RPS or RPF and Fanfic, slash in particular

[applecameron]

I normally wouldn't bother to stick my toe anywhere near a discussion of the merits of fanfic and "real people stories" (RPS), but I am compelled to point out what, to me, has always been obvious:

1. There is no text to poach, in real people stories.

You -- I, as an author -- know nothing about these people. Reading a magazine article that Ioan Gruffudd likes a particular brand of scotch is *nothing*. It tells you nothing about his mode of thinking, how he responds emotionally to grief, or anything at all about what the inside of his head might be like.

Elijah Wood is not Frodo, any more than he's the Artful Dodger, so you can't extrapolate behaviors from LOTR or Oliver Twist and assign them to the actor. You can, and fanfic writers do, assign them to the character. Because that is what the actor is doing, playing someone else. If they're doing their jobs right, it's not them on screen, it's the character.

2. I do find it personally reprehensible.

Waving off the question of "how would you feel if it were you and your best friend being written about", which telesilla did in her post on this subject as a "bullshit question", doesn't do it justice. I don't think that's a bullshit question at all, given that so many of us follow one or more value systems that include empathizing over the effects of an action on someone else. Why is it not OK to ask how you would feel if you were the object, and not the one with the gaze?

I wouldn't want someone writing fiction about me, because it's dangerously close to, if not spot-on, libel, especially if it involves, say, sexual activity of which I may not approve IRL, given this society's particular obsession with sexuality and sexual pecadillos -- it could be any activity. And, again, the author would have no way of knowing whether I approve of such activity IRL because...see #1.

I have family in "the industry", and I would be appalled and deeply offended if a complete stranger, on the basis of no research or real data about, say, my brother, decided to write a story about him fucking anyone other than his wife. Because *I* know, and he knows, and *she* knows, that's she's the only person he *does* fuck. But now someone has just gone and written otherwise.

Which leads to my last point,

3. The professional persona.

That's a celebrity's name being used in a story that he or she did not permit or approve, and as such, it's a violation of his or her rights to their professional persona as an actor, as a celebrity, which has a certain value associated with it. It's considered property, such that he or she has the right to control how that property, that marketeable name and image, gets used.

When you write stories about real people, you're blurring the lines between news and fiction in a major way, whether you've put up a disclaimer that "this is fiction" or not. People have sued over less, over having "fictional characters" in a novel obviously be based on them, much less "fictional stories" that use their actual names.

It's hard enough trying to rationalize fanfic under a fair-use argument against violation of copyright; I don't see where to even start trying for RPS. There is no fair-use for people.


Edited later to add:

(Just so you know, since the discussion in comments is getting a little technical, and actually, by now has no doubt run up to the limits of my legal knowledge: I'm not a lawyer, but I play one on TV.)

Comments

[tanacawyr.livejournal.com]

It really is considered property, and property means the owner has the right to exploit it. I'm not the owner? I not the one with the right to exploit, then.

How does this differ from "exploiting" the fiction itself? With things that are royalty-free public domain type stuff, like Shakespeare, it's one thing. But something like "Stargate SG-1" might also be said to be property, like a public persona. Is it the same thing? Is this the sort of thing that defines the difference between copyright and trademark (one is for an implementation of a particular idea and the other is a brand identity)?

[applecameron.livejournal.com]

Oh, they're both property, AFAIK.

"Public persona" is specific to a person. Mary Lou Retton, or her agents, are the only people who can sell her endorsement - her face - to General Mills to be put on a Wheaties box, because it's her face and no one else's. There is no fiction. (Technically, even though we can get in arguments about "image" versus her real self.)

Stargate, on the other hand, is a TV show, also a piece of property, because it's someone's creative work. But it's external to the creator, it's not part of someone's person. (It's not a public or private or corporate person, it's just a thing.) And the owners of that work have the right to exploit it because they created it. The flip side of the right to exploit is the right to exclude somebody else. That's why you get to throw trespassers off your lawn. :-)

Fair use for someone else's creative work includes quoting, parodying, using in a transformative way (which can create new art), especially in a different medium, and the non-profit aspect so many fanfic writers rely on. (My excuses for letting myself write fanfic have to do with the question of when does a trademarked character on a copyrighted show stop being one artist's property and become part of the cultural fabric, thus everyone's property, along with some creative handwaving on the transformative aspect of fair use. http://www.whoosh.org/issue25/lee1.html and http://www.whoosh.org/issue25/lee1a.html is a good reference on this subject.)

The only "fair use" about a celebrity, though, is as news material. Someone doesn't have to ask permission to write a news article about Mary Lou, or put a photo on the front page of the paper when they do so. But everything else? Putting her endorsement on something she doesn't actually endorse, or writing a false news story about her? Mary could sue, sue, sue for libel. Sue, Mary, sue.

(OK, *now* you know why I picked Mary Lou Retton for my example. I could *not* resist.)

I don't know shit-all about the difference between trademark and copyright, so I can't really say. I don't think Mary Lou can trademark herself, though people might talk about promoting her as "branding", but I'm not sure, and I *know* she can't copyright herself, she's a person, not a creative work.

This persona business is, as I understand it, a different set of protections. It just so happens, that in this intersection of real-people and fiction fandoms, the end result -- of authors being worried about TPTB coming down on them like a steamroller on PMS -- is very similar.

[tanacawyr.livejournal.com]

So the legal key is not that it's property, since that would rule out both fanfiction and RPF. The crux of the issue is that there is no legally defined fair use for made-up stories about actual people. The only thing that corresponds to the idea of "fair use" for real people is news stories.

And while fanfiction fits handily into "fair use" for fictional property, RPF does NOT fit into the analogy of "fair use" for real people/professional personas, which are also property. The only slot that RPF corresponds to in the case of real people/professional personas is handled under libel/slander.

I think I've got it.

[applecameron.livejournal.com]

Yep. Two different animals. Though, I wouldn't say fanfiction fits "handily" into "fair use", the argument is at least *there* to be made.