Complete set of the seven books of the Harry P...

The Harry Potter series is extremely popular with fan fiction writers.

Fan fiction falls between the cracks of the nation’s copyright laws. Derivative fiction or other works created by fans of popular media like the Harry Potter series or Star Wars is  enormously popular with diehard  fans of the originals. It’s not only popular, it can be potentially profitable.The debate has heated up once again in a fierce debate over Conan Doyle’s Sherlock Holmes stories and the character himself. We wrote about this aspect of the debate about a week ago.

There’s no question that fan fiction is derivative of other works – that’s the reason that it exists. For fan writers the key seems to be showing that the work constitutes “fair use,”  that it truly transformative. That is, it must change the nature of the original work significantly. Before I go on, I should just add that none of what is written here is to be taken as legal advice. I’m simply pointing out and discussion some of the general legal issues that come into play. For more, specific info, you need to contact a lawyer directly.

Fair Use” is the use of an existing work in such a way that it’s meaning is truly and significantly changed. Parody and criticism are generally accepted “fair uses,” but even in these cases wholesale use can’t be made of the original. You can use only as much as you need to make your point. Even these accepted applications of “fair use” are often decided on a case by case basis. It’s rare that there’s a bright line between “fair use” and a copyright violation.

In reviewing a “fair use” claim, four factors are typically taken into account:

  1. “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The problem with fan fiction is that it has not been found by courts to fit squarely into any of the the accepted exceptions. If you take a work of fiction, with the same characters and create another plot, you’re probably not in the clear. You’re safer if you take the general conceit of the story and move in an entirely different direction. For example, if you write about a sister school to Hogwarts that never appears in the Harry Potter books, and you don’t make use of any of the existing characters,  you’re probably in safer territory. Of course, that takes a lot of the fun out of using a favorite book as the basis of your own.

It’s a complicated issue, and you’re not entirely in the clear even when you deal with a work on which the copyright has lapsed. Take Frank Baum’s “The Wizard of Oz.” The copyright has lapsed and you’re fee to use the characters, the setting and the story to your heart’s content. However, you’re not free to use parts of the story that appear only in the MGM filmed version of the story. The film is still covered by copyright.

One of the key factors that comes into play is money. If the author of a fan fiction based work is offering it up for free, he or she is much safer. The original author may even feel that the fan is adding value to original work. It’s getting fans excited about the original. Not charging for a fan work also shows that you’re a real fan and not merely an opportunist. It is also well to keep in mind that a suit filed against someone who loves a popular, original work enough to write about it for free , a true fan, is not great publicity.

If  you’re confused, rest assured that you’re not the only one. The rules related to fan fiction and “fair use” are not hard and fast. They’re fluid and uncertain. As I said before, they’re also determined on a case by case basis. If you’re a fan writer, just be careful about how and where you distribute your work. You might also be interested in consulting the Organization for Transformative Works. The organization offers information and resources.

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