Novelist and First Amendment attorney Julie Hilden argues that authors and rights holders should be very concerned about the Organization for Transformative Work’s proposal to extend copyright protection to fan fiction. She writes, in part:
Does fan fiction deserve to share the same
respect as original work, for copyright purposes? The OTW’s proposal
suggests so. Recognizing fan fiction as "legal and transformative"
would put it on a par at least with "fair uses" of original works, and
perhaps also with the works themselves. And the recognition of fan
fiction as "legitimate creative activity" seems to put it on, or close
to, the level of original works. But is that the fair or right level
for fan fiction to occupy?
Hilden doesn’t think so. She believes if copyright protection is extended to "fannish works," the original authors or rights holders will suffer a very real, detrimental impact with far-reaching implications.
the OTW is not asking for a fixed, low
royalty rate for fan fiction; rather, it is trying to destroy original
authors’ ability to both silence fan fiction and require
royalties for it. Thus, the OTW has bypassed the more moderate solution
of a low, fixed, statutorily-mandated royalty rate for fan fiction that
effectively sets that rate at zero.
Does that matter?
Absolutely. Even those who strongly value fan fiction may worry about
maintaining authors’ incentives to create the original works that feed
The OTW’s proposal is a complete abrogation of
control with no compensation for taking away rights, or any
substitution of rights (for instance, switching a right to refuse to
license fan fiction with a right to charge a low, statutorily-mandated
royalty.) In this sense, it is the most extreme proposal possible.
And one not likely to succeed, if the OTW is foolish enough to pursue it. It would poke the studios, publishers, and authors right in the blind eye that they’ve been regarding fanfiction with for years. That should have fanficcers very worried. All it will take is one court challenge by the O.T.W for that blind eye to open and view the entirety of fan fiction with a very hostile gaze.
The studios, publishers, and authors aren’t about to sit back and allow such an outrageous rights grab…nor, Bilden argues, should they. She believes that copyright law is rightfully tipped in favor of original creators:
Our Constitution’s Copyright Clause has always
seen original authors as far more important than derivative users.
However, especially in light of the Internet’s influence, many have
taken issue with that hierachy – even to the extreme of ignoring
original authors’ interests.
[…]not only does the Copyright Clause in fact
privilege these creators over derivative users, but that hierachy may
be the right one, from the standpoint of policy: Original work may
actually be more worthy, in that it brings something genuinely fresh
and innovative into the world, representing a creative leap and not
just an incremental extension.
But, incredibly, the O.T.W. believes that Harry Potter slash fic is on equal footing with J.K. Rowling’s books and deserves the same protections as her work…more over, that it deserves to be protected specifically from her. And they don’t understand why authors might have a problem with this…