Slash Art and Fiction: Defamation, Invasion of Privacy, or Legitimate Art? – Part II

II. Fan Creations as Speech

A. The Way Fans “Read”

The ability to transform personal reaction into social interaction, spectacular culture into participatory culture, is one of the central characteristics of fandom. One becomes a fan not by being a regular viewer of a particular program but by translating that viewing into some sort of cultural activity, by sharing feelings and thoughts about the program content with friends, by joining a community of fans who share common interests. For fans, consumption sparks production, reading generates writing, until the terms seem logically inseparable.¹

Human creativity, storytelling and art have historically borrowed from what came before to tell stories within a common discourse. The common discourse and culture of today’s society, for better or worse, is the media.² The advent of media culture has brought to the forefront the controversial figure—the media fan. Most people have a favorite show, a favorite actor. However, only a relative few are willing to classify themselves as a fan. This is due, in large part, to media mischaracterization of the very people who keep money in the stars’ pockets.

Fandom is often explained by those who do not understand in terms of “repetition compulsion, infantile regression, commodity fetishism, nostalgic complacency and future shock.”³ However, recent sociological studies of fans have shown a community of great depth, intelligence, creativity, productivity and compassion.⁴ Much of the academic disdain for fans comes from an aesthetic distaste for those who get too close to the texts that they read.⁵ “Rejecting aesthetic distance, fans passionately embrace favored texts and attempt to integrate media representations within their own social experience.”⁶ Previous literature about fans tends to stress the discontinuity of modern society and posit that fandom is a refuge for the maladjusted and makes up for what modern culture lacks.

However, Joli Jenson proposes that the real reason fans are looked down on is because of cultural snobbery and valuation.⁷ Obsession is obsession, no matter what it is directed at, but the James Joyce scholar who spends hours analyzing one paragraph of Ulysses is considered a serious, passionate scholar, while the fan who spends hours analyzing the implications of the arc of a storyline on a television show is a maladjusted loner.⁸

Everyone has deep, personal interests that they devote themselves, their time and their money to. The construct that sees fandom as a type of pathology is seen as offensive and pejorative when applied to “us.”⁹ Those who dismiss fandom as immature fetishism are missing the point. “What it means to be a fan should be explored in relation to the larger question of what it means to desire, cherish, seek, long, admire, envy, celebrate, protect, ally with others.”¹⁰ These questions of self are at the very core of artistic self-expression and political statements.

Unlike the general media image of fans as mindless consumers, most fans are actually active participants with the texts they choose to engage. The pleasure of reading comes from the semiotic meanings we make as we read. Different texts can be read many different ways—Joseph Conrad’s Heart of Darkness is one example. Literary theorists and critics have read the novel from a multitude of semiotic perspectives—depending on their academic bent, critics have read the novel as an exploration into the darkness of man’s soul, a denouncement of imperialism, a call for racial equality, or a rape of the feminine represented by the river that flows through the Congo.¹¹ That Conrad had all of these interpretations in mind when he penned the novel is unlikely. Instead, each reader brings his or her own way of making meaning to the text and thus it gains its significance in the minds of its readers.

In the same way, “all popular audiences engage in varying degrees of semiotic productivity, producing meanings and pleasures that pertain to their social situation out of the products of the culture industries.”¹² Fans read the texts of their favorite television shows and movies in the same way that English professors read novels. They create their own “canon” of shows, often rejecting later versions or rewrites.¹³ Fans use the same criteria to judge popular culture that is used to judge “high” culture: complexity, subtlety, consistency of plot and characterization, depth of exploration and social relevancy.¹⁴

Taking these cultural products, fans then rework them to emphasize the meanings they make from them. They take the normal reactions of most audience members—the asking “what if”—and they make art from it.

B. The Way Fans Create

Thus, fandom is a mode of reception: conscious selection to watch (“read”) a show (text) faithfully from week to week; rereading through reruns, video archiving, or buying the DVDs; absorbing the text and then translating it into other types of cultural and social activity—making meaning from it, not just transient comprehension. From this making meaning, many fans go on to produce new texts.¹⁵ Fan art is a particular form of fan activity through which fans inject their own semiotic readings onto texts that are seen by others as commercially produced commodities. “For its practitioners, a TV show and its characters are but the starting point for new flights of literary invention — conflicts, romances, whole storylines that the series’ actual creative team never dreamed of.”¹⁶ A fan artist takes these literary inventions, these new storylines, and works to portray them through a visual medium.

Interestingly, most fan artists and creators are women. The most prolific fandoms are those that fall within the action/adventure and science fiction genres—those genres typically dominated by men and whose shows address masculine concerns. To accommodate the social experiences and meet the needs of women, these texts need to be reworked.¹⁷ Women are socialized to accept male texts—to go see the horror flick because their boyfriends want to see it; to watch the cop show because that is what their husbands want to see. Therefore they find meaning on the periphery—they imagine the characters’ lives outside of the textual narrative.¹⁸

“As fans attempt to reconstruct the feminine countertexts that exist on the margins of the original series episodes, they, in the process, refocus the series around traditional feminine and contemporary feminist concerns, around sexuality and gender politics, around religion, family, marriage, and romance.”¹⁹ Much of fandom shifts the focus from the events of the story as given to the interpersonal relationships of the characters, injecting in marginalized attitudes and focusing on the subtext seen in the interplay between characters, text and self.

