Harry Potter and the Laboratory Creativity: Fandom Infringement of Copyrights and a Proposed Exception for Experimental Use

Rachael Stiegel, University of Houston Law Center

Abstract

This article is a bit of an experiment in itself, mixing two seemingly unrelated areas of intellectual property in an effort to see if a theory used in one context applies in another. The experiment begins with Part II, which provides an introduction to fandom culture with specific emphasis on the Harry Potter fandom. Part III hypothesizes about whether fandom activity is copyright infringement. Part IV presents non-scientific data about the degree to which copyright owners enforce their rights against fans. Part V gives a brief overview of the experimental use exception in patent law, highlighting the importance of viewing copyright issues within the framework of the entire American intellectual property system. Part VI draws a parallel between technological experimental use and creative experimental use, concluding that fandom is a type of creative experimentation. Based on this conclusion, Part VII proposes a statutory exception for fandom experimental use. Finally, Part VIII speculates about the practical effects of implementing such an exception, taking into account issues such as the redundancy of this type of exception in light of fair use, potential abuses, concerns about moral rights, and role of trademarks in the context of modern entertainment.