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

I. Introduction

In the world of the mass media, a new culture has been developing over the past few decades. As television has become the main source of entertainment in our society, television shows have garnered more and more attention and passion from their viewers. Most people will admit to a favorite show or two, often times with a blush because, despite the fact that most of society watches, television sometimes still feels like our dirty little secret. The internet, however, has provided a place for fans to gather, semi-anonymously to discuss the latest episode of their favorite show, ponder plot arcs, and create derivative works based on their favored source product.

The advent of fandoms—avid followers of a particular entertainment product—is not a new phenomenon. Charles Dickens had avid fans, waiting for each of his next serial novels. They would write to him in between publication, giving feedback and evidence strongly suggests that he routinely revised his plans for these novels based on the feedback.1 Lewis Carroll had even more active fans:

Between 1869 and 1930, some 200 writers [that we know about] imitated, revised or parodied Lewis Carroll’s Alice in Wonderland. Some sent Carroll’s plucky protagonist into other imaginary lands; others sent different protagonists to encounter the Mad Hatter or the Cheshire Cat. Some promoted conservative agendas, others advocated feminism or socialism. Among Carroll’s imitators were literary figures such as Christina Rosetti, Frances Hodgsen Burnett and E. Nesbit. Literary critic Carloyn Sigler argues that Alice parodies contributed considerably to Carroll’s subsequent reputation.2

Musical artists such as Liberace, Elvis, and the Beatles were engendering devotion in fans in the middle of the last century. Fandom in and of itself is nothing new. However, the world wide connections that have sprung up around it and the mass production and availability of its product have become almost overwhelming with the advent of television and later the internet.

Fan fiction and fan art draw on a tradition of storytelling that stretches backwards through time. “For most of human history, the storyteller was the inheritor and protector of a shared cultural tradition. Homer took plots, characters, stories, well known to his audiences, and retold them in particularly vivid terms.”3 Fan creations continue this tradition into the digital millennium. The main difference is that our shared culture is a media culture, one in which the characters, plots and stories we know are those of our favorite TV shows and movies.4 As distinct, recognizable mediums, fan fiction and fan art really started with the fanzines of Star Trek in the 1960s.5 These fanzines were written and published by fans, illustrated by fan art, and then distributed through the mail, flying under both the corporate radar and the attention of the actors who portrayed the characters written about.6

Fandom in its current incarnation brings people with similar interests together in a form of community not seen before. The advent of the internet has made this community larger as more people have access. However very little that is on the internet now was not available before. Fan fiction, fan art, filks (songs written about television shows, movies, and/or characters) and other creative fan endeavors existed prior to the internet, but the wide dissemination they have achieved via electronic and digital means is unlike anything previously seen.

This wide dissemination has left fans open to legal actions that were rarely at issue in the past. Taking a small section of fan activity, arguably the most controversial, this paper attempts to explore possible legal issues surrounding fan activity. This small section is what is known as “slash.” The term comes from the stories and art first created in the Star Trek fandom depicting Kirk and Spock in a homoerotic relationship. The stories and pictures were denoted as Kirk/Spock, and the “/” became the term for the entire genre.

Briefly, in this genre, fans take two characters, usually male, and portray them in a homoerotic relationship. When the genre takes a visual form, this usually means incorporating the images of the actors who portray the characters and either sketching them or manipulating their photos so that the homosexual relationship is visually portrayed. The artwork can range from what would be considered PG to truly erotic work that would receive a NC-17 rating. Very rarely is the artwork pornographic, however, as it seeks to portray a relationship, and often is an illustration for a story the artist has either written or read.

As with most fan creations, some of the artwork is stunningly done. Other works are very poor and barely resemble the actors. These depictions, often unrecognizable, are not those that are likely to be subject to litigation. The works that are very good, however, present a challenge to the actors and actresses whose images are thus used. The photo manipulations can be done so well as to make it look as if the actor posed for the photo. The drawings, often digitally done with photographs as their bases, also end up being a very clear depiction of the actor, once again engaging in homosexual behavior.

Some actors do not have a problem with this, clearly delineating between character and self. What this paper seeks to explore, however, is what actions are there for actors who do object to their image being used this way? Three possible legal remedies seem possible: suits for defamation, invasion of privacy as seen through a misappropriation of the actor’s image under a right of publicity. However, each of these actions implicates the artists’ First Amendment rights. While it is private actors bringing suit, rather than the government, the laws they are bringing the actions under necessarily restrict and implicate the artist and writer’s First Amendment freedom of speech. As slash is arguably subversive political speech, the balance that courts have struck in previous defamation, invasion of privacy and right of publicity cases must be rethought to encompass this art form that is growing in prevalence.7

This paper will first address fan creations as speech, looking at the semiotic meanings fan make and create out of the source product, arguing that when this meaning is then reinterpreted into an art form and shared with other fans, it should be seen as political speech and given high First Amendment protection. Sections III will deal with each claim, the elements of the action, and the balancing to be done between the artists’ First Amendment rights and the actors’ rights in their image.

Much research has been done of the phenomena of fan fiction, but little has been done on the visual representations of these stories. However, as the motives behind the two forms of expression are the same, with artists choosing their medium based on their own particular talents, the sociological research done on fan fiction is equally applicable to fan art. These sociological constructs are essential for an understanding of the ideas seeking to be expressed through the art forms, and the heightened protection they should be granted.

While the art forms themselves are not new, their widespread dissemination and storage on the Internet has made them accessible to a much wider audience, globally, than ever before. They are transmitted and stored digitally and available to anyone with a connection at the click of a button. The very nature of the internet galleries, archives, and newsgroups are what threaten the actor’s control over their images. Their concerns are not minor, but an understanding of the reasons behind the art work and the inherently political nature of it argue for a broader protection for the artists of these new visions.

For purposes of this paper, the following definitions apply: Fan fiction—stories, novellas, novels, poems written by fans in which characters from popular TV shows and movies are used in a new plot/scenario crafted by the fan writer; fandom—the particular TV show/movie “universe”: i.e. the Star Trek fandom, the Buffy/Angel fandom, the Stargate SG-1 fandom. Fan art—original works of art, either sketches or photo manipulations which depict scenes with characters in a situation not seen in the source product. Slash—stories or art work that envisions two characters in a homoerotic situation who are not portrayed as such in the source product.


1 Henry Jenkins, “The Poachers and the Stormtroopers,” Speech given at University of Michigan, Spring, 1998, available at, (last accessed December 8, 2004).

2 Henry Jenkins, Digital Land Grab, MIT Alumni Association Mar/Technology Review (March/April 2000) available at


4 Id.

5 Laura Hale, A History of Fan Fiction at Writers University available at (November 2003).

6 Jenkins, supra note 2.

7 Artwork and fiction which use copyrighted images and characters also, of course, could and have led to copyright infringement claims by studios and authors. However, these claims can generally be dealt with under a fair use framework without a Constitutional discussion, as argued in Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 Loy. L.A. Ent. L. Rev. 651 (1997) and my own paper, Fan Fiction as Fair Use, Entertainment Law, December 2003.