I must admit, I’ve received a lot of comments and spoken quite a bit with people from the Harry Potter porn fan fic community since my post on how underage Harry Potter fan fic is immoral and borders on pedophilia. That is my opinion on the subject. As a result, I’ve been blasted across the Harry Potter porn web community for daring to tell people they are wrong for something.
Honestly, I care little for the opinions of those who appear to lack the creativity to develop their own stories and characters. These people are stealing copyrighted material, which is copyright infringement, and quite frankly they don’t care. It shows a lack of respect for the author, their work, and the characters these individuals claim to love so much. Of course, my opinion on this matter means little as I am just some writer with a blog (or twelve). However, shouldn’t the opinion of the author matter? Shouldn’t they have ultimate say in what is done with their characters?
Copyright Infringement: Laws & Information
First, let’s examine copyright infringement laws. I’ve looked up specific rules when it comes to fan fic in particular. Here’s what I’ve learned and can share with you when it comes to copyright infringement.
Chilling Effect writes: “When authors write stories featuring characters from other stories, movies or TV shows in new situations or adventures, these works of “fan fiction” may run into legal challenges because the borrowed characters, scenes or plots may be protected from unauthorized use under intellectual property laws.”
The site goes on to say: “copyright owner can stop someone else from (1) copying, (2) distributing, (3) performing, or (4) displaying the characters without the permission of the owner. The owner also can stop someone from (5) creating “derivative works”. A derivative work is a new work based on someone else’s intellectual property.
Based on this assessment of copyright laws, it would stand to reason that any type of fan fic, whether it is porn or not, is a form of derivative work. Therefore, the person writing the fan fic can be liable if the author wishes to pursue legal action to prevent them from using their characters and/or storylines in any type of written work available online or offline This does not prevent anyone from actually fantasizing at this point if it is not written out, but you would think it would be preventative in the actual writing and distribution of such stories.
I should add that in relation to underage fan fic and the like, in the United States specifically, there is little to no protection for this work under the First Amendment. Chilling Effect notes a case, which attempted to discuss this in relation to child pornography in fan fiction.
“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.”
Additionally: “Both “indecent” material and material “harmful to minors” can be regulated to some extent by the government. Indecency is defined as language or material that, “in context, depicts or describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.” Action For Children’s Television v FCC, 11 F.3d 170, 172 (D.C. Cir. 1993)
“Harmful to minors” means any written, visual, or audio matter of any kind
1. the average person, applying contemporary community standards, would find, taken as a whole and with respect to minors, appeals to a prurientinterest in nudity, sex, or excretion, and
2. the average person, applying contemporary community standards, would find depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, ultimate sexual acts, normal or perverted, actual or simulated; sadomasochistic sexual acts or abuse; or lewd exhibitions of the genitals, pubic area, buttocks, or post-pubertal female
3. a reasonable person would find, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. Ginsberg v New York, 390 U.S. 629 (1968).”
What is Copyright Anyway and how does it apply to Fan Fiction?
A.T. Lee discusses fan fiction completely in relation to copyright at Copyright 101. Through the guide, which is written as a specific copyright guide for fan fiction authors, the various types of copyright laws are examined and dissected.
Lee lists the following copyright laws:
1. The Copyright Act of 1909
2. The Copyright Act of 1976
3. The Universal Copyright Convention (“U.C.C.”)
4. The GATT Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)
Lee defines copyright as, “Copyright is a bundle of exclusive intellectual property rights granted to “Authors” for a limited time. A creator of any copyrightable work is an “Author”.”
I should note, depending on who owns the copyright, it can be extended past the initial time an author is given the copyright for their work. So, how long is that? Lee also lets fan fiction authors know how long copyright lasts, so there should be no question about whether their work is copyright infringement or not.
“For works created on or after January 1, 1978: Single Author:
-single term of life + 50 years
-Author has the right to terminate any transfer of copyright after 35 years”
A.T. Lee’s thoughts on fan fiction based on interpretation of the laws of copyright are as follows, and considering J.K. Rowling holds copyright pretty much around the entire world, this applies to all areas where copyright law applies.
“Well, you can’t derive your work from someone else’s work or copyright her work without her permission. Therefore, technically, all fan fictions, which are derivative works, are copyright violations. While many copyright holders turn a blind eye to such works (like our TPTB), they don’t have to be so nice about it. In the end, it’s completely up to the owner of the copyright to decide whether or not to enforce her rights, and prosecute the infringers.”
In relation to international laws on copyright Lee also notes that “there’s no such thing as international copyright that would provide worldwide protection to an Author’s work. Nevertheless, most countries have copyrights laws that would provide protection to the works of foreign authors.
Many countries nowadays are either signatories to the Berne Convention or to the U.C.C., both of which would provide National copyright treatment.”
What does this have to do with J.K. Rowling?
I fully admit that I am not a J.K. Rowling fan. I am not fond of her writing or her stories. I can, however, respect her for her development of her own characters, world, and story. I can respect the fact that J.K. Rowling owns the copyright to Harry Potter, Draco Malfoy, Sirius Black, Hermione Granger, Ron Weasley, and the list goes on. Furthermore, I respect her right to take legal action against those who are infringing on her copyright, and it is no secret that J.K. and her agent, Christopher Little, has taken action against sites writing adult Harry Potter fan fic before.
In one instance, J.K. Rowling and Warner Bros. (who own the film rights)’ attorneys refer to those who write non-adult fan fiction as “true and genuine” Harry fans. This is to imply those who write adult fan fiction are not true fans and are not genuine in their intentions when it comes to Harry and the other Harry Potter characters.
Chilling Effects has the letter from her attorneys to a specific online website, which states, “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.”
It goes on to say this in relation to why they do not approve, condone, or warrant the writing or use of adult fan fiction. I believe I’ve pointed this out as one reason on why adult fan fiction should not be condoned on the Internet.
“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.”
Their request was simple. “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.”
I don’t understand why those who write adult fan fiction do not get the fact that authors do not like their characters being used in such ways. It’s simple to understand when it’s written so clearly in black and white. So, what authors are against fan fiction or adult fan fiction? I’ve compiled a small list of those I know.
Guy Gavriel Kay – Against fan fiction due to issues of copyright. Information on this found on another writer’s blog.
Anne Rice: Is against all unauthorized use of her characters including roleplay and fan fiction according to posts on her official website.
Teresa Nielson Hayden & Patrick Nielson Hayden – For fan fiction though I’m not sure what their stance is on adult fan fiction. This is posted on their blog.
J.K. Rowling: Is against adult fan fiction, and views those who write it as non-genuine Harry Potter fans. Fine with fan fiction true to how she wrote the characters. Information on this was found in letters from attorneys to a site in violation of copyright infringement.
Laurel K. Hamilton: Willing to turn a blind eye, as long as she does not find the work of fan fiction, though appears to be not overly fond of it. This was according to her assistance in an email I received when asking her take on fan fiction.
Stephen King: No official stance, but believes in thinking up his own ideas. Most sites, do not allow Stephen King fan fiction so I’m assuming this means he is against it. Please note that this is only an assumption.
I’m sure there are more, but these are just the big ones I know have stances. Please let me know if you know the stances of other authors, by leaving a comment.
Chilling Effects Clearinghouse. Fan fiction and Copyright. URL. Accessed on August 21, 2007.
Chilling Effects Clearinghouse. J.K. Rowling’s Letter from her Attorneys. URL. Accessed on August 21, 2007.
Lee, A.T. (1998). Copyright 101: A BRIEF INTRODUCTION TO COPYRIGHT FOR FAN FICTION AUTHORS. URL. Accessed on August 20, 2007.