The Octopod's Garden

megyal suggested I do a brief meta on this subject, and I thought it was a great idea.

When writing fictional stories about real people, it isn't libel or slander I'm most concerned about, it's Misuse of Name or Likeness or False Light claims (Note that there are significant problems with these articles, I am just linking them as a basic guideline).

The celebs themselves might not care what we write, but their labels' or studios' lawyers most certainly do. So it up to us as writers to protect ourselves to the best of our ability with disclaimers.

False Light requires that people read the story and believe it is true. A disclaimer that puts all readers on notice that the story is fictional and unauthorized can prevent that.

To defeat a claim of misuse of name or likeness, it is not enough that the story be not for profit - it has to be non-commercial, which is broader. I think that, for instance, having a 'plus' lj account (the one with ads) would be enough to be considered a 'commercial purpose.'

Keep in mind there are two separate questions here: can you be sued, and will you lose the lawsuit if you are. And there is a good possibility that the answer is 'yes' to the first, and 'no' to the second. But practically, if you get sued, you are going to have to spend a lot of money for lawyers and court fees. And you are going to post to all of your friends about it, and probably take down your posts and encourage them to do likewise. So the label's lawyers would still count it as a victory.

So, from where I stand, a good disclaimer a) makes sure that anyone stumbling on the post understands it isn't meant to be true, and b) spells out that it is both not-for-profit and non-commercial (and for that to be worth anything, there shouldn't be any links to anything to buy on the page, whether it's lj inserted ads or things like cafe-press stores or ebay auctions).


Disclaimer: This is not intended as legal advice, and does not create an attorney-client relationship. For legal advice, seek counsel in your jurisdiction.

This started out as a rant about problems I've encountered with non-American authors writing in American fandoms. (Yes, I'm sure it's a problem the other way around, too, but I don't notice that, so you only have to hear me bitching about this way.) But then I realized that a list of mistakes and fixes would be more helpful.

I happen to be very sensitive to Britishisms - more so than the average reader, I think. But it's only when it's in dialogue that it drops me right out of the story. In dialogue, you ruin any chance of me hearing your dialogue as being in character if the line is clearly not the character's idiom.

So, with that in mind, I present my list of ways for non-American authors to make their characters sound more American.

( List )

I think there is a possibility that lj did the right thing. I don’t have the facts, I don’t know what actually happened, but there is at least one way things could have happened where lj did good.

If

1) lj received a complaint
2) about a visual depiction of sexual conduct
3) based on an actual picture of a person under the age of 18 (I don’t care how much it was painted over or manipulated. I care if there is a minor, such as Daniel Radcliffe, who can point at it and say, that’s me under there.)

Then they did the right thing in removing the content and suspending the users. If the users remove the content, and lj won’t reinstate them, and it’s a first offense, that might be unfair, but lj can’t afford to discriminate too much in how it treats people who are reported for the same offense. Also, the more they have to review the images at issue, the more of their employees they are exposing to potential child pornography. Any policy they make is not going to be limited to fannish content – it is going to be for anyone violating the TOS regarding child pornography.

I've previously posted my analysis of US child pornography law here. If I owned lj, I'd want to steer very clear of anything could fall into that category.

I don't know that this is what actually happened, and if real pictures weren't used at all, or the removals were done without being prompted by a complaint, then my position would change. If not, then I'll skip the dogpile on lj.

If you are interested in an analysis of when website owners can be liable for their users' content, check out www.harrassthem.com

I saw this post from vichan which can be summarized as "I only ship people who hate each other in canon" and thought it was fascinating, although not my thing. It made me analyze why I 'ship the 'ships I 'ship.

So I ask you, why do you 'ship who you 'ship?

( My own rambling explanations, spanning multiple fandoms )

So, I thought the whole "LJ is deleting journals" thing was a wild rumor, and I ignored it. But seeing as pornish_pixies is striken through, I guess I have to take this more seriously.

Here's the deal. I like chan/underage fic. I like incest fic. I like rape fic, and BDSM fic, and torture fic. I like power issues, specifically fucked up power issues. That translates to some very dark kinks.

And guess what? I haven't had sex with someone under the age of 21 since high school. I haven't had sex with anyone, period, for years now, unless you count my left hand and the authors of a couple of fine pieces of fanfiction. I wouldn't have sex with anyone in my family if you gave me a billion dollars, and the people I know that have survived incest were obviously very damaged by it.

