Fun Facts About Copyright Law

Can you get your book published if it has some elements based on a fanfic you wrote?

Unless the original canon is out of copyright (such as Arthur Conan Doyle’s Sherlock Holmes; witness BBC!Sherlock and CBS’s Elementary), isn’t that against copyright law?

Won’t the publishers come after you with a bazooka?

Believe it or not, the answers can be no, no, and no… but you do have to be very careful. This essay outlines the reasons why. Fanfic authors who are interested in getting work published that is based or inspired on their original fanfics in any way have GOT to read this. And for everyone else, it’s a fascinating look at what copyright really is (and isn’t.)

Obligatory Disclaimer:
I am absolutely, positively not a copyright lawyer. But I do know how to do research. 🙂

So what exactly does copyright law have to say, anyway? In the United States, issues of copyright are defined in copyright law itself. To learn more, you can read this:
The Entire Set of Laws in Excruciating Detail from the Official Government Site

Or you could always read Wikipedia:

Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution. The power to enact copyright law is granted in Article I, Section 8, Clause 8, also known as the Copyright Clause, which states:
The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

However, law in the U.S. evolves through specific legal precedents, not just existing law. So those are what we’re going to be talking about here. Let’s use an example: say that you wrote a fic about Draco and Ginny and their adventures riding polar bears in Antarctica, and now you want to see if there’s some way to bring in all of that work you did when you write your published book. We’re going to go through each type of example, and then the cites will be at the bottom. (If you’re actually trying to get published, I REALLY would read those.)

1.) Are you using an idea, or are you using a specific expression of an idea?

Ideas can’t be copyrighted. You definitely could use the idea of Draco and Ginny being able to use magic in some way when those ride those bears, as long as you avoid elements that are easily identifiable in Harry Potter canon. So you clearly can’t CALL them “Draco” and “Ginny.” You can’t have them yell “Alohamora!” every time they try to get into an igloo. You can’t describe Draco’s wand as looking exactly like the one in canon. (Yes, I do have it upstairs in a box. Why do you ask? 😉 ) Basically, you can’t write anything that would make someone say “Oh, I can see exactly where that came from.”

What you can do is to write and publish a fic that has your Draco and Ginny’s characterizations, your interpretation of their relationship, and your concept of how the plot would develop, given these parameters. These definitions should not be the same as they are in canon, and they should not have any elements that are easily identified from canon. But if they were originally inspired by canon, that’s okay. That’s what the situation was with Fifty Shades.

Let’s say that Renamed Draco thinks he can kill a polar bear, and whether or not he’s going to get ultimate power depends on him killing a polar bear, but when he’s faced with that poor innocent bear, he just can’t do it (and none of the details or the scenes themselves have any similarity to the way he couldn’t kill Dumbledore in HBP.) That’s okay. Or let’s say that Renamed Ginny was traumatized as a child, and that the situation somehow involved the input of Renamed Lucius Malfoy. If you do not have a chamber, Tom Riddle, a diary, Voldemort, Hogwarts, a basilisk, the specific sequence of events, or any other detail that clearly came from canon, that’s okay.

2.) Are you using the original material and doing something “transformative” with it?

Let’s say that you actually call your characters Draco and Ginny, but the entire book is a funny parody of canon from beginning to end. (For example, I’m also working on a book called Harry Potter and the Big Book of Boys’ Naughty Bits.) That’s okay.

Parody doesn’t have to be funny, though. Let’s say that your characters are called Draco and Ginny, but the entire book interprets the original canon in a way that makes it a serious analysis and commentary on some disturbing elements in it, such as the headmaster of a school planning all along to use a child as a sacrificial lamb and the concept of Voldemort being an unredeemable character from the very beginning. Alice Randall’s The Wind Done Gone is a very good example of this—she used characters and events from Gone With the Wind in a way that criticized and commented upon the themes and ideas in Gone With the Wind.

But here’s how you can get into trouble with transformative use. You cannot publish satire, which uses a part of an original work in order to parody something else. Let’s say that you write a new song about the fact that the literary use of vampire themes just never seems to die, and you spend the entire song saying mean things about Twilight. That’s okay. You’re talking about a work itself. But if Draco and Ginny are trading verses in the song, you can get in trouble. All you’re doing with the Harry Potter material in that case is using it in order to make fun of something else.

You probably can’t use the original Harry Potter characters to write a work in which all you do is make fun of J.K. Rowling rather than the books themselves. People have gotten into trouble that way, too. And then there’s the case of Steve van der Ark—it’s in the notes. There’s another rant about copyright and profit which I put in note 3, because, well, it’s a rant, and y’all can decide whether you want to read it or not!

