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Fair Use Part 2: Fan Fiction, Rowling and Cassie Edwards

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On the SBTB site, Laura Kinsale asked the questionI’m curious. What’s the difference between Cassie Edwards writing about ferrets and fan fiction published for profit?

Robin’s response was “the fact that fan fiction, by its very nature, has overt attribution.”

My response was

The difference, ethically (and in general), between fan fiction and plagiarism, i.e., the Cassie Edwards repeated use of other people’s words, is the attribution or lack thereof. Fan fiction gives attribution to the original authors work. Plagiarism is the passing off of someone else’s original work as your own.

I definitely think that there is probably fan fiction out there that a) plagiarizes and b) infringes. But I am not going to condemn an entire body of work based upon the individual pieces that may be unethical or may be violative of the copyright act just like I am not going to condemn the entire romance genre on the basis of work by Cassie Edwards or Janet Dailey.

I also think that there is fan fiction out there that is not infringing and would be considered transformative enough. I.e., I have thought that a work that transformed JR Ward’s BDB series into a gay romance rather than a straight might very well well be considered satirical and creative enough to overcome a copyright infringement challenge. The goal of fair use is to allow comment, criticism, commentary on original works. Some fan fiction is going to meet that and some is not.

Moving on, though, to address the JK Rowling thing. I think most people know that RDR Publishing attempted to publish a print copy of the website maintained by former librarian, Steven Vander Ark, called the Harry Potter Lexicon. JK Rowling and Warner Brothers filed suit for an injunction and for damages (the latter is puzzling as no damages exist at this point since the Lexicon has not been published).

Now I know from reading Fandom Wank and comments on other sites, including SBTB, and from emails, that the fan community is largely on Rowling’s side in this instance. I think that part of the reason for the intense disdain and sometimes hatred toward Vander Ark and RDR Publishing arises out of the paradigm within the fan community. One commenter described it as a “gift” community and it is seen that Vander Ark is taking the “gifts” of the community and attempting to profit off them. Whether Vander Ark is violating copyrights of the community is absolutely separate from JK Rowling’s suit because she doesn’t own the rights to the work of the community.

I like communities like Fandom Wank which is filled with bright, funny individuals. I don’t question their loyalty to Rowling. I also believe that they are t entitled to feel the way they do toward Vander Ark. But I do think that they are wrong in interpreting the effects of a favorable ruling for Vander Ark.

What is at issue is whether an Encyclopedia of Rowling’s Harry Potter work is fair use. It is clear that the use of the Harry Potter books written by Rowling is used in the Lexicon and that is infringement. Fair use, as discussed previously, is an excuse for infringers. Essentially it’s like a get out of jail free card. Fair use is an important part of the copyright law and has been in existence for as long as intellectual property rights have been recognized. "From the infancy of copyright protection," the fair use doctrine "has been thought necessary to fulfill copyright’s very purpose, "[t]o promote the Progress of Science and useful Arts.’ " Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (quoting U.S. Const., art. I,  § 8, cl. 8). The reason for this is that copyright is essentially a monopoly. Monopolies are deemed not only inefficient but more importantly suppress advancement. The struggle copyright law has is to afford enough protection to the individual creator of a work while not suppressing creativity and advancement in the arts.

The fact is that any encyclopedia of a work must include copyrighted phrases. To not allow encyclopedias to use copyright phrases would be to limit the creation of encyclopedias only to the copyright holders. This is an instance in which the law and the courts interpreting the law have said to do so would suppress advancement. Even using copyrighted works, in their entirety, has been found to be transformative in some cases such as the Perfect Ten v. Amazon, 508 F.3d 1146, 1165 case in which the Ninth Circuit court determined that the use of thumbnail images in a search result was fair use because it was transformative enough.

