By: Todd Knode

Fan Fiction is the genre of literary works written by fans that add to a storyline or characters created by someone else.  Though fan fiction has exploded on the Internet it started decades ago and became popular in Star Trek centered science fiction magazines.  One of the more popular genres today is the Harry Potter series of stories.  Not surprisingly since these books are the highest selling novels of all time there are hundreds, if not thousands, of Harry Potter fan fiction sites on the internet.  Some websites themselves state they have thousand of stories written by fans.

Some authors, including Potter author J.K Rowling, encourage fan fiction as long as the stories are free.  Because the Internet allows anyone to post anything at little or no cost fan fiction has exploded without causing most fan fiction writers to worry about being sued because of a commercial use.  Once a fan fiction author attempts to make money on their stories however they may be crossing over into copyright infringement.

Steve Vander Ark started The Harry Potter Lexicon as a Potter fan site and it grew into an encyclopedic collection as more books were written.  The site contains Potter storylines, characters and themes, as well as original commentary from him and other website participants.  Rowling herself even sent the website an award for contributing to the Harry Potter world.  Now that Vander Ark and publisher RDR Books plan to sell the Lexicon as a book they are being sued for copyright infringement.

The Copyright is found in the Constitution and grants the author of a copyrighted work the exclusive right to profit from the work.  There is no question that Vander Ark’s Lexicon copies Rowling’s protected works, it is being promoted as an encyclopedia and if it did not copy the works it would not be worth much.  However, the Copyright was also created to “promote the Progress of Science and useful Arts” so unauthorized copying is allowed for purposes such as commentary, criticism, review, teaching or news reporting.  Thus Vander Ark must raise a defense that proves the copying falls under one of these purposes.
 
To aid in determining what is a fair copy and what is not Congress created the “Fair Use” doctrine.  The rule lists four factors which the courts may look at to determine whether the copying was fair.  These four factors cover the intended purpose of the secondary work, the nature of the original work, the amount and significance of the copied portion, and whether the secondary work affects the market for the copyrighted work.  In general, a non-commercial use of copied material has a greater chance of being found a fair use than a commercial use does.

Another key concept in copyright infringement which should be highly important to fan fiction writers is “transformative”.  Does the work transform the original work into a separate work or does it merely copy and repackage it?  Time and effort though does not equal transformative, the Supreme Court ruled a while ago that the “Sweat of the Brow” doctrine is irrelevant in copyright law.  In looking to see if it was transformative a court will look at what Vander Ark did to the copied work.  Either the quantity or quality of Vander Ark’s original contribution must be able to outweigh the original material he copied.

Many works of fan fiction are transformative because they take the existing characters and add to them or change them, as well as continuing the story from where the original author left off.  In Harry Potter fan fiction for example, some of the stories involve the characters being gay or Harry teaming up with Malfoy or Lord Voldemort.  Other areas of fan fiction take the original characters and put them in alternate worlds.  These works may be seen as adding to the author’s creation and not merely copying it.  Outside of fan fiction, transformation is an important element for musicians who sample lyrics or music from other artists’ songs.

Whichever way this case is decided it will surely have a ripple effect on the exploding world of fan fiction.  If Rowling wins, fans may be afraid that posting any story may lead to a lawsuit .  While if Vander Ark wins we may see more fans turn their fandom into a business, potentially dissuading authors from creating new works.