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Date Posted: 21:40:43 06/19/02 Wed
Author: angela
Subject: ::jumps in with an Intentional Tort!!::
In reply to: Melle 's message, "Re: jumps in with a 'splat'" on 13:17:00 06/19/02 Wed

My turn to address a few points!

>
>Technically, RPF is less illegal than FPF, because
>we're not breaking copyright, and we're not committing
>libel or slander, either. We're not claiming it's
>true, and no reasonably person would believe it's true.
>

Technically, an author of RPF can be sued for posting a story. There is an intentional tort referred to as Publication of Facts Placing Plaintiff in a False Light, and it's a sort of branch of Invasion of Privacy. For a Plaintiff to win such an action, they must prove that: 1) Defendant's conduct is objecitonable to a reasonable person standard; 2) A false impression of the Plaintiff was presented; 3) Statements were made knowing that it was false, or with a reckless disregard as to its truth or falsity; and, 4) Wide disemination (publication) was made of the false impression.

If that doesn't work, there is always Intentional Infliction of Emotional Distress. Plus, both actions can give you punitive damages!


>>And a fiction that enters the life of a real person in
>>a significant way, and purports them doing things that
>>they didn’t do, cannot remain under the blanket of
>>fiction.
>
>Bullshit. It's not true, it's explicitely labeled as
>not being true, therefore, it's fiction. It *is* that
>simple.

It doesn't matter if it is knowingly false. See above.

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Replies:

[> [> [> [> Re: ::jumps in with an Intentional Tort!!:: -- Kate, 00:53:50 06/20/02 Thu

>Technically, an author of RPF can be sued for posting
>a story. There is an intentional tort referred to as
>Publication of Facts Placing Plaintiff in a False
>Light, and it's a sort of branch of Invasion of
>Privacy. For a Plaintiff to win such an action, they
>must prove that: 1) Defendant's conduct is
>objecitonable to a reasonable person standard; 2) A
>false impression of the Plaintiff was presented; 3)
>Statements were made knowing that it was false, or
>with a reckless disregard as to its truth or falsity;
>and, 4) Wide disemination (publication) was made of
>the false impression.

Does that mean I can sue the people who made the movie "Enigma" because they chose to omit Alan Turning from the movie? And the people who made "U-571" because they made it seem as if the Americans found the Enigma device? And Jerry Bruckheimer for "Pearl Harbor" because he included fictional characters at a historical event?

Are you getting what I'm trying to say? These are movies that are distributed to millions, sold all over the world, and yet I don't see people suing them for portraying them in a false light.

And why not? Because people see that they are movies. There's a little disclaimer at the end of them saying that this particular piece is fiction and, therefore, it's okay to publish it.

They have disclaimers. RPF writers have disclaimers. Same thing. Same standing.

And, actually, the legality of RPF isn't the topic being debated. It's whether or not you can post a recommendation of a "Buffy"/RPF story to a list that says on its main page "Any kind of story/pairing/universe is fine (even smut if it’s well written) but it’s got to have a good plot, good characters… you get the picture. "

Call me horribly irrational, but the "any kind of story/pairing/universe" pretty much tells me that anything goes. And setting a limit on that seems completely and utterly against the nature of the list.


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[> [> [> [> [> Re: ::jumps in with an Intentional Tort!!:: -- joan the english chick, 07:27:09 06/20/02 Thu

At the risk of going off on a completely irrelevant tangent, it's my understanding that people who make movies about Real People and real events take pains to get consent first. For example, the people making "A Beautiful Mind" got consent from John Nash. Now if you were to write to Britney Spears and say "may I write a sexually explicit story about you in a lesbian relationship with a vampire slayer," and she said yes, I would probably be fine with that.

And I think the difference between putting fictional characters into a real event, and putting a real person into fictional situations, should be obvious. The former does no harm to anyone. The latter does harm to the subject, and, one could argue, the audience as well. But that's a WHOLE nother debate. So I'll shut up now.

-joan the english chick


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[> [> [> [> Re: ::jumps in with an Intentional Tort!!:: -- Melle, 06:49:54 06/20/02 Thu

Okay, first of all, thank you. No, really, no sarcasm there. I've been having this discussion for the better part of three years, and this is the first time I've heard an argument I hadn't seen before. :) Anyway.

Light>

Hm, well I'm not all that sure RPF would qualify for either 1) or 4), but you do have a point. However, that legal risk is for us to take. I own what is possibly the biggest geared-towards-hosting-RPF domain out there, and I *know* I'm taking a risk. But that's my risk to take.

Reccing a story to someone does not put that someone in danger. Hell, I have serious doubts that even *reading* said story would put people at risk, but I'm not a lawyer. Like Kate said, it's not really about (the legalities of) RPF, but about whether people are allowed to impose their moral standards on everyone else on a *recc list*.

(I also have serious doubts anyone would ever sue over RPF, if only becuase it would give the story more publicity. But that's me.)

>It doesn't matter if it is knowingly false. See above.

Not in this case, no, but relating to the post I was replying to, it did. :)


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[> [> [> [> [> Re: ::jumps in with an Intentional Tort!!:: -- angela, 11:42:33 06/20/02 Thu

Seriously not sarcastic? Anyway, I'm one of the moderators of the list, and while I don't give a rat's ass about what is or isn't rec'd (I generally only care if enough information is given for when we post a link to something) - I'm trying to look at the future consequences of allowing it and am worried about what would happen if RPF got enough recs to make it into the archive we've been building. I know you said you run a RPF archive and you're aware of the legalities, but I'm not sure if our host would be willing to take that risk, and I don't know if I'm prepared to ask her to do so.

I mean, what would you say if we allowed RPF, but then said it wasn't going to be archived, no matter how many people loved a particular story? That's still pretty biased against RPF. I don't know. Sigh. What's the saying? You can please some of the people some of the time, but not all of the people all of the time?


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[> [> [> [> [> [> Re: ::jumps in with an Intentional Tort!!:: -- Melle, 09:09:31 06/24/02 Mon

>Seriously not sarcastic?

Seriously. ^_^

>I know you said you
>run a RPF archive and you're aware of the legalities,
>but I'm not sure if our host would be willing to take
>that risk, and I don't know if I'm prepared to ask her
>to do so.

And I'm not saying you should. I mean, yeah, I've got a huge (150+ MB) domain, mostly full of RPS, but that's me. I'm not exactly known for my carefulness, and also, I'm Belgium, our webhost is Brazillian, and most celebrities are American, so I honestly don't even know which laws we'd fall under.

Er, point: whether or not to have RPF on your website is a decision that's, presumable, made mostly for legal reasons. It's not necessarily discriminating, but mostly just a rational decision. But if you have a recc list, and you say people can recc *any*thing, regardless of BDSM/rape/death content, *then* it's discrimination to say "You can recc anything, except *that*."

>I mean, what would you say if we allowed RPF, but then
>said it wasn't going to be archived, no matter how
>many people loved a particular story? That's still
>pretty biased against RPF.

Well, yes, I'd feel that way. But you know, at least that's an actual compromise. "Only RPF without smut" isn't a compromise, it's discrimination not only against RPF, but also against smut. It somehow gives the impression that smut is bad, or worse, or. Something.

(Not entirely clear-headed right now, sorry. If I'm confusing, just make me repeat this. :)


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[> [> [> [> Re: ::jumps in with an Intentional Tort!!:: -- joan the english chick, 07:29:38 06/20/02 Thu

Angela, thanks for the interesting info about legalities of RPF. Purely out of curiosity, would you say that this makes RPF more, or less, legally questionable than regular fanfic about the characters?

-joan the english chick


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[> [> [> [> [> hmm... -- angela, 12:02:33 06/20/02 Thu

>Purely out of curiosity, would you say that this makes RPF more, or less, legally questionable than regular fanfic about the characters?

FOr me, it's more of a matter of "which type of fiction has a viable defense." In my opinion, RPF would be much more difficult to defend than a regular fan fiction. To my knowledge, RPF usually has a disclaimer saying that it isn't true, but I really don't think that's enough if defamation or privacy based torts were brought. At least with regular fan fiction, you can play around with the fair use clause in the Copyright act. Also, RPF has more civil options for a suit than FPF does - FPF is pretty much limited to copyright violations, whereas RPF can run the gamut of tort law. Then again, the torts that RPF would be brought under are much more difficult to prove and win than a copyright violation...

I guess my answer, Joan, would be that I don't know. :) My gut instinct would be that RPF is more illegal, but only because there is a *real* victim to it. Imagine that you were a juror - would you be more inclined to feel sorry for an actress, crying on the stand because people are writing stories about her having sex with other people and being very graphic in describing her body and emotions, etc., or would you feel more sorry for a corporate executive who owns a fiction character that people are writing about? Most of the issues above for RPF come down to whether there was something that a reasonable person would find objectionable. If that reasonable person was asked to step into the actress's or executive's shoes, what do you think they would find more objectionable?


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[> [> [> [> [> [> Re: hmm... -- Dara S., 19:22:46 06/20/02 Thu

(Sorry, I know it probably looks like I'm picking on your posts, but it's nothing personal.)

>FOr me, it's more of a matter of "which type of
>fiction has a viable defense." In my opinion, RPF
>would be much more difficult to defend than a regular
>fan fiction. To my knowledge, RPF usually has a
>disclaimer saying that it isn't true, but I really
>don't think that's enough if defamation or privacy
>based torts were brought.

See my other post. The disclaimer just might be what *does* save your butt with RPS, since the cornerstone of a libel complaint is the idea that an untruth is presented as truth. Story disclaimed as fiction == no false claims of fact.

>At least with regular fan
>fiction, you can play around with the fair use clause
>in the Copyright act. Also, RPF has more civil
>options for a suit than FPF does - FPF is pretty much
>limited to copyright violations, whereas RPF can run
>the gamut of tort law. Then again, the torts that RPF
>would be brought under are much more difficult to
>prove and win than a copyright violation...

Exactly.

>I guess my answer, Joan, would be that I don't know.
>:) My gut instinct would be that RPF is more illegal,
>but only because there is a *real* victim to it.
>Imagine that you were a juror - would you be more
>inclined to feel sorry for an actress, crying on the
>stand because people are writing stories about her
>having sex with other people and being very graphic in
>describing her body and emotions, etc., or would you
>feel more sorry for a corporate executive who owns a
>fiction character that people are writing about?

It doesn't matter. If a jury lets sympathy for a teary-eyed victim lead them to ignore the law in their judgement, it will be thrown out either by the presiding judge, or on appeal. Such was the case with Kim Pring, a former Miss America contestant who sued Penthouse for printing a story wherein a character with more than a coincidental resemblance to her performed sex acts on stage at the Miss America competition. A jury awarded her millions in damages, and an appeals court subsequently threw out the verdict on the grounds that the story couldn't be reasonably understood to describe real facts about Ms. Pring. Likewise, a story clearly presented as fiction would be unlikely to meet that libel standard, either.

Also, for purposes of the case, both sides agreed that Pring was a private citizen. And if a private citizen can't get a libel verdict against a publishing house, a celebrity's chances against a rinky-dink webmaster are pretty slim.

>Most
>of the issues above for RPF come down to whether there
>was something that a reasonable person would find
>objectionable. If that reasonable person was asked to
>step into the actress's or executive's shoes, what do
>you think they would find more objectionable?

If they're the type to object to slash, I can't imagine they'd be much less sympathetic to a teary-eyed author complaining that her beloved characters were turned into gay BDSM sex fiends, if it ever came down to that.


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[> [> [> [> Re: ::jumps in with some further legal information!!:: -- Dara S., 16:32:23 06/20/02 Thu

Sorry, I'm a bystander, too, but I can't let this slide. Disclaimer: what I say here applies only to the U.S., and I'm talking about the law as it applies to celebrities. There are different standards for private citizens.

>Technically, an author of RPF can be sued for posting
>a story. There is an intentional tort referred to as
>Publication of Facts Placing Plaintiff in a False
>Light, and it's a sort of branch of Invasion of
>Privacy. For a Plaintiff to win such an action, they
>must prove that: 1) Defendant's conduct is
>objecitonable to a reasonable person standard;

"Reasonable person standard" is a fairly fluid concept, if I'm not mistaken. A vanilla slash story might be horrifically offensive to someone from the Bible Belt, but not so much to someone from San Francisco. In this day and age, it's by no means a given conclusion that everybody on the planet finds gay content offensive. If you're talking about the "reasonable publisher standard" recognized in some states, professional publications have published RPS/RPHet/RPF without consequences, so it isn't unheard of.

>2) A
>false impression of the Plaintiff was presented; 3)
>Statements were made knowing that it was false, or
>with a reckless disregard as to its truth or falsity;
>and,

But these are both open to debate. If a story is clearly disclaimered "This is fiction!" has a false impression really been presented? Likewise, if the author *has* taken care to ensure that readers don't take it as a statement of fact (i.e. by using said disclaimer), they haven't exactly shown reckless disregard, have they?

>4) Wide disemination (publication) was made of
>the false impression.

Define "wide dissemination". Does a website with less than 10,000 readers count? Not in at least one case. An author of hockey player slash of my acquaintance was narc'ed on to a players' association, and their response was that her site was so low-traffic, it wasn't even worth bothering with. The publicity from a libel suit would, in most cases, do more to put the RPS in the public eye than the original website did.

>If that doesn't work, there is always Intentional
>Infliction of Emotional Distress.

Not for celebrities in the U.S., there isn't. See Falwell v. Hustler. No less than the Supreme Court ruled that celebrities don't have the same right to be free of emotional distress as private citizens do. (The libel complaint was thrown out by the original jury, as they concluded that the "Falwell's [literally] a motherf**ker" ad parody couldn't reasonably be understood to describe actual facts.)

>Plus, both
>actions can give you punitive damages!

So can copyright infringement, unless I'm mistaken.

I'll reiterate what I've said elsewhere: if you're *that* worried about legal action, stick to original characters.


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