So the final answer is that just because elements in your book came from fanfic of a canon work and/or were inspired by the work itself, that does not mean that you will necessarily have a problem with copyright law. However, you must be careful. For more information, consult your local copyright lawyer. Which I am not, and I don’t play one on TV! 😉


(1) Basically, as courts have ruled from Baker vs. Selden (1879) to Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985) and beyond, “no author may copyright his ideas.”As a result, “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” (Eldred, 537 U.S. at 219.) Copyright thus “assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by the work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991).
Parody is perhaps the easiest example to define and understand. In Dr. Seuss II, 109 F.3d at 1400-01, parody is defined as the use of a work or some portion thereof in order to “hold it up to ridicule, or otherwise comment or shed light on it.” A humorous parody, much like U.S. Supreme court justice Potter Stewart’s famous definition of pornography, tends to be one of those things that “you just know when you see it.”An example would be Bored of the Rings, written in 1969 by Henry N. Beard and Douglas C. Kenney, who later founded National Lampoon.

But as we see in the case of Alice Randall’s The Wind Done Gone, a work can be a parody without necessarily being funny. TWDW was ruled to be a “historical parallel novel that reinterprets the famous American novel Gone with the Wind.” Campbell v. Acuff-Rose Music, Inc., (1994) has even more to say about parody (and yes, this was one of the 2LiveCrew copyright cases centering around their song, Oh Pretty Woman.) The court’s decision “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very “creativity what that law is designed to foster” and that a parody of an original work is defined by offering “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” (And that wasn’t the only issue this case defined. We’ll getting back to it later, in note 3.)

So when this kind of transformative use not allowed? In Salinger vs. Frederik Colting, 09-2878-cv in the United States Court of Appeals for the Second Circuit (2009), Salinger’s right to copyright of his character of Holden Caulfield was upheld, but again, the character itself (and Catcher in the Rye were not what was being parodied.) CBS won a very famous suit in the 1980’s involving the character in Greatest American Hero. Any idiot could see that the character was based on Superman, but the judge ruled that it wasn’t enough for viewers to just be reminded of another character, and that’s it.)

Here’s another way you can get in trouble with non-humorous transformative use. Warner Bros. Entertainment, Inc. and J. K. Rowling vs. RDR Books (575 F.Supp.2d 513) is a perfect case. Steve van der Ark was not allowed to legally publish a print copy of the Harry Potter Lexicon, an online encyclopedia of the Harry Potter series that collected and reorganized various facts about people, places, things, and concepts in the novels into a searchable form. The court ruled that van der Ark’s work was not legally protected because it “compiles and repackages Ms. Rowling’s fictional facts derived wholesale from the Harry Potter works without adding any new creativity, commentary, insight, or criticism. Then there’s the case of the Tanya Grotter series. These books were ruled (in the Netherlands) to not constitute fair use of the original material. This was because it used characters, events, and settings obviously and specifically derived from those that were copyrighted by J.K. Rowling, yet it clearly did not parody the original elements. If it had, it would have been protected. (In Russia, however, copyright law does not prohibit its publication, and the Tanya Grotter series has sold over a million copies overall.)

But, OOPS! You’re trying to make money by publishing your book. That’s the idea, anyway. What happens then?
This is a very important point, because whether or not a work is commercial has been a very important point in deciding whether or not it can be fair use. But the 1994 case Campbell vs. Acuff-Rose dealt a devastating blow to the idea that it can’t. The profits from 2LiveCrew’s song Oh Pretty Woman certainly did not go to charity. But it fit all the other definitions of parody, so the fact that the motive was profit really had nothing to do with anything. Campbell established that no legal principle prevents a commercial parody from qualifying as fair use. The mere fact that a profit may be made was not found to be meaningful to the question of whether or not the work is considered a legally protected parody.

Think about it. If the profit argument really was valid, then there could never have been a Mad Magazine, a Saturday Night Live, a Daily Show, a Colbert Report, or a 2nd City. No comedian could ever tell jokes about copyrighted material unless they did it for free. This argument really annoys me, as y’all might be able to tell. Basically, transformative works which really do fit the legal definition advertise and promote the original work anyway, so everyone’s making more money.

3 thoughts on “Fun Facts About Copyright Law”

  1. Don’t forget to learn from EL James’ mistakes – the copyright in the Fifty Shades series all clearly state:

    ‘The author published an earlier serialised version of this story online with different characters as Master of the Universe under the pseudonym Snowqueen’s Icedragon’

    The lesson? Pick a better screen name.

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