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70 U. Pitt. L. Rev. 387 (2008-2009)
The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright

handle is hein.journals/upitt70 and id is 393 raw text is: THE HARRY POTTER LEXICON AND THE WORLD OF FANDOM: FAN FICTION, OUTSIDER WORKS, AND COPYRIGHT Aaron Schwabach INTRODUCTION Unlicensed fan fiction presents a dilemma for content owners: while fan fiction may infringe on the content owners' copyright and trademark rights, the fans who create and share it are the biggest and, for some genre works, very nearly the only, market for the owners' works. Active enforcement of intellectual property rights may alienate consumers-fans-and hann future revenues. On the other horn of the dilemma, non-enforcement of those rights may result in their loss. Fan fiction provides fans with an opportunity to enjoy, discuss, and, most of all, inhabit the canon texts in ways that would be impossible without it. Despite its essential role, though, fan fiction's legal status remains unclear. Many fans, including academic fans, believe that fan fiction is another type of information that just wants to be free: all or nearly all non-commercial fan fiction should be protected as fair use. In contrast to previous generations, today we live in a world of symbols and texts that are all, or nearly all, owned; fan fiction is a way of combating the inevitable alienation this produces.' Balanced against this are the interests of copyright owners. This article explores the world of fan fiction, examining three types of conflict between fans and content owners. First, the owner may object to fan fiction that alters the nature of the original work-the literary equivalent of scribbling mustaches on Grant Wood's American Gothic (which would earn the scribbler a quick trip to a Chicago jail cell),2 or perhaps of scribbling mustaches on a postcard * Professor of Law, Thomas Jefferson School of Law; J.D., University of California, Berkeley (Boalt Hall); aarons@tjsl.edu. I would like to thank Professors Rebecca Tushnet and Julie Cromer-Young for invaluable feedback and suggestions, as well as my research assistant Andrea Maestas and the entire community of fandom. 1. See generally, e.g., Leanne Stendell, Comment, Fanfic and Fan Fact: How Current Copyright Law Ignores the Reality of Copyright Owner and Consumer Interests in Fan Fiction, 58 SMU L. REv. 1551, 1581 (2005) (The destruction of this 'modem folk culture' should be contemplated with hesitancy .. ); Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L. REv. 651 (1997). 2. In the U.S. such rights in original works of art are protected by the Visual Artists' Rights Act,

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