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This letter, posted on a website that monitors the “legal climate” on the internet, contains a cease-and-desist order to a Texas fan fiction website manager responsible for displaying adult fan fiction based on the Harry Potter series on her website. The law firm that issued the order, Theodore Goddard, represents Christopher Little Literary Agency and J.K. Rowling, the author of the Harry Potter novels books. The attorney who writes the letter explains that the sexually explicit fan fiction, which posted on the site in question has concerned (i.e., distressed) clients Rowling and Warner Brothers (the studio behind the Harry Potter films), who wish to preserve the integrity of the Harry Potter franchise. While the firm acknowledges that “innocent” fan fiction does not upset Rowling and Warner Brothers, the sexual material on the website in question threatens the integrity of the Harry Potter brand and could quite easily be accessed by children, especially given the Harry Potter's popularity among youth. The attorney requests that the material in question be removed from the internet and not be disseminated in any other way.

This letter significantly complicates the argument that fan based creative activities do not harm underlying work. Here, works of fan fiction with erotic themes are seen as a threat to the integrity of the work that they are based on. Illicit fan fiction's potential to tarnish the reputation of original work could harm the market of underlying work and could thus disqualify fan fiction from fair use protection. This consideration must therefore be reflected in arguments that attempt to defend fan fiction, particularly by those who wish to legally commercialize it. If anything, the existence of illicit, market-harming fan fiction—with no aims of legitimate parody—proves that a generalized, sweeping concession allowing fan fiction is inappropriate. Rather, fan fiction writers must individually decide whether to consider their work fair use; in the meantime, cease and desist letters such as these will continue to make up many writers' minds for them.

Interesting analysis of how the courts applied fair use to the Harry Potter Lexicon case.   This was not just a case of the deep pockets winning.   The details of the ruling show it as a win for fair use.  

tagged arl copyright fair_use harry_potter by bethpc ...on 22-OCT-08
    In this essay Philip Nel argues that when analyzing the Harry Potter series one must separate the literary text from the “marketing juggernaut” that surrounds it.  The first third of the essay, then, is an account of why one need not conflate the Harry Potter books and J.K. Rowling with the marketing campaign surrounding it, and the final two-thirds of the essay focus on the literary merits of these texts.  So, in Nel’s attempt to separate the Potter books from the extraordinary marketing campaign surrounding it, he employs two basic arguments.  Firstly, Nel claims that the books have generated so much marketing attention simply because of the way American copyright and trademark law works.  Secondly, Nel asserts that Rowling is not really a part of the capitalist marketing regime surrounding her books because she donates a lot of money to charity.  (Seriously, that is his argument.)  Then the essay shifts to the literary merits of the Potter books, which are, bafflingly, almost as naïve and uninteresting as the arguments already mentioned.  He begins this roughly twenty-page defense of the literary merits of Rowling’s books with a paragraph briefly describing the criticism that has been raised against the aesthetic merits of the works (this is by far the most interesting paragraph in the entire essay).  Nel then says that these critics have simply not read “slowly” enough, and proceeds to tell us what we will find were we to read more slowly.  I will not go through all the reasons he cites for why the Potter books have literary merit, but I will mention a few.  One is that Rowling claims to have read Jane Austen’s Emma “at least 20 times,” and as a result shares Austin’s satiric charm and “narrative misdirection.”  Also, Nel claims that Rowling’s series are “anti-rascist novels,” and he defends this claim by comparing them to boarding school novels written in that late eighteenth-century through the mid nineteenth-century.  He points out that these novels were blatantly racist, whereas the Potter books once criticized the notion of “pure-bloods,” thus making them anti-racist novels.  (Again, these are really the arguments Nel employs.)  Another reason the Rowling books possess literary merit is the names that are used.  As Nel points out, Rowling “uses names to connote character traits, as do Austen, Dickens, and Tolkein.”  She then points to a few significant names as evidence of this, and concludes that this is further proof of the literary merit of these works.  Nel provides a few more arguments in defense of the literary merit of the Potter series that I will not go into here (one is based on the fact that Rowling uses a lot of prime numbers, which are “mystical”), but I think the overall thrust of the essay has been captured.  In order to do justice to the Potter books it is imperative that we separate them completely from the marketing surrounding them.