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

[rivkat.livejournal.com]

Elsewhere in the comments, I speculated on this a bit -- the constitutional test says that artistic merit is protected. There are (at least) two possible interpretations -- one that technical skill produces merit, so that a beautiful picture of underage sex would be constitutionally protected. The best example for this argument is probably, as giandujakiss suggested, a Mapplethorpe photo. Its beauty alone, regardless of whether it has some message we could express in words, is reason to say it can't be banned. Another view, which LJ seems to be adopting, is that "merit" must include something about the subject matter. The problem with that is that it's really hard to figure out what artistic merit means, other than "not depicting underage sex." As people are saying in response to LJ's explanation, that isn't a standard at all and is entirely hostage to the viewer's interpretation of the art. This is problematic for art, which may not be reducible to a political, moral, or other message. I should say that this is a problem that begins with the obscenity standard; LJ's trouble implementing it grows from the initial conceptual fuzziness of the standard.

[cryptoxin.livejournal.com]

Thanks for your thoughts; I was thinking after I commented that for fandom, part of the merit will be totally invisible to LJ or outsiders -- specifically, the contextual/intertextual part about how a picture comments on canon and fanon. In this case, it's less a question of "Snape and Harry are so doing it!" than how they're doing it and what it conveys about their relationship.

I don't look at much fanart -- hardly any really -- so I wonder if fandom has developed a critical discourse that goes beyond "pretty!" and "hot!" here. I'd be surprised if such a fan-critical discourse didn't exist, though thinking of fanfiction it seems like there's also an anti-critical tendency in play (at least, something that mitigates against aesthetic distinctions while allowing some degree of technical critique and formal classification).

*ponders*

[rivkat.livejournal.com]

Very interesting -- I don't look at much fanart either, so I'm equally uncertain. There are a lot of attempts to develop a vidding aesthetic, which I'd say is distinctive as compared to, say, machinima or music videos generally. I just don't know if fanart has similar stuff happening, but I'd be a bit surprised if it weren't. I expect, however, that explicit aesthetics coexist with lots of "pretty!" just as it does with fanfic and, to a somewhat lesser extent, with fanvids.