Harry Potter And The Doctrine Of Fair Use

from the why-do-fans-need-approval? dept

Harry Potter author JK Rowling has something of a reputation for being a bit overly aggressive when it comes to enforcing intellectual property rights around her characters — though, years ago, we noted that she wasn’t bothered by fan fiction… assuming it wasn’t pornographic or for sale in China. Once again, Rowling is being quoted as saying that fan fiction is okay and can be posted on the web without fear of a visit from the mean old copyright lawyer, as long as the fan fiction makes it clear that it’s not by Rowling and doesn’t involve pornography or racism. However, it does seem a bit silly that people feel they need “permission” to write fan fiction. For years, fan fiction has always been a sign of just how popular a fictional world has become. It’s the sort of thing that should automatically be encouraged, rather than having people waiting for the official “go ahead” that an author won’t prosecute. In most cases, it seems likely that fan fiction is perfectly legal anyway — but we now live in such an age that ridiculous copyright lawsuits are everywhere you look, and the simple act of celebrating fictional characters you like somehow requires “permission.” For a law that’s supposed to encourage creativity, it seems to have only encouraged legalistic thinking. What a shame.

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Comments on “Harry Potter And The Doctrine Of Fair Use”

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Barrenwaste (profile) says:

This one is a bit slippery. On the one hand, many authors find it flattering and do in fact encourage fan fiction as fair use. For examples see the Baen Free Library. On the other hand, I can also see the point of the authors who do not want fan fiction produced and discourage it as an aspect of fair use.

In so much as fan fiction does not claim to be original work nor written in conjuction with the author I can see how it would fall under fair use. After all, if the authors didn’t want people to read thier works and incorporate them into thier own fantasies then they wouldn’t write fiction. In that sense, fan fiction is indeed fair use. After all, fan fiction is in reality only somebody saying, “Wow, that was awesome! Hey!! What if this happened? That would have been cool, too!” I can’t see that as being an infringement, can you?

That said, I can also see the other author’s point. If they had wanted the characters, world, whatever to evolve like that then they would have written it that way. In that sense they could say that it is infringing on thier rights to have thier created work remain a certain way.

This one, I think, falls down to interpretation of the work and laws, both. In the end I would rule that fan fiction is fair use were it my decision. First, any work can be interpreted multiple ways. This means that author’s realy have no control over what thier work means and never have. And second, people should have the right to imagine thier own twists and permutations to great stories. If the fan’s attempt to make a monetary amount of the fan fiction, then it should be illegal if the author says they do not want it done, but simply telling people about thier fantasy and then showing them by means of a written piece? No, I don’t think that should ever be illegal.

Anonymous Coward says:

Its not like she butchered established, traditional definitions of archetypes in the realm of ‘fantasy universes’ anyways.

Swear that was the most annoying thing of the book series, seeing her use something and it behave different (sometimes the opposite) than it traditionally does.

Its not like she borrowed anything from other works to write hers anyways . . .

coryashire says:

fair use

J.K. Rowling isent going after fanfiction, about 5 years after she first stated that she intends to write a encylopedia of her world to organize everything she wrote in the books and things that she created but couldnt find a place in the books. she stated for years that this book would be for charity.

the lawsuit in question which seems unmentioned in this article is that a small american publisher tried to publish a verbatem copy of a website that organized facts from the books in lists. the issue is that this preempts her long stated encylopedia and after several request to see a copy of the manuscript, RDR Books refused and Warner Brothers was required to take legal action to halt the publication and force a court ordered seziure of the manuscript so it can be reviewed in the courts to see if it exceeds fair use laws or truly prempts jo’s encylopedia.

she is within her rights to request a copy of the manuscript and the books currently published on harry potter often submit themselves to her camp so that they can work with the owners of the copyrights and trademarks *jk rowling/warner brothers/christopher little agencey* to ensure that the book is accurate and both has permission to use the material jo created. even books critical of the harry potter books have been given the seal of approvial by jk rowling because it is filled with critical anayalasis and are not regurgitations of her copyrighted works.

Anonymous Coward says:

the internet is ALREADY full of this stuff, you cant stop it! hell, at least 2 of my (female) friends write ‘stories’ about gay sex between various male characters, noteably fred and george! it’s sickening, but there’s nothing stopping her from being creative!

fan fiction is just that, FICTION, based on OTHER FICTION, the whole system needs burning.

on that note, i’m off the the copyright offices… anyone got a light?

George Fields says:

Poison iPhones anyone?

So JK Rowling says that she has no issue with fan fiction and she being vilified for it? Way to pick a great example of the evils of copyright enforcement my friend.

This is identical the Greenpeace press releases about the “poisonous” iPhones that they later admitted were targeted against Apple because the iPhone was a hot topic. I imagine “PD James and the Doctrine of Fair Use” would garner fewer hits among the geek crowds.