It may be that JK Rowling may win this case and thus strike a blow to academic endeavors because this interpretation would narrow the application of fair use. It may be that Rowling will lose this case and thus expand the application of fair use. What I don’t believe will happen is an increase in cease and desist letters or a decrease in them as it relates to fan fiction. The reason I believe this is because fair use is decided on a case by case basis. Each work that infringes upon another’s copyright must be measured on it’s own terms. Which is why I said in answer to Laura Kinsale that the body of fan fiction is not per se violative of copyright. In some cases, fan fiction will be deemed to fall under fair use and in others, it will not. No matter the outcome of the Rowling case, infringement and fair use will still be determined on a case by case basis.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

17 Comments

  1. Shiloh Walker
    Mar 04, 2008 @ 07:28:07

    I’m out of touch and know nothing about the HP thing, but I can see the difference between the two, CE and JK.

    Isn’t fan fiction ‘homage’ of sorts? I’d thought works giving homage to other literary works were, in and of themselves, okay.

    Nobody who reads a fanfic about HP or Anita Blake or any other popular character is going to believe that the fanfic writer CREATED those characters.

    Bu taking somebody else’s words and claiming them as your own is different.

  2. Leeann Burke
    Mar 04, 2008 @ 08:22:26

    I had been wondering the same thing about plagiarism vs fan fiction. Thanks for the explanation Jane.

    Personally I have never read any fan fiction, but I have to agree with you Shilow I thought of it as an homage as well.

  3. Sarah Frantz
    Mar 04, 2008 @ 09:37:05

    Jane, I think you’re missing part of the article: In the first paragraph after the block quote, it ends, “For example, there were complaints….” I want to know who complained about what!

  4. B
    Mar 04, 2008 @ 10:41:49

    I think the feeling that there will be such a crackdown on fanfiction may come from something Rowling herself said.

    “If RDR's position is accepted, it will undoubtedly have a significant, negative impact on the freedoms enjoyed by genuine fans on the Internet,” she said. “Authors everywhere will be forced to protect their creations much more rigorously, which could mean denying well-meaning fans permission to pursue legitimate creative activities.”

    I’m kind of curious as to what people think about that. It’s a big statement to make, after all.

  5. Jane
    Mar 04, 2008 @ 10:56:07

    I know she has made that statement but I am not sure what legal basis that she has. Her case, no matter the outcome, will not change the way that fair use is applied, i.e., on a case by case basis. Because the Lexicon is a scholarly work versus a fictional homage, I am not even certain how it could be used as precedent enforceable in the future against fan fiction. Fan fiction is a different animal and would be examined differently.

    I guess I question alot of what Rowling says because on her website she claims that she was included in a couple of suits on a “technicality” and that damages were requested because of a “technicality”. The party to the lawsuit and the damages requested are key components and are not technicalities. So I think Rowling says alot of things that are designed to buttress her position that might not have a basis in the law.

    What I had meant about complaints but edited out (and not entirely as I see), was that early filings contained statements from fans about early interaction with VanderArk and his intentions toward the publication of the Lexicon and his belief that it was copyright infringement.

    Those statements would probably not be allowed at trial because they are not relevant. Those are PR statements and probably not even competent evidence to consider in determining whether an infringement is likely to happen. First, no person can testify to what the law is. That is the role of the judge. Second, a statement as that Vander Ark is an infringer would “invade the province of a fact finder” which is also prohibited. What Vander Ark believed at the time that he was creating the Lexicon and anytime thereafter is not relevant. Copyright is an intentless act. There is no examination of personal motive. So all those declarations filed with initial motion by Rowling amounted to nothing more than PR statements to me. It’s smart and obviously very effective in swaying public opinion but I really question the evidentiary value of those statements.

  6. Chicklet
    Mar 04, 2008 @ 11:40:36

    No matter the outcome of the Rowling case, infringement and fair use will still be determined on a case by case basis.

    That’s all well and good, but no fan wants to be one of those cases, which is why the specter of C&Ds and lawsuits haunts so many of us. We don’t have the money and wherewithal to fight, say, Warner Bros. or FOX, so even a slight increase in the number of C&Ds going out would result in any number of websites or fanworks being taken down. No one wants to be the Jammie Thomas of fanfic. That’s why legal assistance is one of the goals of the Organization for Transformative Works — not necessarily funding a defense lawyer for a fan sued by ABC, but offering other support.

  7. DS
    Mar 04, 2008 @ 11:46:25

    Do you know if this is going to be a bench trial?

