Nine years after the last Harry Potter book and five years after the final film, video editor, Justin Zagri, created a 25-minute fanfiction prequel detailing the adventures of Harry’s parents and friends after they graduated from Hogwarts. The characters appearances’ and behaviours are just as J K Rowling described in her novels.

Cyberspace is swarming with fan-creators producing various types of fanworks – fan films, fan art or fanfiction. The Harry Potter series has generated a variety of fanworks by fans who are looking to recreate and relive the magic of Hogwarts for as long as possible. Star Trek and 50 Shades of Grey are also popular inspirations.

Fanworks are flattering –  fans who love the fictional world to the extent they want to develop the world and the characters beyond the limited works the author has provided. But does this mean fanwork has an exemption to general copyright laws? Or is it possible that in their genuine appreciation of the characters and stories, fanworkers are infringing copyright?

How Does Copyright Apply?

If copyright subsists in the original work, the copyright owner has the exclusive right to reproduce the work and communicate it to the public. Copyright protects the expression of the work, not the idea. This can mean that a similar plot or setting may not constitute copyright infringement, but a story where characters have very similar traits or do very similar things to original works may be infringing.

The question is then whether a substantial part of the work has been reproduced – not just in quantity, but whether the copied part is a significant or essential part of the whole work. Fanwork generally consists of references to major plotlines and builds on characters and their relationship.

The Parody and Satire Fair Dealing Exception

The US has a fair use exception to copyright infringement which may protect fanfiction after considering the following: 

  • The extent to which it transforms the underlying work; 
  • The work must be expressive rather informative; 
  • The work must have a purpose beyond copying; and 
  • The effect or harm on the market for the original work. 

Australia’s equivalent to fair use is the fair dealing exception which is narrower in scope and prescribes categories. The most appropriate exception for fanfiction is work created for the purpose of parody and satire. But this defence is untested and as such, it is unclear how the courts approach the parody and satire exception, and whether it would capture all fanworks. At this stage, it is likely that fanworks would not be exempt from copyright infringement.

The Purpose of the Fanwork

Importantly, fanworks are characteristically not produced for commercial gain. Fans usually create the work because of their enthusiasm and appreciation for the original. In fact, the usual target audience for fanwork is generally more fans. Fans are the ones who will truly appreciate fanwork and a considerable amount flies under the rader of copyright owners. 

Publishing work on the internet means that the audience is much wider, and it also increases the likelihood that copyright owners would notice. It is up to copyright owners to decide whether to pursue a copyright infringement action or whether to let it slide. Factors they may take into account is whether the fanwork is generating money for the creator, or whether it is harming their own moral rights attached to the original work.

We can see this in another Harry Potter example – the Harry Potter Lexicon, an American encyclopaedia for the Harry Potter world. Both J K Rowling and Warner Bros knew about the fan website that had been running for many years but only took legal action when they heard that the site intended to publish the encyclopaedia as a book for sale. Rowling and Warner Bros were successful in stopping the Harry Potter Lexicon from being published as a book.

What are Moral Rights?

Moral rights attach to copyright so when copyright is transferred or assigned to another party, moral rights remain with the original creator. Under Australian copyright law, there are three types of moral rights:

  1. The right of attribution and identifying the creator in some way;
  2. The right against false attribution and having someone else claim that they created the work; and
  3. The right of integrity and protection from having their work treated in a derogatory or disreputable way.

Moral rights and copyright work differ and so even if a creator is unable to claim copyright infringement perhaps due to a fair dealing exception, they may be able to pursue an action in moral rights.

The right to attribution and right against false attribution are not usually in question when it comes to fanfiction. Fans typically acknowledge the original creator and state that it is not based on their own work. It is the third right concerning integrity that could pose a threat. Some artists may not tolerate any fanworks and send cease-and-desist letters to each fan author they come across, whereas others may vary case by case depending on the treatment of their material.

Key Takeaways

Fanworks can indeed be considered a copyright infringement if copyright subsists in the original work. The author or creator has the right to pursue an action against the fan both under copyright law and through their moral rights.

It is often the case that the original author doesn’t pursue fans for copyright infringement, and the fanwork is produced with good intentions, and not necessarily for any commercial gain. However, as a fan, ask yourself whether you are writing fanfiction to make money and whether it may affect the market of the original. Questions? Get in touch with our intellectual property lawyers.

Dhanu Eliezer

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