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Fanfiction and Fair Use

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  • 1. Abracadabra! v. Avada Kedavra Fanfiction, First Amendment Rights, Fair Use and J.K Rowling’s Harry Potter Series Jessamyn Lidasan Tuesday, December 1, 2009 1
  • 2. 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. Tuesday, December 1, 2009 2
  • 3. 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. Tuesday, December 1, 2009 3
  • 4. 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. Tuesday, December 1, 2009 4
  • 5. 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. Tuesday, December 1, 2009 5
  • 6. 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). Tuesday, December 1, 2009 6
  • 7. “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. Tuesday, December 1, 2009 7
  • 8. 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. Tuesday, December 1, 2009 8
  • 9. 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? Tuesday, December 1, 2009 9
  • 10. It is not clearly defined in the law whether the following things are protected under copyright: + worlds + characters + histories + names Tuesday, December 1, 2009 10
  • 11. So what is the problem? Tuesday, December 1, 2009 11
  • 12. 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! Tuesday, December 1, 2009 12
  • 13. 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? Tuesday, December 1, 2009 13
  • 14. 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 Tuesday, December 1, 2009 14
  • 15. 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. Tuesday, December 1, 2009 15
  • 16. Court Cases Tuesday, December 1, 2009 16
  • 17. 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. Tuesday, December 1, 2009 17
  • 18. What can they do? What are some of the risks that fanfiction authors have to face? Takedown notices Cease and desist letters Tuesday, December 1, 2009 18
  • 19. 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.” Tuesday, December 1, 2009 19
  • 20. 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. Tuesday, December 1, 2009 20
  • 21. Harry Potter Lexicon 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. Tuesday, December 1, 2009 21
  • 22. Harry Potter Lexicon 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. Tuesday, December 1, 2009 22
  • 23. Final Thoughts Tuesday, December 1, 2009 23