  8. Jane
    Mar 04, 2008 @ 11:47:20

    I understand that Chicklet, but the spector of Jammie Thomas looms the same today as it does tomorrow. Some fan fiction is copyright infringement and some is not. I don’t see the Rowling suit changing that.

  9. Jane
    Mar 04, 2008 @ 11:53:29

    I don’t know DS. And I don’t know which way would be better. The SDNY is notorious for being pro copyright holders so the bench may be tough. But a jury which is totally in love with JKR could also too much of a hurdle.

    I think one think that bothers me is that fear seems to be driving the fan response around the JKR/Lexicon battle and maybe that fear is justified. It just makes me sad when we respond to things out of fear.

  10. RH
    Mar 04, 2008 @ 13:10:18

    A lot of the reason for the frustartion is that JKR was an ardent supporter of the Lexicon in web form. While there is a lot of encyclopediac(sp?) knowledge there, the essays are particularly interesting. The Potter books, the LOTR books, more recently Pullman’s books, have been the subject of a great many critical and academic works. My concern if JKR wins this is where will that distinction be made between copyright protection and fair discussion of literary works.

    In my eyes, fanfiction and the Cassie Edwards situation are completely different. Fanfiction authors completely fess up that they’re playing in someone else’s sandbox. Very few make money and those who are published by mainstream publishers are invited to do so and the author themselves never retain copyright. I have a couple of CSI novelizations on my desk and they’re copyright the producers of the TV show, even though an author’s name is on the cover of the book.

    In any event, comparing fanfiction, the Lexicon situation, and Cassie Edwards is like comparing apples, oranges, and bananas. Cassie was clearly wrong in her word for word copies of other people’s works, and this has been done for profit for how many years? Has that even been determined?

    FYI, my library just ordered a bunch of new CE books and I expressed my dismay to them directly.

  11. snarkhunter
    Mar 04, 2008 @ 13:35:09

    As an academic and a Potter fan, I maintain that the Lexicon is NOT, in fact, a scholarly work. It’s not even that great of an encyclopedia.

    That’s really all I have to say about this. I’ve said everything else everywhere else.

  12. Ali
    Mar 04, 2008 @ 15:40:16

    I would just like to clarify something. Because fan fiction resides (as you have pointed out several times) in a legal grey area, reputable fan fiction websites generally comply with author requests that they not publish fics based on an author’s works. If JKR loses this lawsuit, and she deems it necessary to do so, all she would have to do is request (whether via a C&D or some other means, I don’t know) that the website remove archives and not allow fics based on her series, and if the site is reputable, they will comply. If the site is not reputable and refuses to comply, then I assume there would be lawsuits.

    The only reason that fan fiction has been brought into the equation at all is because SVA/RDR has argued in their filings that because JKR has allowed the use of copyrighted material on the internet for so long, she has essentially abandoned her copyright, and so has no right to sue now. It is as a result of this argument that JKR has said that a judgment in favor of SVA/RDR will result in an authorial crackdown, not just on fan fiction, but on fan art, fan videos, and fan websites, as authors (not just JKR) scramble to make sure that their lenience towards their fans’ activities is not seen as abandoning their copyright.

    Also, I’m curious as to what the law defines as a scholarly work, if in fact it does at all. Having read the manuscript for the proposed Lexicon book (which is available on Justia.com as a part of the court filings in nearly its entirety) it is easy to see that the majority of the encyclopedia’s entries are in fact copyrighted material lifted directly from the Harry Potter books. According to JKR/WB’s court filings the actual percentage is 84% copyrighted material, 16% original thought. I believe that I read somewhere (here, maybe?) that in order to be considered fair use, a scholarly work must only contain something like 10%-15% copyrighted material, which would put the Lexicon way beyond fair use if true. Additionally, the 16% “original thought” is not actually SVA’s original thought, but is the “original thought” of the web Lexicon’s many, many contributors, none of whom are cited, acknowledged, or would be getting any kind of compensation from the profits of the book. (I know one chick who just found out that some of her contributions were to be included in the book, and, boy, is she royally pissed.)

