Is Harry Potter Fanfiction Legal?

When I was little I got into the Harry Potter fandom (I wrote lots of Dramione fanfiction in elementary school and was writing lots more in middle school in notebooks that I would carry with me). But when I was in 7th grade, a writer friend of mine told me that she had received a cease-and-desist letter for her fanfiction once. I had no idea that most fanfiction was technically infringement. But it hardly ever gets enforced. That changes depending on how a court decides that a particular piece of writing uses the copyrighted material "transformatively" (i.e. as parody or criticism), as opposed to simply recreating the original work with names changed. A story that explores Snape's motives would probably be considered "transformatively" uses the material, while a straightforward retelling of the Goblet of Fire with Harry, Ron, and Hermione as the three golden children and Draco as the main villain would not.

Site policies matter. FF.net often clears out mature content, whereas AO3 admirably champions fair use. My advice would be to give credit where it’s due, refrain from monetizing, and abide by takedown requests. Sharing the magic of fandom is so much better than stealing it.

I wrote this post with my high school friends on our Harry Potter RP blog back in the day when someone mentioned legal issues and we were all like, "No way, that can't happen." I did some reading and apparently, copyright laws are sort of a bummer, but fanfiction is generally okay. There are some special circumstances where it's not, mainly where there's commercial harm, but that's not usually a problem for free, clearly labeled fanfiction. Some authors are even fans of fanfiction and defend the right of fans to write and share their own stories. There's even an author, Naomi Novik, who co-founded the Archive of Our Own fanfiction archive to provide a safe, legal space for fan creators to host their work. As for J.K. Rowling... her lawyers are sort of the opposite. They recently tried to shut down a stage play written by fans of Harry Potter, but despite her best efforts, there are still millions of words of fanfiction out there. So, write for love, not for money, and try not to tag J.K. Rowling on Twitter.

Fanfiction legality is a tangled, messy issue that exists in much the same way as the Room of Requirement: unpredictable and often changing. While Harry Potter author J.K. Rowling owns the Harry Potter franchise, much of the fanfiction is written under the auspices of fair use, citing the ‘non-profit’ element. Many authors are keen to avoid lawsuits with other creatives – with the exception of a few rabid litigants such as Anne Rice.

It’s likely that most corporations wouldn’t be able to handle trying to sue every bit of fanfiction ever written. If you’re writing a story based off of another’s work, just be sure to give them proper credit where they’re due, and try not to sell it. There’s no fandom police that are going to come after you for your Hogwarts-based self-insert unless you decide to turn it into a Broadway musical.

Fiction based on Harry Potter has been something of a gray area when it comes to legality. But because most authors don’t actually care (as long as no one is making money off of it) and Harry Potter has a large and dedicated fanbase of writers, many, many stories of Harry Potter fiction have been written by fans over the years. I’m one of them, actually. And it seems to me that as long as no one is making money off of the stories, there’s really no need for authors to worry about them. Many popular sites for fiction written by fans, such as Archive of Our Own, even have legal teams ready to defend the work under fair use if need be.

I think Rowling has been changing her perspective on fanfiction over the years. At first she was okay with it, even put up a few stories on her own site. There was even this amazing site called Fiction Alley (which is now defunct, alas) where people posted up lots of their own stories. But these days she seems to be mostly outraged by explicit stories. My take is that as long as people are writing fanfiction out of passion rather than profit, it's all cool. That means that most of the really great work — like that wonderful queer remixed version of Draco and Harry or that amazing new POC-based AU — is probably all legal. Just don't try to sell your Drarry smut on Amazon.