LesterRay says:

Want a good link

The best story written yet in the series was a fan based fiction. And yes they are as GAY as the the personally outed Dumbeldore, whom was outed by his own creator and author. And, the WWW is chock full of pornographic renderings of none other than the boy star and his No. 1 enemy Malfoy who in the book become lovers and are joined together in a bonding ceremony and fight the evil side together. Better read than what J.K. has done, at least they continue to carry on the story line in a way that should only please her…

Vin Patel says:

JK is protecting her fans here

Mike i think you got this backwards – seems to me JK is being nobly responsible in eminently attempting to protect her more vulnerable fans from being exploited, perhaps even from being harmed in their formative years, while at the same time generously allowing public developments of her work – and stating it all clearly (why do you criticise her for restating that fan fiction is ok?).

No offence, but I think your the one that comes across a bit ‘silly’ (that you’ve mis-catagorised this case with the worst of copyright censure); ‘shameful’ (that you didnt’ even realise that vulnerable people are at risk); and open to ‘ridicule’ yourself (all the harsh words i’ve quoted are ones that you yourself have used in your ill-judged patronising-toned article).

It worries me that you seemed to have missed or prioritised downwards the point of the vulnerability of the demographic in your sweeping statements of ‘ridiculus copyright lawsuits’ and your self-appointed crusade against them in this case. (don’t worry i’m not going to extrapolate this blind spot into the general habits of all journalists).

Put it this way, if you’d written a story popular with children in their formative years, would you want to see it being used to harm them? Don’t you think its worth trying anything you can within the law to prevent that? Don’t you think its important to restate the position so it is clear?

Does it not show enough public spirit to state clearly that you are in favour of public involvement with your work as long as people dont’ get hurt?

If only there were more people as considerate of the effect of their works.

Sorry dude, i guess i totally disagree with where you’re coming from. There are bad copyright censures, but this is clearly not one of them.

Shun says:

Protecting her Fans?

Huh? Just how is Rowling going after an alternate encyclopedia producer “Protecting her Fans”? Is the author of the other encyclopedia named J.K. Rowling? Will it, hopefully, be called “The Unofficial Guide to Harry Potter” as opposed to J.K. Rowling’s Official Encyclopedia? Do you really think discerning Harry Potter fans won’t notice the difference? Do you think the Unofficial people will hire the same cover artists to somehow “trick” the youngsters into purchasing their creation? Won’t this be noticed by the media?

I know that the last few Harry Potter book releases were met with unprecedented (hyperbole) media attention. Man, people, get a life. It was like they opened a Krispy Kreme two blocks from your house. Do you really think the Unofficial publishers are going to have that marketting machine behind them? What, some kid is going to stumble into a bookstore, look at the bookshelf, spot a Harry Potter-themed book, completely apart from all of the other Harry Potter books, and think “Hmm…a new Harry Potter! Why didn’t they tell me about this?” Then said child will pick up the mysterious tome, open the cover and…run out of the bookstore screaming?

Please, it’s not going to be the Necronomicon (although that would be a neat trick). As for accusations of porn and racism…well, the problem with the Harry Potter books is that they perpetuate the same imperialist attitudes as the author, in her Mother Country (sorry, going lefty-liberal on y’all). They just gloss over the sex and racism. Excuse me, but what the heck is going on in English Boarding Schools? If kids aren’t learning about sex and race, just what are you teaching them? They obviously aren’t learning math and science.

The porn-mongers and race-baiters are just taking the raw material of the novels and transforming them into “What could have beens”. They are a fascinating look into many people’s psyches, and are a good subject for sociological study, since they all have a single point of reference.

I gave up reading the Harry Potter novels at #3. Also, a buddy pointed out to me that these folks weren’t real magicians. A Magic-User doesn’t need a wand to do anything. The people portrayed in Harry Potter are nothing but a bunch of wand-users. And if that’s not sexual, than I don’t know what is.

Shun says:

Sorry #10 totally missed the point of your argumen

OK, to reply to mr. “think of the children”

Harsh Parent: “Don’t go on the internet. It’s full of creeps and weirdos, and you’ll be infected by porn and racism”. There, problem solved.

Gentle Parent: “You can go on the internet, but don’t look at those fan fiction sites. They’re full of the most degrading humiliations, and we don’t want you to grow up like that.”

Problem less absolutely solved, but likely, this is the best scenario you can come up with. To bad your 8 year old can surf the internet faster than you can, but them’s the breaks.

You can also: ban them from libraries, bookstores, coffee shops (what’s that kid doing drinking coffee?), record stores, yoga classes, tai-chi, schools without a strict internet use policy, or anywhere else you may find that it is inconvenient that you do not have total control of the sights and sounds that your progeny experiences.

What is Rowling’s interest in “Protecting the Children”? Will she use her vast personal fortune to make sure that my (hypothetical) child gets into a decent school, has access to affordable medical care, and gets a good job? Will J.K Rowling make me a cup of tea in the evening? No?

Oh, and here I was thinking that she was interested in helping the kids out. Turns out she was only in it to help herself. How very human.

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