THIS IS PART VI IN A SERIES
As mentioned in the image above, intellectual property is a tangible creation of the mind. If a great idea lives in your head, it’s not intellectual property and can’t be protected by copyright laws. If that is idea is given a physical manifestation, like, say, the 16 pounds that comprise the seven books in the Harry Potter series, then that is intellectual property (copyright.gov).
“Copyright laws emerged out of necessity when the earliest printing presses were introduced into the book trade” (Ng, 2012, p.531). The first ever copyright law is known as the Statute of Anne, dating back to 1710, and copyright law has continually expanded around the world ever since (Ng, 2012). A major component of copyright law is to protect someone’s ideas so that another person cannot pass them off as their own and profit from them. It’s important to remember that copyright isn’t eternal. In the US, works with known authors have a copyright that is the length of the author’s life plus 70 years (copyright.gov). This means that, eventually, someone could reprint or remake the Harry Potter series in its entirety without violating the law, but that will be a long time from now. It’s important to remember that copyright expiration isn’t a bad thing. “The knowledge commons is enriched with the expiration of the property right”… (Ng, 2012, p. 561). There are also exception to copyright laws such as Fair Use which allows some borrowing and adaptation of copyrighted work within certain parameters.
Fair use is what I will examine in this post, focused on a very specific offshoot of the Harry Potter series: fan fiction.
Image of the cover os Rosencrantz & Gildenstern are Dead
“Fan fiction, generally speaking, is a work created by a writer set within the world of a previously created franchise” (Chatelain, 2012, p. 199).
Fan fiction reimagines parts of a beloved story and creates new plots and characters. A work that uses dragons is not necessarily The Hobbit fanfic simply because it uses a concept and creature J.R.R. Tolkien popularized. However if the prose has the dragon living in Middle Earth and meeting hobbits, that would be fan fiction. Fan fictions uses enough parts of the original created world so that readers can understand what is taking place (Ng, 2012).
You have perhaps heard of fan fiction or fanfic but perhaps you think you haven’t read it? I’m willing to bet you have at least encountered it before. There’s Pride and Prejudice and Zombies, Rosencrantz & Gildenstern are Dead, heck even the book on my nightstand right now: Little Thieves, is fan fiction because it retells a Brothers Grimm story reusing characters and settings. The important thing to note about these particular examples though is that they don’t violate copyright laws because all the original works they are based on are old enough to be out of copyright protection. With Harry Potter fan fiction things are more controversial when it comes to copyright.
Fans of stories create fan fiction for a variety of reasons, some just want to continue enjoying something they loved. Others might include more diverse characters and storylines to represent themselves and those like them in a popular universe. The primary goal of fan fiction is to provide more entertainment for other fans. While some fan fiction might be published for sale, like the examples I listed above, with the internet a lot of it is now available for free online (Ng, 2012). Fanfiction.net is one such online community with fan fiction on a variety of franchises and in all sorts of mediums from prose and poetry to videos and music. A general search for ‘Harry Potter’ in the database turns up over 94,000 results. The short description are clear about how each piece adds onto and adapts the Harry Potter series with some, such as a work by AndThenYellow titled End of Harry Potter disclaims “I don’t own Harry Potter.”
“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and the useful Arts’” (Ng, 2012, p. 202).
The statement above was issued by the US Supreme Court because they believed the caveat in copyright protection is to “ensure that others will be allowed to ‘build freely upon the ideas and information conveyed by a work,’ while simultaneously ‘assure[ing] authors the right to their original expression’” (Ng, 2012, p. 202).
Are you confused? Admittedly, I kind of am too. The gist of the issue is that materials put out into the world are meant to enhance it, and what good is it if people can’t build upon the ideas of other because of incredibly restrictive copyright laws?IF we simplify things to the benefits of sharing information consider: what if China hadn't shared DNA details about the SARS coronavirus 2 virus? Scientists would not have been able to build on that quickly to create vaccines. To bring it back to fan fiction and Harry Potter, within copyright regulations is the fair use doctrine. Fair use allows people other than the original creator to “use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances” (https://www.copyright.gov/help/faq/faq-fairuse.html). Without defining the percentage of a work that can be used it’s difficult to deem that all fanfic is protected by fair use. Even the courts have a difficult time deciding and while the US Supreme Court has a history of deciding in favor of those that are building on artistic works, appeals courts have a history of deciding in favor of the original creator.
So, in short, it’s complicated.
It’s highly unlikely that the 94,000 plus users on Fanfiction.net need to fear lawsuits. Just thinking about the practicality of actually doing that makes my brain want to explode. From what I can tell, the majority of them have expanded upon Rowling’s original creation with their own artistic inventions: a new ending, a new character, a new time period set in the wizarding world, etc {disclaimer: I am just an aspiring book historian NOT a lawyer}. Now, if any of these works take all seven books and repost them in their entirety tweaking just a few prepositions and pronouns; they’re likely to face copyright infringement. All the folks borrowing some of Rowling’s settings and concepts to make their own works are likely falling under fair use.
Aside from the fan fiction mentioned above, I have not read much myself. But I have imagined characters more like myself {queer, non-binary} in the Harry Potter universe and fan fiction gives a delightful way to explore these possibilities. As one fanfic author describes it “‘For me it’s sort of like an acting or improvisation exercise,’ …’You have known characters. You apply a set of given circumstances to them. Then you wait and see what happens’” (Grossman, 2011, p.1). Lev Grossman (2011) goes on to explain fan fiction as a conversation between readers and the culture a book created. While some people may worry that fan fiction means authors will lose money, Ng (2012) speculates that it actually makes readers more connected to the stories and more willing to spend money on the original franchises. The vast majority of fan fiction I came across in research for this post assumes readers have read and are knowledgeable about the original works; they are not a substitute for the Harry Potter series. And, at the end of the day {or the blog post, if you will} that’s how I feel. If I have an amazing experience with a piece of fan fiction, I’m going to go back and reread the parts of the original series to fully understand the connections. Rowling has also created an online universe for fans to continue interacting and fan fiction allows fans to continue building upon that. It’s all entertainment for the world to enjoy and as one of the fanfic authors Lev Grossman (2011) chatted with in his smartly titled article The Boy Who Lived Forever, “‘We don’t own nonfictional people,’ … ‘and at the end of the day, I don’t think we can own fictional ones either’” (p.9).
Citations
Austen, J. and Grahame-Smith, S. (2009). Pride and Prejudice and Zombies. Quirk Press.
Chatelain, M. (2012). Harry Potter and the Prisoner of Copyright Law: Fan Fiction, Derivative Works, and the Fair Use Doctrine. Tulane Journal of Technology & Intellectual Property, 15, 199–217.
Grossman, L. (2011). The Boy Who Lived Forever. TIME Magazine, 178(3), 44–50.
Ng, A. (2012). Literary property and copyright. Northwestern Journal of Technology and Intellectual Property, (7)10.
Owen, M. (2021). Little Thieves. Henry Holt and Company.
Stoppard, T. (1967). Rosencrantz & Gildenstern are Dead. Grove Press.
*Some citations for web resources are linked directly in the post (in blue).