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

III. Claims of Actors Protesting Slash Fan Art

As with most controversial art forms, slash art has received its fair share of criticism. Most of this has come from within the fandom, as slash is only just now beginning to attract attention outside the bounds of fandom, thanks to the Internet. A major concern of critics has been their fear of the reactions of the actors who play the characters. A Blake’s 7 actor who found out about it went on a campaign to have the writers and artists blackballed from fan events. However, his quest backfired as they were all well-known and popular within the community and the debacle ended with several fans dropping the show in protest over his actions.¹ Other actors find it amusing. Michael Shanks, who plays Daniel on Stargate SG-1, quipped when asked about Jack/Daniel fiction, “Whatever floats your boat; whatever stirs your coffee.”²

Shanks was less amused, however, when a fan presented him with a manipulated picture of Jack and Daniel kissing. He was very flustered, and unsure of what to do with this manipulation of his image. His wife, however, had no such reservations and ripped it up that night, a fact he confessed at the Q&A panel the next day when asked. The reaction in the fan community was negative—not for Michael, but for the fan who brought this side of fandom to the actor’s attention, displaying the split in the netiquette of the fandom.

When asked about the way actors would/should react to slash art, fans had a variety of responses:

I like manips. A lot. I found a RayK/Fraser manip that I absolutely adore and I didn’t think anything of it. I mean, they aren’t real people to me. Obviously the characters aren’t real people, but even the actors aren’t real to me. They’re famous men I will likely never meet, so they’re not real or tangible. I think that might be the reason I thought the manip was okay. However, if it was me, I would react much differently. If I, by some weird miracle, became famous enough to warrant slashy manips of myself, I would find it weird. I seriously doubt I would freak out and blacklist anyone (most likely because I’m in the slash community as it is) but I do think I would find it a little weird. I don’t know that I would understand why anyone would even want to see a manip like that of me.³

I would expect if the actors who play the characters in question were to stumble on it, many of them would not necessarily be happy about it, but, I think as long as it is made clear that these are manipulations and meant in a fictional sense that the actor should not really…complain(?). Okay, they could complain, but what I mean is…they should understand that it’s not meant in any disrespectful way, and that it’s not speaking of them.⁴

If someone from the other side of the fence had stumbled upon my work? I’d hope that they’d understand that the pics were just for entertainment and fulfilling personal challenges. One major reason why I started creating manips was to improve my skills with a photo editing program. I’d love to believe that they could see the humor behind it, but in reality that’s more than likely asking for too much. But…there are some pics out there that are notably cringe worthy from most perspectives. If I have a hard time accepting them from the sidelines, it’s kinda difficult to see the man/woman who owns the face in question to be lighthearted about it.⁵

The general feeling seems to be that most fans would not want the actors to stumble on their works. They recognize that if it were their images being portrayed in this manner, they would be at least mildly embarrassed, if not horrified. However, at this point in time, no legal actions have been commenced against fan artists. Is there anything a celebrity can do, or is the price of fame and a free society?

A. Right of Publicity

The state law created right of publicity seems the likeliest method under which injured celebrities could recover against fans. The right of publicity is a right which protects against the unauthorized use of a person’s image or identity in a way that could cause harm to its commercial value.⁶ It grew out of the right of privacy tort’s fourth potential invasion: the appropriation of the plaintiff’s name and likeness.⁷ The right is also justified under Locke’s theory of property—the plaintiff celebrity has invested a great deal of time, energy and work into creating his or her image. Therefore a property right should accrue in that image.⁸

In 1992, the Ninth Circuit decided one of the landmark right of publicity cases, White v. Samsung.⁹ In a commercial, Samsung used a robot which was dressed and posed like Vanna White to advertise VCRs. The court held that the mere evocation of Ms. White’s identity was an infringement on her right of publicity. The decision had the effect of sweeping non-deceptive imitations and parodies under the right of publicity.¹⁰ This stringent holding would seem to bode well for actors seeking to limit the creation, or at least dissemination of slash art.

Because slash art uses the actor’s image in an unauthorized fashion, at first glance it seems that the right of publicity would give the actor the right to control the works of art. However, the right of publicity, being a property right, is not one based in protecting the celebrity from criticism or commentary. Indeed, the three main rationales for the right of publicity in no way implicate slash art. The first rationale is one of a moral right. Celebrities should be able to reap the fruits of their labors and others should not be able to be unjustly enriched by appropriating the celebrity’s image.¹¹ Slash art is a non-commercial activity. Fans do not charge to view their work. It is freely available on the internet. No profit is made, and arguably, no profit is lost.

