Fans and Copyright Issues

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In the year 2000 Steven Jan Vander Ark opened the doors to the Harry Potter Lexicon, a site which he had been working on since 1999. The site, which is currently down, was a place for all things Harry Potter, all placed in alphabetical order for easy location.

Later, in 2004, JK Rowling, the author of Harry Potter, gave the site high praise saying that it was “such a great site that I have been known to sneak into an internet cafĂ© while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter.”

However, the friendly relationship between Rowling and the Lexicon took a famous turn for the worse in late 2007 when RDR Books persuaded Vander Ark to publish a printed version of the Lexicon. This was after Vander Ark had been rejected by Rowling’s agents for a formal position in an official Harry Potter Encyclopedia.

What followed was a letter exchange between the three parties and, eventually a lawsuit by Rowling and Warner Bros., the makers of Harry Potter films, to stop publication of the book. The lawsuit, which concluded yesterdaywqquvfbfwvtvrbxaffsr, found that the lexicon was not a fair use and officially barred publication of the book.

It is an unhappy end to a very sad saga but it is a case that illustrates the problems copyright holders, large and small, have when fans cross the line.

A Difficult Relationship

On matters of copyright, the relationship between fans and creators has always been a somewhat tumultuous one. Fans, often eager to use the works they enjoy to express their creativity, routinely create fan fiction, remixes and other homemade derivative works.

Artists, whether they are musicians, authors or filmmakers, are typically very lenient about such practices. They realize that such creations are not only free promotion for their work, but that such efforts create a community that comes together and supports the original work. In short, there is nothing to be gained by going to war with your fans.

However, there are times in which fans simply go too far. They do something that is a perceived slight to the original artist and that creates a backlash, often from both the artist and the community.

An excellent example of that was in 2005 when a fan of the Applegeeks Webcomic, Chris Davis, tired of waiting for a printed version and created his own, printing it using an online publisher. Though just one copy of the book was made, this resulted in outrage from both the creators and the fans of the series, eventually resulting in Davis sending the book to the artists.

Clearly these are tricky matters that do not fit neatly within the paradigm of artist and infringer. As such, the usual system for dealing with copyright issues is not effective nor appropriate here.

Kid Gloves

Though tossing about DMCA notices and cease and desist letters is fine when dealing with plagiarists and spammers, with fans and supporters, it is much less desirable. Not only are such tactics likely to turn supporters against you, but it damages the community that is forming and hinders the market for your own work.

Clearly, if you are fortunate enough to have a problem with fans misusing your work, you need to think about a separate strategy for dealing with such issues.

Any such strategy would likely include the following elements:

  1. Clear Guidelines for Fans: It may be unpleasant, but one of the first elements of avoiding conflicts is setting clear and fair guidelines for what fans can and cannot do. Creative Commons Licensing can help some but most larger copyright holders have set up Webmaster/fan sections, such as the one created for Harry Potter.
  2. Communicate Desires Effectively: In addition to a good set of guidelines, it is important to keep in touch with the fans and let them know if anything upsets you. This would be an excellent use for your blog or official site. Usually if fans are aware of an issue, they will work to avoid it and fan site administrators will usually help head off any problems before they reach a level where a lawsuit might be considered.
  3. Distinguish Between Fans and Other Infringers: This can be tricky to do at times, but remember that willful infringers are a different group with a different set of intentions than those who enjoy your work and may stumble across legal boundaries. Look for plagiarism, heavy commercialization, piracy or other signs that an infringer is a merely a wolf in sheep’s clothing and treat them as such. Be prepared to back up your reasons if needed.
  4. Try to Resolve Fan Issues Peacefully: Though we are quick in a litigious society to throw about legal threats, with these types of issues there are usually a more direct and less hostile ways of handling them. If a fan goes too far, if legal action isn’t immediately necessary, contact them and let them know ask them to work with you and explain your reasons. A small olive branch extended on the front end not only prevents conflict with the community as a whole but should things turn ugly, can put you on the high road.
  5. Include Fans When Possible: Though not a copyright issue directly, if fans feel that they have a voice and a say in the new works, they are much less likely to do engage in behavior that both offend the law and the artist. Letting the fans in, rather than keeping them at arms reach, is a huge asset in stopping problems before lawyers become involved.

The bottom line is that cases of copyright infringement that involve fans are as much about matters of politics as they are legal issues. Though Rowling doesn’t seem to have taken too much flak for her actions in this case, likely due to her known tolerance for non-commercial use and the nature of this book, it doesn’t take much imagination to see how this could have blown up into a much bigger headache.

Conclusions

In the end, fans are different from plagiarists, scrapers and other copyright infringers. Their intentions are different, their motivations are different and, thus, the way to approach them is different.

Most copyright holders, including the ones I’ve listed in this article, are very good about realizing this and acting accordingly. Others, especially big corporations, have not been so good in this area.

This is a difficult area of copyright law that requires both nuance and diplomacy. Furthermore, no solution is going to work well for every creation.

It all goes back to communicating with your fans and finding out what they want and letting them know what you need. If everyone works together, these problems can be few and far between and the less common these messy situations are, the better off everyone is.

Related Links

Further Discussion

  • Was it a sound business decision for Rowling to file suit?
  • Do you agree with the ruling?
  • What lasting impact will it have on fan creations?
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4 COMMENTS

  1. There's a good discussion of this case over at Groklaw. From the interpretation there, I gather that the result could have been much worse for writers of fan fiction. The key elements that led to ruling for Rowling/Warner seem to have been the amount of actual directly copied or directly paraphrased material, and the intended commercial use. A lot of fan fiction bases its background on the original work, but its substance is entirely original to the fan-writer. Even fan-written “companion volumes” (dictionaries/encyclopedias) are left some opening — although how one can write an encyclopedia trying to walk the line between a plot summary with and without “substantial similarity” to the original is questionable. We don't know until the next court case.

  2. I misread something from my previous comment — the opening for fan-compiled encyclopedias in this decision is huge, in that it differentiates between plot summaries for the purpose of retelling a work and for the purpose of reference (assuming that the original language is not used).

  3. I don't think this was a win or a loss for fan fiction per se. While I agree that the opening for reference materials, such as encyclopedias, is relatively large, there wasn't that much talk about creative fan fiction such as sequels or side plots. Those, I think, would likely be seen as derivative works and likely infringements if tested in a court simply because they were build upon previous plots.

    However, the moral to writers, if you don't want a fan-written encyclopedia, create your own first. That seems to be the simplest way…

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