Writing fan fiction and copyright infringement under New Zealand law: A case study perspective

Abstract

It may seem straightforward to show that writing fan fiction constitutes copyright infringement, because fan fiction authors copy the fictional characters and worlds of copyright owners to write fictional stories, and it is an infringement of copyright to make an unauthorized copy of a substantial part of a copyright work. The paper seeks to rebut that proposition in two ways using a case study. The case study assesses whether a particular Harry Potter fan fiction infringes JK Rowling’s copyright in one of her Harry Potter books. Firstly, the copyright infringement analysis can be complicated when the fan fiction is derivative of several copyright works, because copyright infringement only looks at whether one work is infringed. Secondly, even if that fan fiction is infringing, there is a good case to argue that the author has done fair dealing for the purposes of critism and review, and so is a permitted act.