The second theory for maintaining a right of publicity is also an economic one—similar to the reason for copyright law, it is thought that to protect the value of the celebrity’s image will encourage the celebrity’s creative efforts.¹² Again, because slash art is a form of fan activity, it is not something that should discourage the creation of new works. Indeed, fan activity can sustain a celebrity’s popularity long past when their creative efforts have stopped airing on the television, keeping an active fan base for that can help an actor as he moves to a new series or movie.

The third theory for sustaining a right of publicity is to protect the consumer from advertising deception—believing a celebrity is endorsing a product when he or she is not.¹³ This theory is completely inapplicable to fan art, as there are no products being advertised and the artwork is not targeted towards consumers.

These three theories are the governmental interest in limiting speech that appropriates the name or likeness of a celebrity. In order for protected speech, like artwork, to be limited, the regulation (right of publicity law) must be narrowly tailored to at least meet an important government interest. While the government of several state’s has declared that protecting a celebrity’s image is an important interest, worthy of an Intellectual Property law, the interests it is designed to protect are not those implicated by slash art, and therefore the right of publicity, as drawn should not give an actor a cause of action against the artists. “The right of publicity has not been held to outweigh the value of free expression.”¹⁴ Indeed, the use of a celebrity’s image for commentary or entertainment purposes (such as parodies done on Saturday Night Live) is specifically excluded from the right of publicity in the Restatement of Unfair Competition.¹⁵ As public figures can be caricatured and lampooned, artists should also be allowed to use their images to create new works of art as a form of expression. By entering public life, celebrities have allowed their images to become symbolic within our culture. They are part of the discourse of daily life and they must be willing to have their images used in that discourse.

While there are some arguments espoused by celebrities and legal theorists that celebrities ought to be able to bring a tarnishment claim when their image is used in an unsavory way, at this time there exists no property cause of action for such a claim, and the right of publicity does not cover such actions.¹⁶ If celebrities feel they have been cast in a false light or suffered personally, they may attempt to bring a defamation claim.

B.  Defamation

For a defamation claim to succeed, a plaintiff must establish: 1) a false, defamatory statement concerning him was 2) communicated to a third party with 3) some degree of fault on the part of the defendant and 4) which is actionable without proof of damages, or is shown to have caused special damages.¹⁷ The first question that must be asked is whether slash art is a statement. Referencing Section II-D, it is fair to argue that if art is speech, it can also be a statement.

Is it communicated to a third party? Publishing on the Internet would certainly qualify. Unlike the invasion of privacy, defamation does not require wide publication. The fact that the artwork is disseminated throughout the world via electronic means would certainly meet this prong of the test.

Would the actor need to prove damages? No. If a libelous statement is proven, then damages are presumed. “At common law, any written or printed language which tends to injure one’s reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in pubic esteem or lower him in the confidence of the community is actionable per se.”¹⁸

Is there some degree of fault on the part of the artist? Do they know the statement they are making is false? This element then refers back in with whether or not the statement is defamatory. Defamation is “an invasion of the interest in reputation and good name… (involving) the opinion which others in the community may have, or tend to have, of the plaintiff.”¹⁹

Is the imputation of homosexuality defamatory? Defamation law is concerned with reputation, and as such, what is defamatory changes as society changes. The question becomes whether calling someone gay would injure that person’s reputation in the eyes of “right-minded” individuals. It must be evaluated in terms of the person’s reputation in the community.²⁰ We live in a society sharply divided on the issue of gay rights. Until recently, many courts found that calling someone gay was defamation per se because it implied that they were criminals, in light of then prevalent anti-sodomy laws.²¹ In fact, Nacinovich v. Tullet & Tokyo Forex, Inc., held that cartoons of the plaintiff which depicted him as homosexual were defamatory per se, and negated any parody or caricature defense, saying, in essence, that the mere implication that the plaintiff might be homosexual was sufficiently defamatory.²²

This seems almost directly applicable to slash art, especially as the case was decided just five years ago. However, a great deal has changed in the last five years. Gay rights legislation is sweeping the country, with anti-discrimination laws sweeping the country at the local level, and attitudes about homosexuality changing in the American public. In May 2001, a nation-wide poll revealed that fifty-two percent of Americans believe homosexuality is an acceptable alternative lifestyle. In 1996, that number was only forty-four percent; in 1992 it was thirty-eight percent, and only thirty-four percent in 1982.²³

