Boldthrough '07: Uh, we're child molesters? Again?

[kalpurna]

Given Boldthrough '07, I think we should talk about legal issues regarding underage characters. NOTE THAT I AM NOT A LAWYER. Also note that I understand that LJ and SA are private organizations [ETA: and therefore can delete whatever the hell they want, legally], that they are under tremendous pressure, and that the law is kind of confusing

Comments

[ifreet]

Unfortunately, in 1995 the US Congress passed the Child Pornography Prevention Act which moved the question of child porn away from physically protecting actual children to the protection of the idea of children... regardless of whether or not actual children were exploited in the production of the image. For example, under this law a man was taken to court for pasting a photo of a child's face on a photo of a naked adult woman (I can't imagine that it looked particularly realistic). The stated reason he was acquitted was that the judge 'could not determine beyond a reasonable doubt that the face in the picture was of a child under 18' - not that the image as a whole was an obvious and not-directly-child-endangering fake. (From here.)

The exact wording of the act unfortunately does not help (emphasis mine):
Under this bill, any visual depiction, such as a photograph, film, videotape or computer image, which is produced by any means, including electronically by computer, of sexually explicit conduct will be classified as child

[kalpurna]

Well, CPPA was struck down in 2002, in Ashcroft v. Free Speech Coalition, for being unconstitutionally broad. The judges observed that there was a ton of legitimate art that would be not okay by those standards. (COPA, which was similarly over-reaching and free-speech-impinging, was also struck down, more recently.) I'm not absolutely, 100% positive, but I'm fairly sure that the PROTECT Act of 2003 and this code represent the latest word on the subject, and those only prohibit images that are either real abuse, or indistinguishable from real abuse.

the term "indistinguishable" used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.So while there are certainly a lot of people trying to move us toward thoughtcrimes, we're not

[ifreet]

Your Google-Fu is the greatest! *bows*

... so that brings us back to the Miller Test. Which is kind of subjective - prurient interest? Um, yeah, that's why I READ erotica as well as the occasional romance novel! - but 6A/LJ could be upfront about what their community standards are going to be.

I think the test case for fanworks is likely to be something that leaves a good number of fans themselves uncomfortable. Because that's what a copyright holder is more likely to win on. But I don't think a small claims case is likely to attract the attention of the pertinent copyright holder (or for that matter the local prosecutor), so the odds of becoming that test case don't seem significantly higher than posting openly on the internet. I suppose 6A/LJ might intentionally try to get their attention, though.

I hate the leaving option. But at least now I'm set up for it.

[kalpurna]

Ahaha, thank you! *g*

Yeah, you know, it IS pretty subjective - but the way the courts have applied it, which matters at least as much as the actual law, is incredibly liberal. No text, under Miller, has EVER been declared obscene, and while I'm not sure of the status of art, I'd guess that it would be extraordinarily difficult, if not impossible, to declare any even remotely creative work to be obscene under US laws. [One of] the [many] thing[s] that so deeply frustrates me about LJ is that they're acting as if that rule exists to be applied based on personal, subjective judgement, and it just doesn't. That's not how the law WORKS. If they're banning things based on tastelessness, okay, fine - that's their right. But don't pretend it's a legal decision, because it isn't, and that's dishonest

[rubymiene]

I actually think copyright/trademark would be rather difficult to apply to fanart (vs fanfic). You can't copyright 'young guy with short black hair and glasses' or 'middle age guy with shoulder-length black hair and hooked nose'. Trademark is even more difficult to pursue because it has to be commercial.
Not to mention, LJ doesn't own the copyrights/trademarks, WB does, and they've avoided that can of worms. I just don't see them jumping into this, because not only would it piss of fandom, but it would then come out that they've known about and allowed this for years.
Considering Pond's work didn't include any underage people, I don't know if you can get a better fact pattern.