Law like love

[rivkat]

Over the years I've seen a number of fan fiction/copyright debates, and (as with most ideological disputes) people's convictions about fan fiction's legality correlate strongly, but not perfectly, with their convictions about its morality. But there's always a set of fan writers & readers who say, often without investigating the subject much, "I know it's illegal but it shouldn't be," and I assume some on the other side who say the opposite, though I don't hang out with them.

The exact same thing happens with discussions of art & fiction featuring underage sex. And here, frankly, we're on firmer ground than with fan fiction & copyright, since there aren't any litigated cases on fan fiction. Depictions that aren't pictures or video of actual minors are judged by the standards for obscenity, not child porn. It is true that the moral panic doesn't distinguish between those, so what the law actually says is not the end of the matter. It is also true that a given piece of fan art could be obscene (writing is much less likely to be so, though it's not legally impossible), just as a given fan story could infringe. The reason lawyers give unsatisfactory answers to reasonable questions is often that the truest answer is "it depends." Moreover, there are of course a huge number of things it's immoral but not illegal to do or say; citizens must populate that set for themselves, whether in communities or as a matter of individual choice.

I'll leave you with the Auden poem.

Comments

[kitsune13.livejournal.com]

This is great, thank you.

I would think that the availability of comparable material through major book chains -- such as Amazon and Borders -- would make an obscenity accusation for a fan work much less viable. For example, there is nothing in, say, Ponderosa's work that is *more* explicit than anything that can be found in Moore and Gebbie's Lost Girls; the latter includes some extremely graphic depictions of children and adults having sex. The very existence of Lost girls would, i think, make prosecution of fan artists for depicting underage sex *extremely* difficult.

[londonkds.livejournal.com]

Lost Girls is a graphic novel sold at quite high price through physical stores, whereas Potter fanart is distributed free on the net where LITTLE KIDS!!! could see it. (Yes, I know many erotic fanfic/fanart creators take measures to keep children away from the porn, a jury or tabloid journalist won't.)

[kitsune13.livejournal.com]

Good point. :) But I think my point still stands -- Ponderosa et al. are being attacked for the *content* of their art, which is presumed to be illegal/obscene; in none of the official communications has there been *any* mention of "this needs to be impossible for minors to ACCESS," it's all "OMG you're DEPICTING minors." In which case, then yes, the existence of LG is extremely pertinent.