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Question re. Fan Fiction

red61544

I just notice a randomly posted story on the home page which puts Faith Hill and Kenny Chesney together. I didn't read the story (I'm not a fan of the genre - neither fan fiction nor country music) but am curious about how the laws governing slander and libel apply to fan fiction. I would think such authors are treading on very thin ice, especially when the codes list "much sex". Anyone know how those authors keep out of the courtroom?

Dominions Son
Updated:

@red61544


but am curious about how the laws governing slander and libel apply to fan fiction.


As far as US law goes, slander and libel only apply to false statements of fact, so they would generally not apply to anything presented as fiction.

A fictional story about real celebrities is generally not considered fan fiction. Fan fiction is fictional stories written by fans set in popular movie/TV show/book worlds.

The big legal issue for fan fiction is with copyright and trademark law. Fan fiction generally runs afoul of both.

However, as long as you aren't trying to profit from it most of the big studios and publishers will look the other way. One major exception to look out for is Disney.

Replies:   REP  Crumbly Writer  sejintenej
REP

@Dominions Son

slander and libel only apply to false statements of fact


They also apply to true statements that are made for the purpose of injuring the slandered/libeled party.

Replies:   Dominions Son
Dominions Son
Updated:

@REP


They also apply to true statements that are made for the purpose of injuring the slandered/libeled party.


Not under US law. Under US law, truth is an absolute defense against libel/slander.

https://en.wikipedia.org/wiki/United_States_defamation_law

https://www.eff.org/issues/bloggers/legal/liability/defamation

Replies:   Not_a_ID  REP
Not_a_ID

@Dominions Son

Not under US law. Under US law, truth is an absolute defense against libel/slander.

Pretty much, if it's true, it doesn't qualify.

But that doesn't mean they can't go after you for other things, particularly if they can prove a malicious intent to do harm. At that point they could probably launch a harassment case and sue for "emotional distress" and other damages. Proving that would be a challenge however, and even then they're making one heck of legalistic stretch on it.

Replies:   Dominions Son
Dominions Son

@Not_a_ID

At that point they could probably launch a harassment case


It's been tried and rejected by the appellate courts already. For speech to constitute harassment, the speech must be directed at the harassed person as a listener. Speech about a person directed at third parties can not constitute harassment.

"Emotional distress" is a form of damages, it is not a tort (cause of action) in it's own right. You can't sue for "emotional distress, you must sue for a legally recognized cause of action claiming "emotional distress" as a form of damage.

US courts are generally reluctant to recognize new or novel causes of action at common law.

REP
Updated:

@Dominions Son


truth is an absolute defense against libel/slander.


Massachusetts law allows true statements made for malicious purposes to be defined as defamation (i.e. slander or libel). The Supreme Court upheld the Massachusetts' law.

"http://writ.news.findlaw.com/hilden/20090330.html">

Extract from Libel Laws and the Truth: What If the Statement is True? by Michelle Atkins December 2009.

A person who wishes to successfully sue you for libel must generally prove the statement is false. In most states, truth is a complete defense to a libel action. You generally can't sue if the statement in question is true, no matter how unpleasant the statement or the results of its publication.

"https://www.legalzoom.com/articles/libel-laws-and-the-truth-what-if-the-statement-is-true"

What the above references are saying is that there are exceptions in some states to the commonly held belief that you cannot be sued for defamation if the statement is true.

Note to DS: tried to use link command in edit menu to create the link. It didn't work for me. What did you do to create the hyperlink?

Ernest Bywater

@red61544

how the laws governing slander and libel apply


It's extremely unlikely they could do you for libel or slander, however, they could have a case to take you to court for the use of their name without their permission. There is a special name for this type of case, but it's kind of like a trademark infringement case and the only cases I've heard of not getting thrown out of court is when the person is famous and their name isn't extremely common. It would all come down to the court they sue you in.

Replies:   Dominions Son
Dominions Son

@REP

The Noonan v. Staples case you cite is only a Circuit court decision. It is a vast departure from existing precedent on defamation and the Massachusetts law is unlikely to be upheld if that or another case ever gets to the Supreme court.

Replies:   REP
REP
Updated:

@Dominions Son

You are correct. It was an Appeals Circuit Court decision. However, that court did uphold the Massachusetts' law. What happens if it ever goes to the Supreme Court is nothing more than conjecture at this point.