    I’ll admit to being on JKR’s side at first primarily because I was afraid of possible crackdown on fan fiction (which I love to read, even though I don’t write it), but some interactions with a few fan fic authors in the previous three months has left me with a bad taste in my mouth and the feeling that doing away with fan fiction might actually not be a bad thing. The extreme sense of entitlement on behalf of some fans has left me baffled, confused, and sad, and the pure meanness (one example of which might just be defamatory) of some “fans” towards JKR just flat out ticks me off.

    I don’t worship JKR. IMO, there are too many plotholes, “just so happens”, and coincidences in the series for me to think that she is anything other than a fallable human being who’s not terrific at plotting, but who is brilliant when it comes to creating believable characters that are easy to identify with and relate to. As of right now, I just feel sorry for her.

    -Ali

    P.S. I know throwing an out accusation about slander/libel/defamation is dangerous around here, so to clarify before I’m roasted, a group of fan fic authors on FF.net decided that the only explanation for something JKR said in an interview–not the Dumbledore thing, surprisingly–is that she was either high or drunk. They decided to start a “movement” or “revolution” based on this (joking, according to them) assertion, named it as such, asked people to spread this POV around via “copy and paste this into your profile”, and then started a forum where they play games making fun of JKR in her “drunken” state, commiserating about what a horrible person she is, and bragging about how they will never again buy any of her books, and about how they have managed to convince other people to think their way. After objections from some people, they changed the explanation of their “movement”, but not the name of it, which still implies that JKR is a drunk, not to mention the forum, which is very active. Make up a lie, spread it around in an attempt to discredit someone, then start a forum in order to have malicious fun at the person’s expense as if the lie was the truth. Sadly, the leaders of the revolution aren’t teenagers; on the contrary, they brag about their adult children in their profiles. Despite all of the discussion here about slander/libel/defamation, I don’t know whether this is defamation as defined by the law, but regardless, it waaaaaaay oversteps my ethical boundaries.

  13. B
    Mar 04, 2008 @ 19:26:45

    Like with any community on the internet, there will be bad apples among fan fiction writers too. But you can’t punish the community at large for the actions of a few.

    I started writing to begin with because at the age of 12, I started writing fan fiction. Things like copyright were something I knew nothing of…and I wouldn’t have thought that they might apply to me. I was just a kid, doing something I loved.
    And that was the whole thing. For me, writing turned out to be more than a small hobby. It’s a huge part of who I am and the thought that I might not have known that, if it weren’t for my experiences with fan fiction, is horrifying. So as a writer, I wouldn’t be able to deny another that pleasure.

    Putting an end to all fan fiction would get rid of the nasty people, sure. But we have to keep in mind what else it might get rid of before making such a judgment call.
    Besides, cutting out fan fiction wouldn’t stop the people who are determined just to be cruel. They’ll find a way to spread their nastiness regardless.

  14. Robin
    Mar 05, 2008 @ 01:17:06

    The only reason that fan fiction has been brought into the equation at all is because SVA/RDR has argued in their filings that because JKR has allowed the use of copyrighted material on the internet for so long, she has essentially abandoned her copyright, and so has no right to sue now. It is as a result of this argument that JKR has said that a judgment in favor of SVA/RDR will result in an authorial crackdown, not just on fan fiction, but on fan art, fan videos, and fan websites, as authors (not just JKR) scramble to make sure that their lenience towards their fans' activities is not seen as abandoning their copyright.

    I am totally unfamiliar with any concept of “abandonment” in copyright law. There is such a concept in trademark law, but even in trademark there is still fair use.

    I understand why Rowling’s fans are hoping she will win the suit. But you know, it’s not like the scholars standing on RDR’s side are a bunch of fops. In a lot of ways, I think it’s unfortunate that SVA has accrued so much bitterness, because from the perspective of an outsider (me) the discussion seems one of Rowling v. SVA, instead of a legal question about whether or not the Lexicon constitutes fair use and what the implications of that are either way. Of course, because IP is completely an invention of law, it’s a paradigm that looks a whole lot different from the inside than the outside. As Jane said, for example, intent has no bearing on whether “copying” has occurred within the statutory definitions controlling copyright, but human nature tends toward assigning motives to people and judging their actions thusly. How this issue plays out in the public will be different than how it plays out in court, even if Rowling prevails legally.