Henry Jenkins posits that, “organized fandom is, perhaps first and foremost, an institution of theory and criticism, a semi-structured space where competing interpretations and evaluations of common tests are proposed, debated, and negotiated and where readers speculate about the nature of the mass media and their own relationship to it.”²⁰ Fan critics “pull characters and narrative issues from the margins; they focus on details that are excessive or peripheral to the primary plots but gain significance within the fan’s own conception of the series.”²¹ Fan creators do not just reproduce the text so much “as they rework and rewrite it, repairing or dismissing unsatisfying aspects, developing interests not sufficiently explored.”²² Slash is by far the most daring of the ways this is done. It explores erotic aspects of the text which could not be on network television—taking homosocial friendships and moving them along a continuum to explore homoerotic relationships.²³

C. Slash

Slash is a wonderfully subversive voice whispering or shouting around the edges and into the cracks of mainstream culture. It abounds in unconventional thinking. It’s fraught with danger for the status quo, filled with temptingly perilous notions of self-determination and successful defiance of social norms.²⁴

Slash is the most controversial form of fan art, as it takes normally straight characters and places them in homosexual situations that their creators never envisioned. The fan community is divided on the issue—some feel that it is simply not something the characters would ever do.²⁵ However, those who object to slash within the community often object quietly because the fan community is one that operates on a basis of acceptance of difference. Fans are drawn to the community, in part, because of this freedom from censure and discrimination, so critics of the genre are careful to couch their discomfort in terms of a personal preference, not a censure of the community.²⁶ In the past several years, however, slash has become the most popular form of fan fiction and fan art and can be found in most internet archives.

Why slash? What is its appeal? Like other forms of fan fiction, it is often a form of textual commentary. The friendship, the homosocial desire or bond is there in the original text. Society recognizes a continuum between female friendships and lesbian relationships, and society is comfortable with that. However, in a patriarchal society, there are strict boundaries about what is acceptable in male friendships.²⁷ Slash breaks those boundaries by taking male friendships and moving them down the continuum until the characters are lovers.

Thus, slash “throws conventional notions of masculinity into crisis by removing the barriers blocking the realization of homosocial desire; slash unmasks the erotics of male friendship, confronting the fears keeping men from achieving intimacy.”²⁸ The focus is on a relationship that is mutual and equal—something that still seems unlikely with male/female characters. Slash allows fans to explore what love between equals would be like.²⁹

“Slash is not so much a genre about sex [a lot of slash stories do not have any sexual content, but are about the difficulties of a homosexual relationship in a heterosexual world] as it is a genre about the limitation of traditional masculinity and about reconfiguring the male identity.”³⁰ On a socio-political level, slash has opened doors and channels of discussion and debate between straight, lesbian and bi-sexual women and men about the politics of sexuality and it has become a platform for gay rights within the science fiction community.³¹ Star Trek slash, which Paramount tolerates without much interference, has given the gay community a place to launch their campaign for a gay character on one of the shows. Despite touting itself as socially progressive, the franchise has repeatedly refused to truly explore alternative sexualities for its characters.³²

Slash art flows from the same principles as slash fan fiction. Artists are seeking to express the subtextual relationship they see between the characters in a visual form. These images are not available in the source product, and therefore must be created by the artist:

As far as why I do manips at all, generally it’s because there aren’t pictures out there of the actor/character that show what they might look like in a certain place/situation/whatever. So it’s nice to play with it a bit, to give some kind of idea what it might look like. Kind of like this pic of Aidan and Wes Janson. [giving a link to an example of a domestic scene, featuring two actors/characters having coffee in a kitchen]. It would never actually happen (probably) that you’d have pic[tures]s of Wes Bentley and Colin Farrell hanging out in the kitchen, but with a manip, you’ve got cute domesticity with Wes and Aidan… And then you have the Duncan/Methos [art]. Where else will you see them cuddling? Certainly not in pictures of Peter [Wingfield] and Adrian [Paul]. Manips allow us to see some of the situations we put characters in actually come to “life” so to speak, and not just in our heads or through fic. And then, we can share them with others.³³

Just as fan fiction seeks to fill in the gaps left by the text, fan art seeks to fill in the visual gaps in slash fiction. The images slash artists imagine do not exist. There are no visual representations of the text turned upside down. They must be created.

Most slash art is non-pornographic in nature, so a discussion of pornography as speech is not warranted. Indeed, most would not even be classified as sexually explicit. Most often the artwork depicts the relational aspects of the characters. It is clearly a homoerotic relationship. But the artwork varies over an entire range of activities, often consisting of images of the actors kissing, hugging, cuddling, scenes of domestic tranquility. Erotic work of characters engaged in sexual acts are also often done, of course, but even these inevitably are within the bounds of good taste and similar to other erotic works that have received full protection.³⁴ Rarely, if ever, are genetalia portrayed, or any graphic depiction of a sexual act. Instead, they are softer, more suggestive, with a focus on relationship and exploration that their fictional counterparts embrace.