The Supreme Court’s decision last summer in Lawrence v. Texas, struck another blow to defamation claims for imputations of homosexuality.²⁴ Many courts’ reasoning for holding imputations of homosexuality as defamation per se revolved around anti-sodomy statutes. Reducing the homosexual person to a single sex act, they held that to call someone a homosexual was to call them a criminal, and thus defamatory. Lawrence overruled Bowers v. Hardwick, which held that the Georgia sodomy statute was Constitutional, even when applied to consenting adults acting within the privacy of their own home.²⁵ Texas’ statute criminalized sodomy as a deviate sexual act when performed with a member of the same sex.²⁶ The Court held the statute to be unconstitutional as petitioners were exercising their liberty rights under the Due Process Clause of the Fourteenth Amendment.²⁷ The central holding seemed to be that homosexuals had the right to choose a homosexual lifestyle within their liberty rights, yet the implications of Lawrence are yet to be fully felt. Whether there is a constitutional right to engage in homosexual sodomy, or whether the law was struck down because it differentiated between the same acts depending on choice of partners remains an unsettled area of law.²⁸ However, what is clear is that laws which make a homosexual lifestyle illegal are no longer constitutional. If homosexuals are no longer “criminals,” then a major justification for the imputation of homosexuality being defamatory per se is now gone.

Of course, homosexuals are still banned from marrying in most states, and states that do not wish to allow gay marriage may reject their full faith and credit responsibilities under the Federal Defense of Marriage Act.²⁹ The current administration’s hostility to homosexuals has been made evident by their support of the Federal Marriage Amendment.³⁰ The proposed Amendment was favored by 67% of Americans, according to a poll conducted in May 2004.³¹ Anti-gay hate crimes represent a significant proportion of reported hate crimes in the United States.³² Homosexuals are not protected under Title VII or the Fair Housing Act.³³ This reflects that the still strong bias against homosexuality on the part of the American people and government. Whether there have been enough strides forward to say that an imputation of homosexuality is defamatory per se is a question to be decided by the courts, but while Lawrence may have struck a blow for a change in course, gay rights legislation still has a long way to go.

What does this say about slash art, however? What is the statement being made by slash art? Is it imputing homosexuality to the actor or to the character? A cartoon clearly depicting the actor as homosexual could possibly be considered defamatory. However, because the slash artwork is based on the television series, movie, or book, the statement being made concerns the subtextual implications and nuances that the artist sees in the source product. The imputation of homosexuality is not being made about the actor, but about the character.

Defamation is a claim for real, live persons designed to protect reputation.³⁴ Fictional characters are not real persons, although their visual representations may use the image of their portrayers. Most slash art is easily distinguishable as being based on a fictional source product. When Viggo Mortenson and Orlando Bloom’s images are used to portray Aragorn and Legolas in a homosexual situation, there are clear indicators that the work is based on Lord of the Rings. Legolas’ ears are pointed, as befits an elf. Aragorn’s clothing and weaponry clearly signals that this is “Aragorn” not Viggo. Most slash art is searchable under the name of the fandom, not the name of the actor. It is not just randomly out there when you click to see a picture of Richard Dean Anderson.

Someone looking to find the artwork would have to know where to look, or how to look. To find the art, inevitably the word “slash” must be included in the search. Furthermore, when the site is accessed, there are usually disclaimers stating that these are based upon works of fiction and are the artist’s interpretation. There are warnings indicating that the material will contain images that are homoerotic in nature. There are age warnings for the NC-17 artwork. To get to a piece of art that the celebrity might find offensive, a searcher must usually go through several deliberate steps. This is not comparable to the advent of “celebrity porn,” as instanced by Alyssa Milano’s brother going to look for information about his sister online and stumbling across digitally altered pictures of her naked.³⁵

IV. Conclusion

Given all of these factors, it is unlikely that celebrities would be able to recover against fan artists using their image in slash art. While they may be embarrassed by the depiction, celebrities are public figures who have put themselves into the limelight. This action carries risk in it. When you make your image part of the popular culture, you lose some control over how others will view and interpret your work. When you further separate the actor from his character, the actor loses more control. To say that Tyler Durbin in Fight Club is an anarchist and sociopath is not to impute the same qualities to Brad Pitt. Likewise, to say that Aragorn was gay and to picture him thus is not to impute homosexuality to Viggo Mortenson.

Slash artists are expressing a valid interpretation of cultural source products. Their artwork, even when viewed as offensive by some, is speech which sets forth a politically subversive message calling into question they way our society views gender dichotomies, sexuality, and the ownership of our shared culture. Their work is non-commercial, and does no definable harm to a celebrity’s person or property. By reworking the source product and the image of the character that they are sold, fan artists seek to reclaim their voice in ongoing social discourse, and this voice should be protected under the First Amendment freedom of expression.