[Elfwreck]

Originally Posted by HarryT

That is a completely different scenario. If you perform a Shakespeare play, you are doing just that - performing Shakespeare. You're not writing your own play using Shakespeare's characters (not that Shakespeare "made up" any of the stories for his plays, of course - they are all based on existing sources).

Copyright law includes control over public performances of the work. If the key issue is "ethics" of use of someone else's work, not "legalities," esp. with personal creativity being an important aspect, then it's relevant to ask why it's reasonable to perform Shakespeare's plays, but not to enact a section of Harry Potter without the author's permission.

Certainly, I agree with you. But not that the right to create a lexicon or encylopedia only exists if you add a non-trivial amount of creative input yourself, as Mr. Ark recently found out.

You don't have to add anything, but you do at least have to re-arrange what's given. Mr. Ark was found to infringe, not on the 7 Harry Potter books, but on the two "reference books" Rowling had published--Quidditch Through The Ages and Fantastic Beasts and Where to Find Them. The Lexicon cribbed too much directly from those.

I honestly don't see how fan fiction can conceivably be considered "fair use" to be honest with you. It clearly (IMHO) falls into the category of a "derivative work" which is a breach of copyright unless you have the permission of the copyright holder. That's what Mr. Ark was successfully sued for doing - creating a derivative work.

I have looked at "transformativeworks.org" and it's full of "we believe"'s and other such expressions, but they appear unable to quote one single example where a court has backed their "beliefs". Perhaps you could direct me to such a court ruling if I'm mistaken?

The "we believes" are supported by several lawyers who specialize in copyright law. Until a case involving fanfic goes to court, that's all anyone can say.

There have been no court rulings pertaining to noncommercial fanworks and copyright; there are a number of possible reasons for this. (Starting with, "there's no money in it;" no matter what kind of ruling a publisher could get by squashing a fanfic, they couldn't actually get their court costs back; they'd just wind up with a bankrupt fanfic author.)

The most relevant ruling is:
Suntrust v. Houghton Mifflin, in which the book, "The Wind Done Gone" had an injunction on sales lifted on the grounds that the copyright complaint was not likely to succeed; a settlement was reached rather than a final ruling on copyright law.

From the ruling:
Included in the definition of fair use are "purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research." § 107. The exceptions carved out for these purposes are at the heart of fair use's protection of the First Amendment, as they allow later authors to use a previous author's copyright to introduce new ideas or concepts to the public.
...
For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.
...
While told from a different perspective, more critically, the story is transformed into a very different tale, albeit much more abbreviated.

And from the concurring opinion by Judge Marcus:
the issue of transformation cuts decisively in Houghton Mifflin's favor, in my view. Even a cursory comparison of the two texts reveals that The Wind Done Gone profoundly alters what it borrows--indeed, at times beyond recognition.
...
"market harm" cannot be established simply by a showing that the original's sales have suffered or may do so. Rather, the market harm factor requires proof that The Wind Done Gone has usurped demand for Gone With the Wind
...
The law grants copyright holders a powerful monopoly in their expressive works. It should not also afford them windfall damages for the publication of the sorts of works that they themselves would never publish, or worse, grant them a power of indirect censorship.

Sorry, but I have very mixed feelings about fan fiction. I accept that it's written by genuine fans and that some publishers and authors probably welcome it as free publicity for them, and for keeping their fans happy, but I honestly do believe that its legal status is very, very dubious.

Inasmuch as fanfiction is *commentary* on the original, it should be legally treated no different from a review, which also might borrow character names, descriptions, and plot elements. In a review, they are described; in a story, they are incorporated--in both cases, the reader is left with a new understanding of the original.

In cases where fanfiction is parody, the fair use status is obvious. Harry Potter getting it on with Draco? Obviously a parody, right? (As noted above, "parody" doesn't have to mean "funny.")

(I'll sort through my archives and look for other rulings; Campbell v. Acuff-Rose is relevant, and the recent YouTube Prince music drama, establishing fair use as a right, not just an affirmative defense.)

IANAL. I just like reading up on copyright issues.