At this time in Massachusetts it is possible to be sued for a true statement made for malicious purposes, which is what I said in my original post.

StarFleetCarl

@red61544

Anyone know how those authors keep out of the courtroom?


Don't try to publish for money, and if the original owner asks that you pull your work, you pull your work.

Seriously, it's about that simple. If you DO try to publish for money, then you 'pull to publish'. The most famous example of that is '50 Shades of Grey', which was originally written as a Twilight fan fiction.

In an of itself, fan fiction is considered a derivative work and can also protected under Copyright law. Key word there being can - it depends upon how and what the author of the fan fiction is doing, and it also depends upon what the author of the original text or item does.

When you actually use real people in fiction, that's when it gets sticky. But at the same time, that happens in films all the time. So disclaimer, disclaimer, disclaimer. Doesn't mean you still might not get into trouble, but it will help mitigate the issue.

Replies:   Not_a_ID  Crumbly Writer
Not_a_ID

@StarFleetCarl

Don't try to publish for money, and if the original owner asks that you pull your work, you pull your work.


Although you can often get away with the release works of parody for profit. You can pretty much expect to get sued all the same if you don't obtain permission first(Weird Al normally gets permission for example, but as he is sampling music as well..). How much success they have in court may be another matter, in the U.S. getting to the Supreme Court over it isn't unheard of.

But parody is a different kind of critter than fan-fiction most of the time.

Crumbly Writer

@Dominions Son

However, as long as you aren't trying to profit from it most of the big studios and publishers will look the other way. One major exception to look out for is Disney.

And since Disney purchased George Lucas's "Star Wars" franchise, and is in the process of repackaging the traditional Disney focus on cartoon characters with Star Wars icons, a typical fan-fiction source, long allowed by Lucas--within certain restrictions--are now being actively pursued.

The whole key to fan-fiction is that it's generally only 'allowed', when the copyright owners don't object, and view it as a way of generating additional interest in their product (i.e. no harm to the copyright owner). However, that permissive attitude can change overnight (say when someone's children take over the running of their media empires), and no longer consider the work 'a part of society'.

Crumbly Writer

@StarFleetCarl

But at the same time, that happens in films all the time.

In those cases, the references to 'common name' figures are rarely malicious, or more commonly, focus on deceased individuals. Referencing the Sitting (or past) President of the U.S. isn't forbidden, as everyone knows who that is. Claiming he's a Muslim, out to destroy America in a massive conspiracy could be--though Obama has refused to bring suit. In that case, it's clear the intent is malicious (false statement made in an attempt to hurt the individual). Obama's thinking, presumably, is that he'd rather not grant them additional publicity by acknowledging the clearly fallacious claims.

Replies:   StarFleetCarl
docholladay

@REP

Note to DS: tried to use link command in edit menu to create the link. It didn't work for me. What did you do to create the hyperlink?


I am just making a guess here. But try opening that link in a separate tab/window or just right click the link choosing to copy the address(link). Change tabs or windows to the one where you are writing the forum message. Right click on empty line selecting "Paste" as the command. Using your sol author page as an example here:
http://storiesonline.net/a/REP

You can repeat that for as many links as needed. I find the software will then see it as a hyperlink. Of course there are probably easier ways as well.

Replies:   REP
StarFleetCarl
Updated:

@Crumbly Writer

the clearly fallacious claims


Unless they're not fallacious... :)

I was actually thinking more of the way Nixon was portrayed in the X-men movies, actually.

My (only so far) story on here is fan fiction, based upon a video game. The main reason I'm honestly not concerned about Bethesda coming after me is that they effectively and explicitly allow fan fiction, because the game allows for user customization and mods.

Mainstream writers also use historical and famous figures in their stories and novels as well. Ever read any Harry Turtledove alternate history or the WEB Griffin war books?

Replies:   Crumbly Writer
Ernest Bywater

Fan fiction is clearly a copyright violation, however, many authors don't worry about it. But there are two major issues to be concerned with it.

1. The author may change their mind, as happened in a couple of cases. In one the author didn't object to fan fiction until some extreme porn fan fiction turned up, then the only way they could police that dilution of the world they built was to stamp down heavily on all fan fiction, because of the way the some laws work it's an all or nothing proposition.

