April 22, 2009

Fan Fiction and the RDR Books Decision

Megan L. Richardson, University of Melbourne Law School, and David Tan have published The Art of Retelling: Harry Potter and Copyright in a Fan-Literature Era as 14 Media & Arts Law Review 31 (2009). Here is the abstract.

Simple assertions that fans are harmless may be belied by the copyright cases threatened and launched by authors of popular fictional works, against fans who write secondary works based on distinctive elements of the original stories. On the other hand, it may be that authors are too possessive of their creations, seeking to control their imaginary afterlives. The story of Warner Bros v RDR Books - the Harry Potter Lexicon case - provides a vehicle to examine the conundrum. The decision of Patterson J in the US District Court seeks to navigate a fine line between original authorial control and literary activities of fans, in suggesting that, in the main, fan literature should be encouraged and protected as fair use for copyright law purposes. However, the judge faced an uphill battle in countering Rowling's insistence that she was entitled to exercise control over all products derived from her 'nominative genius'. In the decision's aftermath, Rowling has elected to support rather than challenge a new version of the Lexicon, which seeks to incorporate substantially more commentary than the original version. However, we wonder what breathing space will be left for fan fiction.

Download the article from SSRN here.

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