Fair Use Part 2: Fan Fiction, Rowling and Cassie Edwards
On the SBTB site, Laura Kinsale asked the question “I’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.