    Ultimately, I think this whole thing boils down to a clash of paradigms between and among reader/fan ficcers, fair use advocates who want copyright applied as narrowly as possible, and copyright holders who want the broadest application of that copyright. No matter how it turns out, this is a very interesting case, and a really important legal issue that hasn’t seen its last court battle (not by a long shot).

  15. Ali
    Mar 05, 2008 @ 04:21:48

    B,

    I’m sorry my meaning wasn’t more clear! I wasn’t arguing that fan fiction should be shut down solely because of the few bad apples that I made an example of. If the fan community were shut down it wouldn’t be because a bunch of idiots decided to spread their maliciousness all around the internet, nor do I think that it should be shut down because of them. (Although I do admit that I wouldn’t object to these folks being banned from FF.net, especially since FF.net’s TOS forbids any defamatory/libelous statements by users.) I was simply using these people as an example of a)what can go wrong with fandom in general, and b)why it wouldn’t be a complete travesty, in my mind, if the fandom ended up being shut down. If it were, then the culture that allowed these people to get to the point of thinking that their ability to write fan fiction has somehow entitled them to be abusive, and to claim a right to something that isn’t theirs and never will be, would be eliminated.

    If fandoms end up being shut down, it would be solely the fault of Steve Vander Ark, at least in my opinion. You’re right, it isn’t fair to the decent and genuine fans that make up the majority of fandom who would be punished for the actions of the few (or in this case, the one) who crossed the line, just as JKR said in her statement. But isn’t that the way that it always is in life, that the majority are punished for the crimes and the failings of the few?

    When I was in high school, we had an open lunch, meaning that students could leave campus for lunch if we so chose. When this privilege was negotiated with the school board in the early 1980s, the student government leaders promised that the privilege wouldn’t be abused and that if it did end up being abused, they would have no problem with it being taken away. By the late ’90s, when I was in high school, the privilege was being abused constantly (meaning that some students were always late for class). Finally, in my sophomore year, the privilege was revoked, all because a few people were 5-15 minutes late for class after lunch every single day. A student body that numbered in the hundreds was punished because of the actions of just a few. It sucks, but the majority of the time, in real life, that’s the way it works. A few people mess up, so the rest of us are punished.

    Anyhooters, to bring my post back on topic, I just found reference to an interesting case. According to this and this, Marion Zimmer Bradley at one point actually encouraged fan fictions of her work, but in 1992, a “skirmish” (credit to the first link) with a fan led to her banning all fan fictions based on her works. So fan fiction bans can, and have, been implemented by authors in the past due to incidents with fans. (Disclaimer: In that first link is a reference to fan fiction being in a legal grey area, which is a term that I have used before. That is a complete coincidence, I swear!) Anne Rice is another author who, after awhile of allowing fan fics, has made her displeasure with fan fiction known. I found several websites that actually referred to her methods of going after fan ficcers as “harassment.”

    As an aside, I just realized in re-reading my original post that I used the phrase “in fact” a lot. I apologize for that, because I honestly didn’t mean to sound pretentious and stupid. Then again, I probably sound pretentious and stupid in this post, too.

    -Ali

  16. mia
    Jul 07, 2008 @ 23:31:48

    I probably shouldn’t do this at all so late in the game but I just found this and must ask–wasn’t the key phrase in Laura Kinsale’s question “for profit?” It appears to me that she isn’t asking what’s the difference between plagiarism and fanfiction, but that she’s asking what is the difference between plagiarism (Cassie Edwards/ferrets, I presume) and fanfiction for profit (SVA’s Lexicon).

    Perhaps I got lost here, but it doesn’t seem to me that this is the subject that was addressed in the response.

    And I guess my own answer would be, there’s little difference between Cassie Edwards’ plagiarism and SVA’s — they’re both attempting to make a profit off someone else’s copyrighted works.

    Fanfiction is nonprofit. I think it’s a breach of copyright, as well, but those authors who allow it do so because nobody is making money off it.

    I could be wrong. I often am.

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