Slash fan fiction mainly implicates the rights of the copyright holders. However, when the world of slash art is entered, the more immediate concern is that of the actors whose images are used to create these works of art. A story about “Jack” and “Daniel” in a relationship has no real potential to embarrass or harm a reasonable celebrity. The works are clearly fictional. However, fan art takes the genre a step closer to the line. When actual images of the celebrities are used to create visual depictions of the character’s relationship, celebrities are potentially exposed to public and private embarrassment, image tarnishment, and dismay.

D. Art as Speech

People most immediately associate the function of art with the creation of beauty or elevation of the senses. However, art also functions to challenge and, at times, attack the establishment, its culture, its values, and its laws.³⁵

As completely original art has served as a challenge to the establishment and accepted culture, so slash fan art stands as a challenge to the established media culture that has become our modern culture. The use of pop culture icons in art is nothing new. Andy Warhol, a “legitimate artist”³⁶ uses Campbell’s soup cans and John Wayne as his inspiration. Other artists also draw on popular culture for their inspiration, and their right to do so often comes into direct conflict with legal schemes in place to protect culture.³⁷ As such, judges have been forced to balance artist’s First Amendment rights with these competing legal interests set up often by intellectual property laws.³⁸

The First Amendment of the United States Constitution provides: “”Congress shall make no law… abridging the freedom of speech.”³⁹ The privileges and immunities clause of the 14th Amendment makes the First Amendment applicable to the states.⁴⁰ However, laws at both the national and state level regularly seek to abridge expression. The state-created right of publicity (statutory in California),⁴¹ the Lanham Act,⁴² and the common law torts of defamation and invasion of privacy all fall under this rubric.

“Traditional first amendment theory presents a hierarchy of constitutionally protected speech.”⁴³ Political speech is usually given greatest degree of constitutional protection while the level given to other forms of speech, including artistic expression, is determined by how closely it resembles the favored political speech.⁴⁴ Art is often the means through which people express themselves, however, and this disfavor is sometimes puzzling. Artists present a worldview, expressing political and social ideas through their work, making statements about values, ideology, culture and our future.

Art, however, is often subjective, and political and public meanings can be lost. However, less free societies than America’s have recognized the political importance of art. Marx argued that art should only serve to reinforce socialist ideals, recognizing both the cognitive and emotional impact of art. Art which is nonrepresentational of these ideas is considered dangerous.⁴⁵

Perhaps the best theory under which the art that fans create should be afforded First Amendment protections is that of Alexander Meiklejohn. While Meiklejohn’s theory gives primacy to political expression, artistic expression is given strong protection when it leads to discussion of our values and political ideas:

Literature and the arts must be protected by the First Amendment. They lead the way toward sensitive and informed appreciation and response to the values out of which the riches of the general welfare are created…
[T]here are many forms of thought and expression within the range of human communications from which the voter derives the knowledge, intelligence, sensitivity to human values: the capacity for sane and objective judgment which, so far as possible, a ballot should express.⁴⁶

Because, at its core, slash art seeks to make a cultural statement, often calling for a normalization of homosexual lifestyles, its views can be seen as inherently political and thus subject to First Amendment protection. The Supreme Court has further noted that artistic expressions like those in fan art are protected as well: “Entertainment, as well as political and ideological speech is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee.”⁴⁷

Most of the case law surrounding artistic expression has centered on that which seeks to make social or political commentary, like slash art. In Sefick v. City of Chicago, the artist, John Sefick, created sculptures which satirized the mayor and his wife. The Court held that this was protectible expression.⁴⁸ Even artwork of a far more sexually explicit nature than slash fan art has been afforded First Amendment protection. In United States ex. Rel. Radich v. Criminal Court of New York, artist Mark Morrel’s constructions of “a flag stuffed into the shape of a six foot human hanged by a yellow rope noose and an erect penis wrapped in an American flag protruding from the vertical standard” were held to be protectible expression.⁴⁹ The important question asked is “whether an intent to convey a particular message was present and the likelihood was great that the message would be understood by those who viewed it.”⁵⁰ As slash art is such that it works to bring a community together which expresses culturally subversive ideas, the answer to this question is yes.

When First Amendment rights come into conflict with other laws, a balancing test must be performed by the courts. However this is not always easy. The Supreme Court has acknowledged “the problem of applying broad principles of the First Amendment to unique forms of expression,” and the court has stated that “each method of communication is a law unto itself and that the law must reflect the different natures, values, abuses and dangers of each method.”⁵¹ The analysis has often broken down to whether the regulation on speech is content based or content neutral.⁵² The Intellectual Property and tort laws under which actors could conceivably bring claims are all content-based as they only are triggered by the images used to create the artwork. While all of these laws have themselves withstood Constitutional challenge, this paper argues that the laws, while perhaps valid in and of themselves, are not able to maintaining a claim against the fan artist because of the heightened protection that should be given socio-political speech.

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