In 2007 JK Rowling and Warner Bros filed a complaint against Steve Vander Ark of the Harry Potter Lexicon website and halted the publication of his print version of the lexicon.
As an encyclopaedia of the characters and other elements of the Harry Potter world, Vander Ark’s proposed book would have been a derivative of Rowling’s Harry Potter series, and as such would infringe on Rowling’s copyright – specifically her right to produce her own encyclopaedia of her own books should she wish to do so.
Fair Use for Commentary Purposes
While it is true that some authors waive their rights to produce reference material based on their universe and allow, or even recruit, others to do so on their behalf, creating a direct listing of encyclopaedic elements does not constitute fair use for commentary purposes because it lacks original analysis, review, or criticism. In other words, it is acceptable for someone to publish a criticism of Harry Potter and to quote from the books to support the argument.
Likewise, parody also falls under Fair Use, but in very many instances parody must be authorised by the author because she has right of veto for anything that could harm the reputation of the original story.
The reason criticism, parody, review, and commentary falls under fair use is because these become unique works in their own right and the original author is unlikely to produce such works of her own.
Fan fiction also breeches copyright because it dilutes the original author’s body of work should it be published. However, some authors encourage fan fiction and create guidelines and reference material especially for fans to use. As such, it is a form of promotion for the original work, and whole communities can develop around an author’s universe. Some of these derivative works even stand a chance of being published in their own right.
Usually the main condition of being allowed to create fan fiction is that the reputation and state of the original work is not interfered with – for example, if the original story is family friendly, the fan fiction must not be adult only. It is usually not permissible to kill off main characters and any significant changes made to relationships or other elements of the book’s universe must be reversed by the end, so that a new book written by the author or others would still make sense following in sequence.
Writing occasional fan fiction for your own enjoyment is fine, but do bear in mind a very important issue if you are developing your own writing craft at the same time. When you use another author’s characters and universe to start your story, you fail to learn the requirements of creating your own main characters from scratch and understanding what the elements are that make a character memorable. You don’t learn to build your own world.
Fantasy author Robin Hobb likens a writer writing fan fiction to musicians playing only cover versions or artists using paint by numbers – it’s a hobby for someone who doesn’t do that for a living. While some do make a living from a hobby, you won’t take your writing seriously until you undo your harness and learn to build your entire story yourself.
This article was first published on BellaOnline in December 2007. © Elsa Neal
For more information on legal and copyright issues in fiction, try Every Writer's Guide to Copyright and Publishing Law by Ellen Kozak.
Learn more about writing fan fiction: Fan Fiction and Fan Communities in the Age of the Internet edited by Karen Hellekson and Kristina Busse