UA Little Rock Law Professor Publishes Article Exploring Fanfiction Law

In addition to being a law professor at the UA Little Rock William H. Bowen School of Law, Aaron Schwabach is a passionate Harry Potter fan who is so intrigued by the Wizarding World that he once wrote an academic paper investigating the law in Harry Potter's fictional world.

"That article got a much bigger response than any of my other work," Schwabach said. "It got me invited to a lot of Harry Potter conventions, where everyone is writing fanfiction and wonders what its legal status is."

Most people would recognize fanfiction as a fictional story written by a fan that is based on another work of fiction, but Schwabach said fanfiction can include "pretty much anything that a fan makes in response to a work of fiction," including stories, videos, artwork, music, and memes.

Ever since attending a wide array of Harry Potter conventions, Schwabach has become well versed in laws regarding fanfiction and has so far written a book, four articles, two book chapters, and his dissertation on the subject.

His latest article, "Fan Works and the Elusive Border between Derivative and Transformative Uses: A Fanfic Law Retrospective and Optimistic Look Forward," is available online and will be published in the Loyola of Los Angeles Law Review this year.

Law regarding fanfiction is an evolving topic, Schwabach said. Without clear laws and rules, fanfiction communities tend to self-regulate.

"In any fanfiction community, there are all these widely used disclaimers," Schwabach said. "The fan creators will say that they don't own the characters, and the work wasn't made for commercial purposes. Another common one we see, often from authors of the original works, is a statement that people don't have the right to make money from these works. Both the authors of the original works and the fan authors act as if there is a difference between commercial and non-commercial purposes in copyright restrictions. It tells us a lot about where copyright law is going in the future. We are watching the law develop in real time."

These issues are grounded in copyright law, with the main issue being whether fans have the right to use characters from copyrighted works in their own work. Some fan work relies on fair use as a defense against a claim of copyright infringement. Fair use permits a party to use copyrighted work without the copyright owner's permission for limited purposes, such as criticism, news reporting, comment, research, teaching, and scholarship. One of the factors considered in deciding fair use is the purpose and character of the use, with courts heavily considering whether the use was for a commercial or non-commercial purpose. Courts also consider whether the work is derivative or transformative, since a transformative work, such as a parody, is not copyright infringement.

"Many, even most, fan uses will not be infringing," Schwabach said. "While derivative uses can only be made with the permission of the copyright holder, works that are transformative, including those protected by the rights of parody and fair use, are not derivative."

Schwabach can already see how the distinction between commercial and non-commercial purposes may be critical in creative lawsuits involving artificial intelligence.

"We already know that AI can't receive a copyright," Schwabach said. "If someone publishes a book written by AI, who gets paid for that story? You also have to consider how AI learns to do stuff, by reading the works of other authors or looking at the artwork of other artists. The authors haven't given consent to have their work used for this purpose, and right now there are a lot of people gearing up to sue companies that are using their work to train AI programs without permission. That is why the distinction of commercial versus noncommercial use will come in handy. It predicts this sort of thing will be taken into consideration when you consider whether artists' work can be used to train AI without their consent and whether artists are entitled to some compensation."

Schwabach said there is a question of whether big corporations are chilling the expression of fanfiction authors, whose work may be legal but who do not have the resources to fight a legal battle with a corporation with nearly unlimited resources.

"Fanfiction authors do not have the resources to go toe-to-toe with corporations like Disney," Schwabach said. "If a fanfic author gets a cease-and-desist letter, they will comply. Because of this, a lot of fanfiction gets taken down even though it is not infringing on copyright. It gets taken down because the fanfiction author is not able to take on a giant corporation that is threatening them."

Schwabach believes that a legal system that allows non-commercial fan work is beneficial to both the authors and the fans. Most fan works have negligible market value, but they can have a positive effect for the original author by building the fandom and increasing the popularity of the work. Meanwhile, fans enjoy the creation of their works and sharing them with their peers.

"The wonderful thing about fan works is it makes the work a collaboration between the author and the fans," Schwabach said. "It's something we are actively taking part in rather than just passively reading. I think it has a lot of benefits for all involved. I could read Harry Potter, get a few hours of entertainment, and then be done and walk away. Or I can go read fan sites, where people give their opinions and write their own stories as part of an ongoing dialogue. The fans get much more enjoyment from the works, and the author gets much more attention."

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