2. Some fan goes off on a tangent where the author is planning to go in the future, with the result you now run into serious issues on if the author stole the new direction from the fan or not. There is one case where an author ceased involvement in forums about their works and ceased writing in a series for a few years because of a fan fiction story that went in a direction he had for a partially written story. Because the fan fic story was published before he finished his all sorts of copyright issues arose around the story and who owned what parts of it. The author withdrew from public involvement because of it.

Replies:   Crumbly Writer
Crumbly Writer

@StarFleetCarl

Mainstream writers also use historical and famous figures in their stories and novels as well. Ever read any Harry Turtledove alternate history or the WEB Griffin war books?

That's why I emphasized utilizing 'dead people' in films, in particular. The deceased are less likely to sue, and even if their relatives persist, they're unlikely to win over arguments considering their relatives 'intent'. That's why you see those uses of dead people all the time in moves (and TV ads), but rarely see the same techniques used for living individuals.

REP

@docholladay

Thanks. I tried it and it worked for me.

Crumbly Writer

@Ernest Bywater

There is one case where an author ceased involvement in forums about their works and ceased writing in a series for a few years because of a fan fiction story that went in a direction he had for a partially written story. Because the fan fic story was published before he finished his all sorts of copyright issues arose around the story and who owned what parts of it. The author withdrew from public involvement because of it.

That's generally fairly easily defended. All you need is a source document predating the publication of the fan-fiction piece showing that story element in play. That 'evidence' could be an initial draft or email to an editor.

My guess is, when an author quits writing, and blames in on legal issues, it's more likely a serious case of writer's block he's afraid to admit to. :(

Replies:   Ernest Bywater
Ernest Bywater

@Crumbly Writer

All you need is a source document predating the publication of the fan-fiction piece showing that story element in play. That 'evidence' could be an initial draft or email to an editor.


That approach supposes you have copies with some date stamp that were provided to an outside source. I've got some part written stories that are over 10 years old and unfinished, never been seen by anyone else. The fact they only exist on my computer with some sort of computer added date stamp is not sufficient legal evidence because that date can be easily altered by me to read anything I like. Like many authors I don't send a copy out for editing until after the story is completed.

In the case I mentioned (wish I could remember the guy's name) he was lucky in he had an exchange of emails with his publisher discussing the possible plot developments that predate the publishing of the fan fic, but the publishing of the fan fic story put a hold while the publisher sought legal advice, and that pissed the author off enough for him to comment on the forums and to pull out of all involvement on those forums on the advice of his publisher.

The laws on such things are never clear due to them being different in different countries,and how do you decide which set of laws to use across the borders.

Replies:   Crumbly Writer
sejintenej

@Dominions Son


A fictional story about real celebrities is generally not considered fan fiction. Fan fiction is fictional stories written by fans set in popular movie/TV show/book worlds.

I didn't know who Faith Hill is but in 20 seconds I found 14 definites in California and some in NT City. She would have to prove that it is her and not one of those I found with a publicly listed phone number

docholladay

For me the best fanfic is where the original characters are used as supporting background characters. No changes can be made to them, just use as supporting characters the way historical people are used.

They are used in supporting roles fitting their known personalities and habits. Done properly it makes a story pop a little more. Same as businesses and such can be used in a supporting role that fits their normal business activities.

Replies:   Crumbly Writer
Dominions Son
Updated:

@REP


Note to DS: tried to use link command in edit menu to create the link. It didn't work for me. What did you do to create the hyperlink?


For a simple hyperlink like what I did, just copy the URL into the post, nothing special. Make sure that there are spaces on both ends, no abutting punctuation. The system will automatically detect a URL and create a link. No need to use the link button.

The link button is used if you want to tie a link to text other than the URL.

The link button will help create an HTML tag tying a URL to some other text. The think to remember about HTML tags is that they are supposed to come in pairs, an open tag and a close tag.

Click the link button put the URL in the dialog box and it creates the open tag for a hyperlink.

It also changes the Link button to /link. Clicking /link will create the close tag for the hyperlink. The text between the open tag and close tag is what the link will be tied to.

Example: changed to [] so you can see what the html code should look like

[a href="http: // storiesonline. net/d/All"]SOL Forum All Threads By Date[/a]

Now, the same thing with the correct brackets

SOL Forum All Threads By Date

Replies:   REP
Dominions Son

@Ernest Bywater

It's extremely unlikely they could do you for libel or slander, however, they could have a case to take you to court for the use of their name without their permission. There is a special name for this type of case, but it's kind of like a trademark infringement case and the only cases I've heard of not getting thrown out of court is when the person is famous and their name isn't extremely common.


