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 Chilling Effects Clearinghouse > Fan Fiction > Notices > Harry Potter Adult Fan Fiction (NoticeID 534, http://chillingeffects.org/N/534) Printer-friendly version

January 22, 2003

 

Sender Information:
J.K. Rowling
Sent by: Theodore Goddard
Theodore Goddard
London, EC1A 4EJ, UK

Recipient Information:
[Private]
www.psa.shadow-wrapped.net
Canberra, ACT, 2614, Australia


Sent via: email
Re: Harry Potter Adult Fan Fiction

Dear Sir:

Harry Potter adult fan fiction

We are a firm of solicitors (attorneys) in London. We have been consulted by our client Christopher Little Literary Agency, on behalf of Ms J. K. Rowling and by our client Warner Bros, in connection with the Harry Potter adult fan fiction and illustrations made available by you at URL http://www.psa.shadow-wrapped.net .

As you are aware, Ms Rowling is the author of the Harry Potter books. Ms. Rowling therefore owns the copyright in the Harry Potter books. The sexually explicit content of the fan fiction and illustrations available at www.psa.shadow-wrapped.net, which are plainly based on characters and other elements of the fictional world created by Ms. Rowling in the Harry Potter books, are a matter of serious concern to our client. In addition, our client Warner Bros, which owns the film and merchandising rights to the children's series of Harry Potter books, is concerned to protect the integrity of its Harry Potter properties. For the avoidance of doubt, our clients make no complaint about fan fiction written by genuine Harry Potter fans.

There is plainly a very real risk that impressionable children, who of course comprise the principal readership of the Harry Potter books, will be directed (e.g. by a search engine result) to your sexually explicit website, which you will appreciate most people would consider wholly inappropriate for minors. Plainly the warnings to the effect that children under 18 should not access your website do not in fact prevent minors from doing so. Indeed such warnings may well serve simply to entice teenagers to your site.

You have chosen to publish the material in question on the worldwide web where it may be seen by anyone with access to the internet. If you choose to publish to the world at large, then in our view you should conduct yourself accordingly. It is no answer to suggest that the fault lies with the children, or their parents, if they visit your website, whether they do so inadvertently or otherwise. We see no reason why online publishers should consider themselves relieved of the responsibilities and legal obligations accepted by publishers in every other medium, and the Courts of both England and Australia take the same view.

In the circumstances, our clients therefore request you to remove all such material and cease making it available lo the general public on the internet or by any other means. Would you please let us have your confirmation that you will do so by no later than 18:00 GMT on Wednesday, 29 January 2003.

Yours faithfully,


[private]

image pages: 1 2 3

 
FAQ: Questions and Answers

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Question: What is FanFic?

Answer: Fan Fiction (FanFic) is a genre of amateur creative expression that features characters from movies, TV shows, and popular culture in new situations or adventures.

The vast majority of these stories and poems are written by fans with no commercial interest who disseminate their work over the Internet, email lists, or newsgroups. The word "Fan," however, might not be the most appropriate term since not all FanFic is created by people who are truly "fans" of the original work as the term is traditionally used. Regardless of whether FanFic authors are really fans, owners of original works often do not look favorably upon these works. In response, the owners of the rights often try to stop the creation of FanFic through cease and desist letters and the threat of lawsuit.


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Question: Do fan fiction writers have a free speech right to publish their work?

Answer: The First Amendment protects free speech, but there is also a copyright clause in the Constitution. These two legal rights are often in conflict, and so the rights of fan fiction writers to write and speak freely and the rights of the copyright owner must be balanced. Each situation can be researched and individually evaluated, but it is important to understand there are no easy answers as to who has a right to the characters.
Copyright law is designed to encourage authors to be creative by rewarding their efforts and protecting their work from others who might profit unfairly. This right must be balanced by society's need to have others not be limited by previously published protected works. There is not a clear "right" and "wrong" side in the battle between copyright owners and fan fiction writers.


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Question: Is FanFic an illegal act of copying?

Answer: If a Fan Fiction author uses copyrighted elements in someone else's work in his/her story, then the fan fiction may be a derivative work. There are many elements of a work that an author can borrow. The law, however, does not clearly define whether fictitious characters, worlds, histories and names are copyright protected.


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Question: Is sexually explicit Fan Fiction protected by the First Amendment right to free speech?

Answer: Yes. However, sexually explict materials receive different levels of First Amendment protection. For example, child pornography and obscenity are not protected by the First Amendment. In Miller v. California (1973), the Supreme Court, in a 5-to-4 vote, ruled that material could be banned as obscene if it met a three-part test:

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
2. The work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Material that meets all three parts is obscene and outside of First Amendment protection. Under the decision, only "ultimate sexual acts" could be forbidden, and relevant community standards were local, not nationwide.

Non-obscene pornography, indecent and other "adult" materials do receive some level of First Amendment protection.