I do understand that statutory rape, incest, rape and violence are all wrong, and I wouldn't wish them on anyone. Understanding the difference between fantasy and reality is the very definition of sanity.

I would never post any of those things without the appropriate warnings, and would not be the least bit offended if anyone on my flist refused to read something I wrote because it dealt with those issues, or even if they defriended me rather than have that sort of thing show up on their flist.

The best fantasies are the ones that can't come true (because if they could come true, we would be doing them, not writing about them). Having those fantasies does not make me a bad person, a pedophile or a rapist. Acting on those fantasies would not only be repulsive, but physically impossible (since they all require the protagonist to have a penis).

So, come get me, you bastards. Delete my journal. I would thoroughly enjoy being a martyr for the cause of free speech. But you might not like the consequences of that so much. If LJ starts policing its members, it is going to be more responsible for the content - and it just can't police every journal.

eta link to lj archive- haven't tried it yet, but it's got to be better than nothing.

So, I'm still stuck in the ideas in penknife's discussion of "we're not gay, we just love each other." I want to explore the differences in orientation between who a person wants to have sex with, and who they can fall in love with.

Let me start off by saying that I identify as straight, but I think I am a Kinsey 1 not a 0 - and that goes for both sex and love. I wouldn't kick Scarlett Johansson out of bed for eating crackers, and if I met a woman I thought was my soulmate, it would be odd, but not undoable. As a result, I proceed from the underlying assumption that deep down, everyone is like me. I tend to assume that people that say they are Kinsey 0's or 6's are just not being honest with themselves -which I recognize is not a fair assumption, but I can't seem to stop viewing this through the filter of my own experiences.

Bringing this back to fandom:
In the modern world, I see a relatively common pattern of bisexual men who are affectionally straight - they enjoy sex with both sexes, but only fall in love with women. From this, I believe that affectional orientation is more influenced by culture than sexual orientation.

In Age of Sail stories, it seems to me that the opposite would likely hold true, at least for sailors. Women and men were socially segregated, and the chances of having meaningful relationships with women would be slim. On the other hand, I can see close male relationships forming easily. As a result, I tend to view the default sexuality for my male characters to be bisexual but affectionally gay.

My recent story "Not Enough" was based on the premise that Will is a Kinsey 0, but affectionally bisexual. But honestly, while I know the other way around exists, I don't really think it is possible to fall in love with someone that you aren't willing to have sex with.

In other words, I see affectional orientation as a subset of sexual orientation.

So the question is, how valid are my underlying assumptions? Please feel free to pick apart my reasoning.

It seems to me that nearly every Jack/whoever pairing has the "sexual harassment" problem. Jack is Captain; his word is law. If you are on the Black Pearl with him, he is your boss- and if you are screwing him, that can lead to problems.

I've been in nearly every sexual harasment scenario in my life; slimy boss hitting on me, dating a subordinate that can't keep work and personal life separate (and dated one that could, bless his heart) and I've represented harassers and harassees. But I've never seen a good resolution. I certainly can't see one where you are trapped on a boat. Even a fully consentual relationship will cause friction with everyone else. And I don't picture any relationship between a ship's captain and an inexperienced, young and pretty sailor as fully consentual - the power balance is just too great. So how can I give Jack and Will a happily ever after?

So, I am starting this journal with the purpose of reading and writing fanfiction, so I thought some opening thoughts were in order.


What I Read:

Pirates-I like Jack/Will/Elizabeth and Jack/Will. If the author is good, I will read other pairings, though.

In the Buffyverse, there are almost no good writers still writing Spuffy anymore, so I've jumped ship to Spander. Spangel can be okay, but I like Spike to be more dominant, and Angel just doesn't seem like he'd ever allow that.

eta: As of March 2007, I have been reading less of Pirate stuff, because I am avoiding spoilers, and I don't want to get too worked up before AWE comes out in May.  Right now, I'm reading mostly Star Wars: Qui-Gon/Obi-Wan and Harry Potter: Percy Weasley/Oliver Wood (which can be blamed completely on eloiselovelace )

What I Write

I have so far written only Pirate fic, mostly Jack/Will, with one long Jack/Will/Elizabeth and one Tia Dalma/Bootstrap little piece (for a challenge request, not because I'm into the pairing).  I hesitate to say what kind of things I do and don't write, because it is sure to bite me on the butt in the near future, but generally my writing is porny, with little plot or other redeeming characteristics, and with a focus on power and power imbalances.
(end of March 2007 edits)


Content: