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Date Posted: 07:29:38 06/20/02 Thu
Author: joan the english chick
Subject: Re: ::jumps in with an Intentional Tort!!::
In reply to: angela 's message, "::jumps in with an Intentional Tort!!::" on 21:40:43 06/19/02 Wed

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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Replies:

[> [> [> [> [> 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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