Fan Art

Fan Art
Morality, Legality, and Fictitious Underage Sex
by Irina Lazarevic

Pornography has become a hot topic in recent times, largely due to the newfound proliferation of media. Laws on pornography vary between countries and states, but the general consensus, at least in  the North American legal sphere, is that those involved in production must be consenting adults. Consider, however, this thought experiment: imagine that the sexual content is within the context of a written story, or artwork posted on the Internet. Is anyone being exploited by this, regardless of whether the fictional characters are above the age of fictional consent? In the narrowest sense of no actual persons being involved, the rational conclusion would have to be no. Surprisingly, in many countries such an example would indeed be prone to legal prosecution, in some cases even in the absence of any other offence, because it falls under the umbrella of what is termed “obscene content.” Often, the distinction is arbitrary between what is considered obscene content, and what is permissible.

The issue is a divided and contentious one. For instance, sexual drawings of children were prohibited in the United States by the PROTECT act of 2003, but this ban was subsequently ruled to be unconstitutional by the Supreme Court. In the Netherlands, the law only covers cases involving “realistic images,” but this definition is admittedly hazy. There is the notable exception of countries such as Australia, which specifically outlaw all sexualized depictions of children who are, or even appear to be, below the age of sixteen. Australia is one example of a legal system with a “zero-tolerance policy” towards any (even fictional) sexual content involving minors, in every medium.

In 2008, a legal case was brought to the Australian Supreme Court which involved a cartoon drawn in the style of “The Simpsons” wherein young characters were shown to be engaged in sexual acts. The court upheld a conviction of child pornography, with the judge ruling “In my view, the magistrate was correct in determining that, in respect of both the Commonwealth and the NSW offences, the word ‘person’ included fictional or imaginary characters … the mere fact that the figure depicted departed from a realistic representation in some respects of a human being did not mean that such a figure was not a ‘person’.”1 Is this an instance of governments going too far in their zeal to demonstrate their intolerance of child exploitation, and as a result tightening the boundaries of free artistic expression? Or is it legitimated by fears that being too permissible in their ruling will somehow affect the prosecution of the real abusers?

The question of acceptable content is complicated by the fact that most of the existing legislation, at least outside of Australia, deals specifically with visual material. The situation, therefore, for written fiction (commonly known as fanfiction in the fan community) about underage characters is often much less clear cut. Many critics of fanfiction depicting underage characters in sexual situations believe that it can have the effect of glorifying and even endorsing sexual abuse of young children, and pedophilia. There have also been arguments which posit that tolerating such content within fandom  communities presents an odious image of fandom to the mainstream. Conversely, those who argue for the harmlessness of these fan works stress that fictional characters and drawn art, no matter how offensive to some, cannot cause concrete harm to a living individual. In any case, many web archives of fanfiction wishing to protect themselves legally do not allow any sexual content at all to be posted to their domain. Others may set age limit restrictions on how young it is permissible for characters to be represented in the works that they accept, however these guidelines are often arbitrary, as the legal age of consent varies widely from country to country, even between different states in the United States.

Popular blogging site Livejournal, run by the American-based company Six Apart, caused a stir in 2008 when they deleted, without any warning, a whole host of accounts which were deemed to contain inappropriate material, termed as “drawings and text — that explicitly depicts minors under the age of 18 (real or not) in a graphic sexual context.” This was done in accordance with a newly-instated “zero-tolerance policy” effected in order to eliminate certain categories of posts and behaviours. Alongside material that “encourages or advocates hate crimes, rape, or child abuse or pedophilia,” 2 certain types of fiction are also banned as (allegedly) illegal under U.S. law. This action caused quite a stir in fan communities, who felt both that they had been deprived of an important outlet for creative expression, as well as unfairly lumped in with a vague but disturbing category of criminal offences they were innocent of.

Strictly speaking, fanfiction goes against copyright laws because it makes use of the source material protected as the copyright holder’s intellectual property. However, instances of citing copyright as a justification for legal action are comparatively rare. Perhaps surprisingly, trespassing on intellectual property is very often not the primary concern of litigators or their clients. Many writers or producers of entertainment media are perfectly comfortable with the flourishing of fan works. One prominent example is author of the popular “Harry Potter” series J.K. Rowling, who has openly given her blessing to writers and artists of fan works based on her books. She has stated that she is thrilled to have played a role in inspiring so much creativity and literacy, and is flattered by the fans’ response. 3 She does, however, include the caveat that no one should be making use of her material for profit, and that she would be uncomfortable for any stories that were “obscene.”

This last stipulation seems a valid concern, given that the book series is primarily targeted to children and teenagers, and there is thus a very real possibility that fans of the books could inadvertently stumble across non age-appropriate sexual content when surfing fan sites. In their book Girl Culture: An Encyclopedia, Claudia Mitchell and Jaqueline Reid-Walsh note that “legal action against fanfiction  very often makes reference to its supposed moral threat in terms of promoting pornography and endangering minors.” 4 This quote helps to elucidate the primary concern regarding sexual content in fictional works: the worry is not that minors will be endangered by direct exploitation, but rather through mere contact with what many view as inappropriate material. The question then becomes, who  decides what is appropriate? If the issue is based on a debate over morals, shouldn’t it be left to the discretion of media users, or their guardians, rather than under the jurisdiction of a third party who decides what material is or is not acceptable for the internet?

The illegality of child pornography is contingent on the fact that it is exploitative and a serious form of abuse. In the case of adult themes and representations of sexual acts involving fictional characters,  it would be an invalid argument to say that anyone is being directly harmed. The objection is thus a moral one, which supposes that the material is a corrupting influence on real individuals who access it.  The practice is in fact an entirely victimless one, aside from the purely hypothetical assertion that viewers or readers of fan works will be inspired to act out the depictions. In the end, we must ask  ourselves if fans’ artistic works are indeed a truly a harmless outlet for expression.

1 “Fan History: Shotacon.” Fan History Wiki. 10 Feb. 2009. Web. 30 Sept. 2009. <www.fanhistory.com/wiki/Shotacon>.
2 Wilson, Melissa. “Livejournal Bans Underage Adult Fanfiction.” Firefox News. 19 July 2007. Web. 30 Sept. 2009.
<http://firefox.org/news/articles/511/1/Livejournal-Bans-Underage-Adult-Fanfiction/Page1.html>.
3 Waters, Darren. “Rowling Backs Potter Fanfiction.” BBC NEWS. 27 May 2004. Web. 30 Sept. 2009. <http://news.
bbc.co.uk/2/hi/entertainment/3753001.stm>.
4 Mitchell, Claudia, and Jaqueline Reid-Walsh. Girl Culture: An Encyclopedia. Vol. 1. Westport, CT: Greenwood,
2008.