It's called "Right of Publicity". Very popular in Europe. Only one state in the US recognizes a "right of publicity", California (where Hollywood is located).

Dominions Son

@sejintenej

I didn't know who Faith Hill


The celebrity Faith Hill is a country music singer. The man mentioned in the OP with Faith Hill, Kenny Chesney, is another country music singer.

There are stories circulating that Faith Hill is having an affair with Kenny Chesney. Of course, Faith Hill's husband, country music singer Tim McGraw, allegedly had an affair with Talor Swift.

REP

@Dominions Son

Thanks

Crumbly Writer

@Ernest Bywater

That approach supposes you have copies with some date stamp that were provided to an outside source. I've got some part written stories that are over 10 years old and unfinished, never been seen by anyone else. The fact they only exist on my computer with some sort of computer added date stamp is not sufficient legal evidence because that date can be easily altered by me to read anything I like. Like many authors I don't send a copy out for editing until after the story is completed.

That's why, for hundreds of years, authors would routinely mail a copy of their initial manuscript to themselves, never to open it, so that, if contested, they could prove the story idea was indeed, theirs alone.

It's hardly a new problem, and emailing a chapter or two to yourself is much easier than mailing an entire manuscript across the country. The point is, there are ways to cover your ass. If you don't, then you only have yourself to blame.

In fact, many sites, such as Bowker, have a facility to record your entire document, so they can, if the need ever arises, do a literary comparison between document to determine whether someone is ripping you off. (I've never used it, since my stories are rarely ever 'finished', but still, the facilities still exist.)

Replies:   Ernest Bywater
Crumbly Writer

@sejintenej

I didn't know who Faith Hill is but in 20 seconds I found 14 definites in California and some in NT City. She would have to prove that it is her and not one of those I found with a publicly listed phone number

If the character is a successful country singer, than it's safe to assume they're one and the same. Your ignorance of country music is NOT a proper legal defense. ;)

Crumbly Writer

@docholladay

For me the best fanfic is where the original characters are used as supporting background characters. No changes can be made to them, just use as supporting characters the way historical people are used.

They are used in supporting roles fitting their known personalities and habits. Done properly it makes a story pop a little more. Same as businesses and such can be used in a supporting role that fits their normal business activities.

Such as a story where the protagonists decide to flee the country of their birth, following the results of a rancorous election. If the supporters of the other candidate also follow them, you've got yourself a strong story dynamic. :)

Ernest Bywater

@Crumbly Writer

That's why, for hundreds of years, authors would routinely mail a copy of their initial manuscript to themselves, never to open it, so that, if contested, they could prove the story idea was indeed, theirs alone.


That's a lot of mail costs while you're still working on it. I heard of this approach before, bu the only court case I've heard of where it was used it was rejected by the court on the basis there was no independent evidence of when the envelope was sealed up with the material inside it.

Ayep, there are ways to cover your rear, and one of the ways for an established author is to ban fan fic on their series.

Replies:   Not_a_ID
Not_a_ID

@Ernest Bywater

Ayep, there are ways to cover your rear, and one of the ways for an established author is to ban fan fic on their series.


Well, a few will attempt it by firewalling themselves off. If they never read it, it can't be a source. So if they have a blanket policy of avoiding any/all fan fiction, and go so far as documenting any accidental encounters they do have, it helps.

Although famous authors more often have problems with fan mail that does much the same thing, and not every author is able to have their fan mail screened. When people often mail you hardcover and paperback books to sign, a story manuscript in the mail might slip through on occasion(if unscreened).

Replies:   Crumbly Writer
Crumbly Writer

@Not_a_ID

Well, a few will attempt it by firewalling themselves off. If they never read it, it can't be a source.

The author/story we're discussing wouldn't fall under that category, since an amateur fan-fic authors wrote a story all on his own that guessed where he was going before he could finish his own work.

Even if they never read it is no guarantee someone else can't claim an idea first. What's more, there's not much you can do, since you can't trademark ideas, only the actual physical arrangement of words within a story (and occasionally copyright titles and character names).

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