Open Discussion of RPS Stories in Light of Heath's Death

[louisev]

I think what was being litigated in the Parks case (above) must have been "Right to publicity" which does pass on to heirs at death.

According to another, more informative article
Fact into Fiction: Using Real Life and Real People in Creative Works
by Linda Heacox

http://www.iwpa.org/reallife0506.html

"Cook points out that only living people can sue for defamation and invasion of privacy. Rights to publicity are another matter.

This is the right of a person to control his name and likeness for commercial purposes. In other words, only the celebrity can profit from his name unless he grants another that right. This right is considered property and passes to heirs when the famous person dies. "

Here is a salient fact about what legal measures determine whether invasion of privacy has occurred:

"Invasion of privacy could also cause an individual to sue a writer who has disclosed something embarrassing that is not of legitimate public concern, Cook said. That is the legal standard, she said-whether or not the disclosure could be seen by a court as being of public interest. "

I am quite certain that private sex habits would not be seen by any court as "legitimate public concerns."

[louisev]

Historical fiction using real people:

On the other hand, says this  article, the field is wide open in historical fiction, as long as the person has no heirs to claim "right to publicity."

http://crofsblogs.typepad.com/fiction/2008/01/historical-fict.html

[mvansand76]

I believe that, if you wonder if writing or reading RPS is wrong or not, all you have to do is imagine that Heath is reading along with you over your shoulder.

[MaineWriter]

I believe that, if you wonder if writing or reading RPS is wrong or not, all you have to do is imagine that Heath is reading along with you over your shoulder.

I agree, Mel, and I didn't ask my question about historical fiction as a way to say I think it is okay to write about Heath, now that's he dead. I don't. I just think it is an interesting question of at what point, if ever, would a well-known person be okay to use as a character in a fictional story? The story I read about Frank Lloyd Wright was very well done, interesting (I learned alot about him I didn't know) and even though it was driven by scandal (he and his mistress left their respective families and ran away together) it was handled in a respectful way. It didn't sully his memory.

I also think that Louise makes a very good point about many of the RPS stories being nothing but masturbatory fantasies. From the little bit I have read (and it is very little) I would agree. Many of the stories are truly tasteless.

Back to my question of time. I think it is a question of how "seared" on our memories the real life person was/is and how long that lasts. For example, I think that a writer would get into trouble with a story about Marilyn Monroe or Elvis Presley. They are just too "real" to people to become characters. (I also think Elvis would bring up the publicity issue that Louise mentioned, since it is very clear his heirs control his name and image and he is a source of ongoing revenue). But what about James Dean? Or going back even further, Rudolph Valentino? They were big stars whose premature deaths shook people up. Could people write about them, now, in 2008?

Someone mentioned (on another board) that RPS is written about the Beatles and I just said "ew." For me, growing up with them at the time I did, they will always be "the Beatles" and any attempt to immortalize them in fiction is just wrong. I will remember them through their music. And I will remember Heath through the legacy he has left us in films and photos.

[mvansand76]

I agree, Mel, and I didn't ask my question about historical fiction as a way to say I think it is okay to write about Heath, now that's he dead. I don't.

Oh no, it wasn't in response to what you were discussing, it was just something that popped up in my mind. 

[el_wing]

I have a few things to say, then I'll go away.

First, on libel. Let's get real. I'm a journalist and I teach journalism. So here goes.

RPS slides along a path that's never been tested as far as libel is concerned. In order for rps or any printed story to be considered libel, it must meet four criteria and all four criteria must be met.

You must also understand that rps is not written as truth. It is fan "fiction" and not truth. This is not a tabloid touting stories as fact.

#1 it must be published. Locked or unlocked, anything on the internet is considered publishing.
#2 person has to be identified. In most cases, actors are identified.
#3 it must show harm. Yes, rps does have actors in sexual situations that aren't real but-- This is where it's sticky-- fanfic is a form of publicity for the entertainer. It's hard to show that this in anyway hurts the actors reputation or career especially since the work is written as "fiction" to begin with.
#4 Fault. This is the whole malice clause. The party has to prove intentional harm or a blatant disregard for harm to that individual. The whole issue of public figure vs private individual comes to play here. Public figures have a much greater burden of proof in this regard. In fan fiction rps, most writers love who they're writing about. They do not intend harm.

Also, Kit Mason, the person writing the article you are using as an example of here: http://www.trickster.org/symposium/symp78.html

She doesn't live in the United States. She's not a lawyer. She doesn't teach law. She's an awesome sci fi writer (she rocks). 



That's subject one.

Subject two.
People who write straight fan fiction have been taken to court by writers, and threatened with law suits by film and tv producers and book author for "borrowing" characters, plot and setting of their work-- that is also a "moral" argument. Most writers don't care or see it as a compliment to their work, but if we are going to address a real legal issue, that is one that would get fan fic writers into court, not whether or not they write rps.

Subject three

I hope Heath is reading over my shoulder, since what I'm writing is very, good and very, tasteful.

[MaineWriter]

el-wing, that link you posted doesn't work. It opens a reply window. Can you tell me what you are trying to point us to?

Thanks,

L

[el_wing]

el-wing, that link you posted doesn't work. It opens a reply window. Can you tell me what you are trying to point us to?

Thanks,

L

Sorry, all better. I fixed it. 

[Marge_Innavera]

I agree, Mel, and I didn't ask my question about historical fiction as a way to say I think it is okay to write about Heath, now that's he dead. I don't. I just think it is an interesting question of at what point, if ever, would a well-known person be okay to use as a character in a fictional story?

The general rule is: after there's no longer anyone alive who remembers the person or who's old enough to have met them, even as a child meeting someone elderly. I'm not aware of any legal standard that exists, but that's the rough-cut rule about appropriateness.

But that's only general, depending on how the person was viewed in their lifetime. During Jesse James' lifetime, there were RPS stories about himin dozens of magazines and dime novels, though they didn't involve sexual situations.  For a person who was respected as a great artist or great statesman, it's probably longer.

When I first heard about the concept of RPS, frankly my first reaction was that it was distasteful and silly.  Started reading one -- can't even remember which it was now -- but oddly, I couldn't even get interested in it and concluded that my limited time to read BBM fanfic was better spent reading about Ennis, Jack et al.

[ENEN]

Thanks for the general rules about historical fiction Marge! I think the big difference is as you said no one connected to the figure even remotely is still alive. We had slash stories about Heath posted even before he was buried.  It is not only a question about libel or the legality of the situation but the propiety and ethics of it.  Heath Ledger was a very private man so I do not believe for one minute he would be comfortable with these types of stories about him and Jake. I imagine he would wonder why so much creative effort would be wasted on making up tales about him instead of the writers finding their own stories or characters.  I think the best tributes to Heath have been testimonials on what he meant to people and poems  I have seen written about how much he meant to the author. I don't see RPS in that same light.  How many of us after the Pope died wanted to go write a story about him loving and having sex with some other public figure? is that really a natural reaction to grief? Anyone written slash about their own lost loved ones? I think not. And if they have well they really do have issues!