Author John Scalzi has irked fanficcers by <gasp> saying that he believes fanfiction is illegal which, of course, it clearly is.
it’s clear that some portion of fanficcers actually seems to believe
that writing fanfic isn’t actually copyright infringement, and that
therefore it "exists in a gray area" or is actually not illegal
via some interpretation of fair use. Some of this belief stems from the
contention that there has not been (to the common knowledge) a
copyright suit specifically dealing with fanfic, probably because a
"Cease & Desist" letter is usually enough to cause the fanficcer to
take down his/her fanfic so no court case is necessary. The thinking
here seems to be that if a suit does not specifically address fanfic, then the legal status of fanfic is in fact indeterminate.
I can’t help but think this is a bit of magical thinking, based on
the idea that fanfic is in itself a legally special class of writing
(possibly under the "we’re doing this for fun" idea), which as far as I
can see it’s not. It’s bound to the same injunctions and restrictions
as any other piece of creative writing. Certainly US copyright law
carves out protections for fair use, parody and criticism, and equally
certainly some fanfic qualifies under a realistic reading of
these protections. But I hazard to guess the vast majority of fanfic
could not be shoehorned into these protections even under the most
liberal of terms.
He backs up his assertion with a lengthy post that quotes an intellectual property attorney and the Chilling Effects Clearing House (a joint project of the Harvard, Stanford, Berkeley, University of San
Francisco, University of Maine, George Washington Schools of Law) on the subject. What I found especially interesting was a letter sent by JK Rowling’s attorneys to some fanficcers who were writing porno Harry Potter stories.
As you are aware, Ms. Rowling is the author of the Harry Potter books. Ms. Rowling therefore owns the copyright in the Harry Potter books. The sexually explicit content of the fan fiction available at www.restrictedsection.org, which is plainly based on characters and other elements of the fictional world
created by Ms. Rowling in the Harry Potter books, is a matter of
serious concern to our client. In addition, our client Warner Bros,
which owns the film and merchandising rights to
the children’s series of Harry Potter books, is concerned to protect
the integrity of its Harry Potter properties. For the avoidance of
doubt, our clients make no complaint about innocent fan fiction written by genuine Harry Potter fans.
She’s okay with fanfic but is ready to go after people who write sexually explicit material using her characters. That should serve as a warning to anyone who thinks that writing about Harry and Ron exploring the magical delights of anal sex is "fair use."