Warner Bros., Fan Creators, and Infringement Claims: The Legal Side
A few months ago, we shared with you that we at MuggleNet had been receiving reports from fan creators that they have been met with allegations of copyright infringement for their creations inspired by the Wizarding World franchise.
While the majority of these concerns brought by Warner Bros. were in relation to items posted for sale, this was not the case for all creators, and some of the imagery involved has included generic depictions of owls or potion bottles. As a result, we and the fandom at large have had to ask some tough questions about what these issues mean for fandom, fan creativity, and more. In the comments on our posts and that of our friends at La Gazette du Sorcier, we found even more examples of fans who have heard of or faced legal challenges related to fandom.
In this piece, the second in the series on this topic, we dive into the legal side of things to explain why what is going on should be a concern for anyone involved in any sort of fandom. Even if you aren’t a fan creator yourself, you’ve probably enjoyed something made by fans (including MuggleNet), so this isn’t limited to those buying and selling items online.
What Does the Law Say?
Laws related to intellectual property differ by jurisdiction, and that can make it difficult for creators to know what is legally allowed. Cornell Law School’s Legal Information Institute explains what is considered “intellectual property” under the laws of the United States:
In general terms, intellectual property is any product of the human intellect that the law protects from unauthorized use by others. The ownership of intellectual property inherently creates a limited monopoly in the protected property. Intellectual property is traditionally comprised [sic] of four categories: patent, copyright, trademark, and trade secrets.
The Digital Millennium Copyright Act (DMCA) is often what comes into play in these cases. Some service providers, such as Instagram, generally follow “notice-takedown-putback” procedures related to alleged copyright infringement. In short, this means that creators can request that the content that was removed be restored after enough time has passed for a copyright holder to have filed a lawsuit.
That doesn’t mean, however, that fans cannot create works based on copyrighted works such as the Harry Potter books and films. Under US law, there is also the doctrine of fair use, as described by the US Copyright Office:
Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.
There are four factors that must be considered in questions of fair use:
- Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
- Nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- Effect of the use upon the potential market for or value of the copyrighted work
Basically, what this means is that no single factor can determine if something is or isn’t a violation of copyright law in the United States. Contrary to popular belief, simply copying and pasting a disclaimer – such as to a YouTube video description – probably isn’t good enough.
What Does This Mean for Fandom?
Luckily, works that modify a copyrighted work in some way that adds new expression or meaning to that copyrighted work can be considered “transformative works.” These might include works of fan fiction and parodies such as A Very Potter Musical, for example. In an article published by Gizmodo last year, author Katharine Trendacosta commented on the nature of transformative fandom as the 2010s came to an end.
Transformative fandom has been looked down on, derided often for the people who participate in it. Some refer to it using words like ‘girly’ or ‘gay’ or just ‘weird,’ and between the ridicule and the legal threats from studios and authors, transformative fandom has been dismissed and endangered for a very long time.
Trendacosta cited the work of the Organization for Transformative Works (OTW) and the Electronic Frontier Foundation (EFF) as helping strengthen protections for fan creations as transformative works.
Meanwhile, in an article published in Harvard Business Review in July 2019, Georgetown Law professor Madhavi Sunder discussed how corporations such as Warner Bros. have moved to create fan experiences to rival those created by the fans themselves.
As the experience economy has grown, with more consumers (especially millennials) preferring doing over having, many owners of cultural property have reconsidered their laissez-faire attitude, and we are now seeing more efforts to commodify some long-tolerated fan activity. Companies are increasingly issuing cease-and-desist demands to third parties using their creative capital, and they’re offering their own official alternatives.
Sunder noted that at least one federal court has taken the view “that intellectual property owners have no right to ‘hegemony’ over fans,” and Sunder further expressed that rights-holders should “consider a measured approach” to the matter:
Owners of beloved cultural properties ought to consider a measured approach to asserting intellectual property rights on fan experiences. Really, companies ought to be pinching themselves that their fans want to bring their fictional worlds to life. Fan engagement extends both the lifespan and the value of the work. Fans make the work relevant to themselves and to others. Their love and devotion are what creators live for.
Without fans, in other words, it is unlikely that copyrighted works or franchises will last, making it all the more important that fan-created works are protected.
What Can We Do?
For those fan creators who have been met with DMCA takedown notices for alleged copyright infringement, the first step is to determine if you believe in good faith that the material did not infringe upon the copyright in question. The Copyright Alliance – of which WarnerMedia, the parent company of Warner Bros., is a member organization – has more information about the counter-notice process and what is needed in a counter-notice. (Instagram’s policies on how it deals with DMCA counter-notices are available on its website.)
For those outside the United States, the OTW notes that the ways in which other countries treat “fair use” or similar legal concepts can be “complicated”:
Most countries have exceptions to copyright rights for various purposes. In Europe, the more common term is ‘fair dealing.’ Countries differ in their treatment of the scope of copyright and exceptions.
For example, in Canada, parody is not a specifically recognized defense to copyright infringement, although it can be fair dealing in appropriate circumstances. Australia has limited protections regarding the freedom of communications. The Gowers Review of Intellectual Property in the UK is expected to bring about changes in UK laws regarding parody and transformative use.
For more on transformative works and digital rights, visit the Organization for Transformative Works and the Electronic Frontier Foundation.
As a necessary disclaimer, the author of this piece is not a lawyer, nor does anything given in this piece constitute legal advice. If you are facing legal action, please contact a lawyer.
If you have been affected by copyright infringement claims related to the Wizarding World fandom or have other experience with them (as a lawyer or legal scholar, for example), we would love to hear from you!