Legal Scenario: Slytherin!Rowling vs. the Fanfic Author

[serenadust <jmmears@comcast.net>]

--- In HPFGU-OTChatter at yahoogroups.com, "Caius Marcius 
<coriolan at w...>" <coriolan at w...> wrote:
> Here's a hypothetical scenario I was pondering the other day 
> involving the legal status of fanfic vs. the original author's 
> creations. I'll use JKR and the Harry Potter series merely to 
better 
> illustrate the situation I have in mind. (I don't mean at all to 
> suggest that the real JKR would stoop to the type of behavior I 
> outline below)

<Snip hypothetical Rowling not wanting to bother with writing the 
rest of the series>
> 
> Slytherin!Rowling then becomes acquainted with the phenomenon of 
> fanfic, and hatches a snaky scheme worthy of Gilderoy Lockhart 
> himself. She plagiarizes the best parts from two or three high-
> quality full length novelizations of Year Five, with only minor 
> changes in wording and releases it on May 21, 2003 (hey, this is 
an 
> alternate universe) under the title Harry Potter and the Order of 
the 
> Phoenix. The alternate-OoP has no acknowledgement that was largely 
> derived from fanfic written by other writers. The book is once 
again 
> a huge success with fans, 99.99% of whom are unfamiliar with the 
> original fanfic works.
> 
> Neville L., an avid and skilled fanfic writer, is shocked to 
discover 
> that whole chapters of his work were incorporated into Order of 
the 
> Phoenix, with only minor rewording. Neville gets several e-mails 
from 
> his friends & readers who also note the resemblance – they are
all 
> sure that Neville must have collaborated with JKR, and are anxious 
to 
> know how Neville met her. Unsure how to respond, Neville contacts 
a 
> lawyer well versed in copyright law. 
> 
> If he had written an original work of fiction, Neville would 
> obviously have grounds to bring charges of plagiarism against 
> Sytherin!Rowling.  But since the characters were all her 
creations, 
> Neville is concerned that he might be facing plagiarism charges 
> himself if he tries to collect damages in court. 
> 
> How would the lawyer respond? Does fanfic have any kind of 
copyright 
> protection vis-à-vis the original author? Could the original 
author 
> legally "borrow" from fanfic inspired by her writings, without 
> permission or acknowledgement? 


I'm not an attorney and obviously have no professional expertise in 
this area, but I think that poor Neville is well and truly screwed.
Based on the little I've read on the topic, fanfic occupies a very 
hazy netherword, legally.  It's only the fact that the authors 
receive no monetary compensation for their creations that, for now, 
allows the phenomenom to continue to be unrestricted.  What would 
Neville be asking the court to do?  Give him credit on the book 
jacket?  Actual monetary compensation?

If he did ask for either it's likely he could expect to be counter-
sued for trying to profit for his use of someone else's creation, 
and rightly so.  No matter how distasteful the above scenario is, we 
all know who all the characters "belong" to, and it's not anyone 
writing fanfic. IMO anyone who writes fanfic does so accepting the 
risk of the above (extremely unlikely) situation.  Fortunately, I 
think that Rowlings talent and integrity make it impossible for your 
scenario to ever take place.  However, it does seem plausible that a 
lesser original author (or TV writer, etc) could actually take the 
action you've outlined above and the fanfic author wouldn't be able 
to do anything about it.  It's the price you pay for using someone 
else's creation as the basis for your own stories.

Thanks for asking such an interesting question.  I'm curious to hear 
opinions from those who do have legal expertise, as well as people 
who actually do write fanfic.

Jo Serenadust