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Question: What are the major elements of FanFic?

Answer: In general, FanFic involves a combination of established characters, established "worlds" (i.e., the setting or universe relating to the established characters) and established histories (the events described in the work involving the characters in their worlds) from current works. What FanFic authors add could include new characters, new worlds and new histories. Another form of adding originality is by detailing (or extending) certain characters, parts of worlds and histories that received little attention by the original author. The major possible violations are therefore copying, performance or display of existing characters and plots, creation of derivative works without the copyright holder's consent and prohibited use of trademarks belonging to the original work.


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Question: What about a fictional world and the events described in the world? Are they copyrightable? Can I use those in my story?

Answer: It seems unlikely that a FanFic work would include no previous characters but it is not impossible to imagine. Take Tolkien's "Middle-earth" world for example: this world has been taken without the main characters and has been used in role playing games (RPGs) and video games (see the TSR example below). For these cases, it is important to remember that copyright does not extend to ideas. Therefore, incidents, settings or other elements which are indispensable, or at least standard, in the treatment of a given topic are ideas and cannot be copyrighted. For example, the Court of Appeals for the Second Circuit has held that "elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx." These "scenes a faire" are therefore unprotected. Likewise, the Seventh Circuit has held that mazes, tunnels and scoring tables are unprotected under the scenes a faire doctrine in video games like Duke Nukem.


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Question: Can I take a character from a movie, like Chewbacca from Star Wars, and use it in a play with a very different plot and otherwise different characters?

Answer: Probably not.? The people who hold copyright in Star Wars own the characters as well as the plot, the filmed images, etc.  Placing a distinctive fictional character in a different context or medium is still copying that character, and therefore infringement.   However, if you use the character for the purposes of parody or criticism you might be making a legitimate fair use of the character.  Note that in one case involving Walt Disney, Inc. and a comic book publisher, the comic book publisher argued that his use of the images of Mickey Mouse, Minnie Mouse and Donald Duck was satirical, and therefore fair use.  The Ninth Circuit rejected the fair use argument, reasoning that the comic book took more of the images than was necessary to suggest the characters in the minds of the readers and therefore exceed the bounds of fair use.  See Walt Disney Productions v. Air Pirates, 581 F. 2d 751 (9th Cir. 1978).


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Question: What rights are protected by copyright law?

Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.


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Question: What is fair use and how does it relate to Fan Fiction?

Answer: The fair use doctrine says that otherwise copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is "fair use" or not, courts consider:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Parody is also fair use.

Under this doctrine, artists have been permitted to create and display their art even if it uses copyrighted works of others. See Court Allows Artist to Sell Barbie Art, for an example.

There is a strong argument that many fan fiction stories are transformative since they create a different persona and set of events for the character. To create a new story cannot be seen as the same as posting video clips on a website. There must be a balancing between protecting copyrights in order to encourage innovation by authors and between allowing works to be in the public domain to allow creative uses.

Whether a court will view this as the case for a particular work of fan fiction depends on how much of the story relies on copyrighted materials, whether the story is sold, or affects the market for the copyrighted work, and other factors. There is no easy answer to the question, which is why it is often a good idea to consult a lawyer who can assess the particular facts of your case.


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Question: What issues arise if my FanFic content is inappropriate for minors?

Answer: Age verification warnings may limit the possibility of a minor having a
chance encounter with unsuitable material. Some sexually-explicit content
providers use age verification because they feel that industry-wide self
regulation will help quell the congressional demand for stricter online
content regulation.

Most states have laws that prohibit the distribution of sexually-explicit
material to underage people. In California, for instance, it is a crime to
distribute material "to a minor with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or of a
minor..." Cal. Pen. Code


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Question: What is the effect of an age verification warning on a copyright claim?

Answer: Age verification has no effect on copyright claims. The validity of a copyright has to do with the similarity between the alleged infringing work and the original work, not with its suitability for minors.


[back to notice text]


Question: Do fan fiction writers have a free speech right to publish their work?

Answer: The First Amendment protects free speech, but there is also a copyright clause in the Constitution. These two legal rights are often in conflict, and so the rights of fan fiction writers to write and speak freely and the rights of the copyright owner must be balanced. Each situation can be researched and individually evaluated, but it is important to understand there are no easy answers as to who has a right to the characters.
Copyright law is designed to encourage authors to be creative by rewarding their efforts and protecting their work from others who might profit unfairly. This right must be balanced by society's need to have others not be limited by previously published protected works. There is not a clear "right" and "wrong" side in the battle between copyright owners and fan fiction writers.


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Question: What if the alleged infringement happens outside of the U.S.?

Answer: International rules including the TRIPs Agreement and the Berne Convention allow the U.S. to enforce its copyright rules under local laws in over 100 participating nations.


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Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright?

Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint.

If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials.


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