published or unpublished is also a factor due to the author’s right to decide the first publishing of his work.

3. The Amount and substantiality of the portion used in relation to the copyrighted work as a whole

This factor is rather self-explanatory as it deals with how much of the original work was copied. However, not just the quantity but also the quality of the material copied is taken into consideration which has resulted in cases in which a very low percentage of original material was copied but considered substantial by the court. Ultimately leading the secondary work not being permitted as fair use.

4. The effect of the use upon the potential market for or value of the copyrighted work

In order to determine this factor a court must find the balance “between the benefit that the public will derive if the use is permitted and the personal gain that the copyrighted owner will receive if the use is denied” The concept of this factor exceeds the original intentions of the author when adopting an original work, and is completely dependent on the ruling of the judge.^[11]

Although the fair use doctrine is used by the defendant to avoid copyright infringement, it also can work in the favor of the plaintiff depending on how the court rules the weight of the factors. If they are in the favor of the plaintiff, for instance, if a secondary work fails in three of the four factors, the unauthorized use of the work is prohibited. Thus the defendant would have committed copyright infringement by using expressions from a preexisting work.

3. Warner Bros. Entertainment Inc. and J.K. Rowling v. RDR Books

The Harry Potter series is undisputedly one of the most popular literary works of our time having sold over 400 million copies as of 2008, and being translated into 67 languages.^[12] The fantasy novel revolving around the life of the young wizard Harry Potter and his adventures at Hogwarts School of Witchcraft and Wizardry has fascinated readers worldwide. Its commercial success and critical acclaim has unsurprisingly led to it being adapted into films, games, audiobooks and attractions such as “The Wizarding World of Harry Potter” in Orlando. Needless to mention, the seemingly countless pieces of memorabilia being sold across the globe on a daily basis. Therefore making it equally unsurprising that it has one of the greatest fandoms in the history of popular culture. This form of distribution has led to fan fiction not only expanding its reach to fellow fans, but also to the author herself – J.K. Rowling – who found liking in the website, The Harry Potter Lexicon. In 2007, however, Rowling sued the founder of the internet platform, resulting in a complicated legal dispute.

3.1 “The Lexicon”

Steve Vander Ark, a former library media specialist at Michigan middle school and an avid fan of the Harry Potter book series, began taking notes on the events occurring in the second book of the series in 1999. These notes contained very detailed elements of the content of the book such as spells, characters and fictional objects. After joining an online discussion group and receiving positive feedback on his work, he decided to establish a website containing organized and detailed information on the series. The website was launched in 2000 and quickly became the most significant source of information for fans. In response to the fan’s desire to structure the website as an encyclopedia, Vander Ark created an A-to-Z index which allows visitors to explore “Characters”, “Creatures”, “Magic” and “Events” with the content being listed alphabetically.

[...]

^[1] Jenkins, Henry. Convergence Culture: Where Old and New Media Collide. New York: New York UP, 2006. 285.

^[2] Prucher, Jeff. Brave New Words: The Oxford Dictionary of Science Fiction. New York: Oxford UP, 2007. 57.

^[3] Kluft, David. “10 Copyright Cases Every Fan Fiction Writer Should Know About”. Trademark and Copyright Law. 16 October 2016. 7 August 2017. http://www.trademarkandcopyrightlawblog.com/2016/10/10-copyright-cases-every-fan-fiction-writer-should-know-about/

^[4] Stim, Richard. Intellectual Property: Patents, Trademarks, and Copyrights. Albany: Thomson Learning, 2001. 3.

^[5] Stim, Richard. 5.

^[6] Kluft, David.

^[7] Kluft, David

^[8] McCardle, Meredith. “Fandom, Fan Fiction and Fan Fare: What’s all the Fuss about?” Boston University Journal of Science, Technology & Law. Boston: Boston UP, 2003. 15.

^[9] McCardle, Meredith. 15.

^[10] Stim, Richard. 54.

^[11] Stim, Richard. 55.

^[12] Flood, Alison. “Potter tops 400 million sales”. The Bookseller. 17 June 2008. 7 August 2017. http://www.thebookseller.com/news/potter-tops-400-million-sales