State of Fear: Fandom and Obscenity Law

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News Media Commentary
Title: State of Fear: Fandom and Obscenity Law
Commentator: Casey Fiesler
Date(s): December 22, 2008
Venue: online
External Links: page 1; page 2; page 3; page 4
Click here for related articles on Fanlore.

State of Fear: Fandom and Obscenity Law is a 2008 article by Casey Fiesler.

The subtitle: "Fandom can sometimes be a scary place, legally."

It was posted to Firefox News, a for-profit fan site.

Some Topics Discussed

  • fans are at the law's mercy
  • description of a fan, Christoper Hadley, who ordered some manga from Japan and had his house searched, possessions confiscated
  • a case of a man who'd written a violent and explicit story about the band, "Girls Aloud," and posted it to an unnamed fantasy pornography website
  • child pornography laws
  • manga style art and minors
  • Strikethrough
  • "the other problem that fan art shares with manga: many people don't consider it to be "real" art"
  • a plug to donate to The Comic Book Legal Defense Fund, and buy Neil Gaiman's scents at Black Phoenix Alchemy Lab, since the proceeds go to the fund

From the Article

Many participants in fandom--whether creators or consumers of fan work--are in the rather uncomfortable position of wanting to obey the law while simultaneously not knowing how they could potentially be breaking it. This is through no fault of theirs. It just happens that the most common legal issues in fandom are also some of the fuzziest, legally: copyright and obscenity. Whether it's the case-specific fair use doctrine or the subjective "community standards" Miller test for obscenity, it isn't surprising that a lot of fan fiction writers and fan artists spend time worrying about whether they're doing something that could get them into legal trouble. But it's not as if they could get thrown in jail for any of it… or could they?

Many fan artists draw in anime style, which presents the same problems as Hadley's manga. Characters often simply look younger than they are, for a variety of reasons. Men are drawn androgynously. There is also a Japanese taboo regarding pubic hair, so it is usually left out even though it makes the subject appear even younger.

An additional problem with fan art is that it depicts characters who, whereas they could be any age in the illustration just as fan fiction often takes place years after the end of a canon, are generally perceived as being stuck in time at a certain age. Someone unfamiliar with fandom who sees a sexually-explicit drawing of a boy with round glasses and a lightning bolt scar could justifiably assume that they are looking at virtual child pornography.

Many people may see these examples--drawings of minors (even if they only look like minors) having sex, and stories about rape and murder--to be poor ones. After all, the world certainly would not be worse off without it. However, the issue is that there is no obvious place to draw the line. The definition of "obscene" is so subjective and varies so wildly from person to person that any precedent of this sort could be dangerous.

If we are talking about line-drawing, just look at the example of fan fiction. There are those that say the entire enterprise is weird and wrong. There are those that say that canon-based fic is great but slash is weird and wrong. There are those who say that PG fan fiction is okay, but adult fan fiction is weird and wrong. There are who like adult fan fiction but think that anything with underage characters are wrong. There are those who don't mind underage characters but think that anything with rape is wrong. No matter where you fall on that spectrum (well, unless you're in the first category, in which case you're probably not a Firefox News reader), there is probably someone who thinks that what you enjoy is… weird and wrong.

The point of this speculation was not to scare anyone, and certainly not to scare anyone away from fandom or even away from adult fan art. However, the fact remains that there is a potential problem here, and it is simply something to be aware of and thoughtful about.