REPOST: Re: Legal Scenario: Slytherin!Rowling vs. the Fanfic Author

[heiditandy <heidit@netbox.com>]

I caught a BAD typo and deleted my original. If you get this via 
digest, forget what you just read, and reread my first paragraph 
here. if you get it via email and read this first, delete the other. 
Thanks!
--- In HPFGU-OTChatter at yahoogroups.com, "heiditandy <heidit at n...>" 
<heidit at n...> wrote:
Caius wrote:

> 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? 


Le grand sigh.

Where do I begin?

1. There is no such thing as a plagiarism charge. No such thing 
as "grounds of plagiarism". They do not exist as legal concepts at 
all - not in the US and not in the UK. There is, however, a private 
right of action in copyright infringement. Plagiarism has no place in 
a legal analysis. 

That aside...

2. There is no copyright for an idea. In other words, if Neville's 
ideas were all used, but none of his actual, original word choices, 
then there would be no copyright infringement going on. 

3. Copyright vests in a work at the moment the work is fixed in a 
permanent and retrievable form. Therefore, copyright vests in fanfic 
at the moment it is written, at least for all the work that is 
original. 

4. One could take *word for word* selections from one's fanfic, and 
transmogrify them into an original story, and the entirity of the 
original story would be protected by copyright, despite the fact that 
portions of that work originated as fanfic. 

5. However, it is unlikely that a fanfic writer can obtain full 
copyright protection for his or her own work. As Rebecca Tushnet 
wrote in her 1997 law journal article (which she told me last month 
is somewhat out of date, but on this matter, it does stll hold), 
<<Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983), 
illustrates the problem. Gracen entered a contest that asked for 
paintings of Dorothy in Oz. The defendant told the contestants, "your 
interpretation must evoke all the warm feeling the people have for 
the film and its actors. So, your Judy/Dorothy must be very 
recognizable as everybody's Judy/Dorothy." Gracen's paintings won the 
contest because passers-by at a shopping center liked them best. When 
Gracen could not agree on payment with the defendant, the defendant 
hired another artist to reproduce her painting for its commemorative 
plates. The court held both that Gracen could not copyright her 
painting of Dorothy and that her painting might be a copyright 
infringement. >>

She also writes: To prevent fan authors from claiming their ideas 
have been stolen by the original copyright holder, it makes sense to 
hold that fan fiction cannot itself be copyrighted, but that 
conclusion does not require the further step of considering fan 
fiction an infringement. Indeed, the law could allow fan authors to 
copyright their writings and hold that the original copyright holder 
has a unique privilege or implied license to use them. There is no 
reason fan authors should receive all or nothing when intellectual 
property law is replete with partial rights. 

However, Rebecca notes, and I concurr, that the above is simply an 
idealization/extrapolation of the current copyright-law-take on 
fanfic and the standards and practices of most fanfic writers. It is 
not actually the law in any jurisdiction in the US, in part because 
there is no caselaw regarding internet- or zine-published fanfic (in 
contrast to movie treatments and published-and-sold-in-bookstores 
works, both of which are the subject of at least one published 
case).  

Actually, derivative works are protectable under copyright law, as 
shown in the following selections from the Copyright Act:

A "derivative work" is a work based upon one or more preexisting 
works, such as a translation, musical arrangement, dramatization, 
fictionalization, motion picture version, sound recording, art 
reproduction, abridgment, condensation, or any other form in which a 
work may be recast, transformed, or adapted. A work consisting of 
editorial revisions, annotations, elaborations, or other 
modifications, which, as a whole, represent an original work of 
authorship, is a "derivative work".

17 USC §103(b) says this about derivative works:

The copyright in a compilation or derivative work extends only to the 
material contributed by the author of such work, as distinguished 
from the preexisting material employed in the work, and does not 
imply any exclusive right in the preexisting material. The copyright 
in such work is independent of, and does not affect or enlarge the 
scope, duration, ownership, or subsistence of, any copyright 
protection in the preexisting material.

Accordingly, IMNLALO (in my "no legal advice!" opinion), Neville 
should actually sue Rowling over this and make some great caselaw. 
And reliance on 17 USC 103(b) would allow a solid argument that the 
original work contained in the fanfic is entirely protectable by 
copyright - and that he *owns* that copyright. 

Further, he'd have some excellent cases on his side, including the 
recent Barbie Girl decision (gotta love that Judge Kozinski!) as well 
as The Wind Gone Done, from about two years ago. The proportion of 
original content in your average novel-length fanfic is tremendous, 
and to say that such content should be utterly unprotectable by 
copyright seems to fly in the face of longstanding caselaw on the 
copyright status of transformative and derivative works. 

Of course, in the real world JKR's already said that (a) she's read 
some fanfic, and (b) she has no problem with "innocent" fanfic 
(whatever the heck that means) by genuine fans, which of course we 
all are...

So the weird thing about this is (assuming JKR hadn't created a 
laches/aquiesence situation regarding fanfic (this *is* an AU!)) that 
JKR could go after Neville for copyright infringement regarding her 
copyright in her characters. And he could countersue for her use of 
his words in her novel. 

Would be *quite* fun.

Of course, there may've been a case in the past 2 days which 
invalidates everything I've said here, so don't take it as absolute 
truth. Furthermore, none of the above applies outside the US. 


heidi
--- End forwarded message ---