Professor Aaron Schwabach’s latest book Fan Fiction and Copyright: Outside Works and Intellectual Property Protection (Ashgate; 2011) takes up a very complex and complicated subject: Do published authors have a legal claim over the writings created by their own fans using the author’s characters?
Fan fiction (“fanfic” or “fanworks” for short) is the practice of fans picking up where an author leaves off and writing their own, usually unauthorized versions of a story, using the same characters and developing their own plotlines. Much of it appears on the internet.
“Fanworks are outsider works,” according to Professor Schwabach. “For the most part they’re written by people with no commercially published works of their own, and they’re ignored, scorned, or sometimes attacked by commercial publishers. Through fanfic, the fans are telling the story too, and taking it in directions the author might have avoided. While an individual fan’s voice would be lost, the magnifying power of the internet lets the fans collectively be heard – even by the author.”
It goes without saying that fanworks lead to copyright disputes.
“It was these copyright concerns that prompted me, back in 2009, to publish an article on fanfic in the University of Pittsburgh Law Review, titled “The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright,” says Professor Schwabach. “The 2009 article addressed three individual instances of disputes between authors and fans over fan works, including the Harry Potter Lexicon referred to in the title.“
Professor Schwabach says that in doing the research for the article, he realized there was a lot of material that wouldn’t fit into an article, but more than enough for a book.
According to Professor Schwabach’s publisher, Ashgate: “Fan Fiction and Copyright looks closely at examples of three categories of disputes between authors and their fans: Disputes over the fans’ use of copyrighted characters, disputes over online publication of fiction resembling copyright work, and in the case of Harry Potter author J.K. Rowling and a fan site webmaster, a dispute over the compiling of a reference work detailing an author's fictional universe. Offering more thorough coverage of many such controversies than has ever been available elsewhere, and discussing fan works from the United States, Brazil, China, India, Russia, and elsewhere, Fan Fiction and Copyright advances the understanding of fan fiction as transformative use and points the way toward a ‘safe harbor’ for fan fiction.”
Professor Schwabach has written scholarly articles on the Harry Potter series, and he’s a fan of fantasy worlds himself.
“Fan fiction has been an interest of mine for a while,” says Professor Schwabach. “I’m a fan of any number of fictional universes: Harry Potter, Lord of the Rings, Legend of Aang/Korra… and while there are plenty of other fandoms that don’t appeal to me in quite the same way, I understand and respect the fannish impulse underlying them.”
In Fan Fiction and Copyright, Professor Schwabach examines the link between fannish impulses and copyright infringement. It is fascinating new legal territory and these issues will no doubt create new caselaw along the way. Professor Schwabach hopes the emerging legal regime preserves ample space for fanworks. “Fanworks build markets and enhance the fans’ appreciation of the underlying work. If the end result is that copyright law gives content owners greater power over those works, that power must be tempered with commensurately greater responsibility.”