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September 19, 2006


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Greg Lastowka

Randy> So Rowling licenses for movies, but she isn’t building—yet—the Harry Potter Extended Universe.

Well, there's no extended universe in authorized fiction, yes, but there's an extended universe in games, clothing, plates, food, watches -- if you look on Amazon, there's something Harry Potter(TM) in most every category. (They even have a "Harry Potter Store.")

There's also an increasing law review "extended universe" that I presume is not licensed. E.g. Paul R. Joseph & Lynn E. Wolf, The Law in Harry Potter: A System Not Even a Muggle Could Love, 34 U. TOL. L. REV. 193 (2003).

I'm actually curious as to your thoughts on how the Harry Potter law review literature relates or doesn't relate to your discussion of fan fiction. Some of the writers of these Harry Potter law review articles seem to be "fans" of Harry Potter generally. They're producing creative scholarly commentary that presents and builds out from the Harry Potter universe. So (putting aside copyright doctrine for a second) what's the reason for dividing this kind of creativity based on a fictional universe from more typical fan fiction that also builds upon a fictional universe? For a certain subset of readers, you might even claim that fan scholarship and commentary (like fan blogs, Jenkins' book, or even your discussion of Jenkins' dicussion of Harry Potter) serve as potential substitutes -- time spent reading fan commentary could be spent reading the licensed content.

Obviously, I wouldn't suggest that we should get a license to talk about Harry Potter. I guess my point is that some of the similarities between fan fiction and fan commentary might point away from putting fan "fiction" in an entirely separate legal category. In some ways, it is just a subset of other forms of creative "fan" productivity that we think should be allowed.

Rebecca Tushnet

It's been a while, so I'm not sure where you think we disagree on Campbell. I would say that the issue with respect to Star Wars licensing is pretty much whether licensing ends the fair use inquiry -- is factor four the only factor? If it's not, I still think essentially all fan fiction is fair use, regardless of whether it's Star Wars or Harry Potter.

DMCA: As long as archive sites contain some noninfringing material, in this case fair uses or stories that are so different from the original that they aren't substantially similar, I don't think that running advertising across the top of every page constitutes benefit directly tied to the infringement. Others, however, may disagree; I think logic and caselaw favor my conclusion but there's plenty of room for debate.

Side note: you have by no means exhausted potential combinations. You've forgotten Darth Vader, not to mention the new wave of Qui-Gon/Obi-Won.

Greg Lastowka

Speaking of Star Wars mash-ups, this is neither here nor there, but the new (licensed) Lego Star Wars PS2 game features a picture on the package of a Darth Vader head snapped onto a Princess Leia body.



A better link that demonstrates what is going on:

Fun because it allows for a tiny bit of the same irreverent, user-controlled mix-and-match that can make fan fiction interesting -- and that is not really possible in conventional narratives.

Heidi Tandy

With regard to advertising, like Google ads on a website that hosts fanfic, as well as discussion by fans, do you think that there's a difference between placing ads on the pages with fanfiction, versus putting ads on pages that do not contain fanfiction?

Also, one unique thing for those of us who are Harry Potter fanfic site operators is that the WBShop has, since 2002, courted us as affiliates of their store. When we started FictionAlley.org, we did not run any advertising at all, but once WBShop got in touch with us and said that they wanted us to become an affiliate of their online store, which is really no different from actually advertising the WBShop and its products, the playing field changed slightly and incorporated at least some acceptance by The Powers That Be of advertising in connection with fanfic. Of course, with things like ads for the WBShop, or even Amazon.com's Harry Potter products, they actually make money on each of the purchases by our users, which might be why they approve of the benefit they get from it.


Another interesting development -- MTV's "Virtual Laguna Beach." Betsy Book has posted some thoughts about it that I think relate to this discussion:



Lucas is thinking of making a star wars Tv series. Amnipata not sure how the die hard are going to think about that.


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