Former CYD regular contributor The New Meat examines some of the furry favorite 'e-lawsuit' threats, from copyright violation to 'emotional injury'. Despite being written in early 2004, it remains just as relevant six years later.
Thursday, March 18. 2004
Please Cease and Desist RAPING MY SOUL
Please Cease and Desist RAPING MY SOUL
by The New Meat
The only thing funnier than angry furries are angry furries threatening legal action. Whenever a furry has been crossed, it's one of the first things he does, since, as you well know, all crimes pale in comparison to ART THEFT.(1)
Of course, 90% of all legal threats are little more than fluff. After firing off that first angry letter, most people will eventually calm down enough to realize that, in the off chance that they actually do have a winnable case, they don't have the time, patience or resources to see it through. Furries, possessing even less follow-through than the average American, probably present an even smaller threat. Still, they are annoying, and their persistence in writing letters might frighten the more skittish HYOOMANS into acquiescing to their demands.
That's always sad, because whenever someone takes down a furry parody site or stops photoshopping Frostfang into "MONKEY HATE CLEAN" pics a fairy loses its wings. Also, the world loses a little bit of comedy. But, with just the tiniest smidgen of legal knowledge, you can avoid this, and know when to back off and when to keep right on inserting Godly pink Jesus beams into muskrat spooge pics.
To that end, let's discuss some of the laws more relevant to furry tomfoolery. First, though, please note that everything I'm going to say is based on American law, so if you're living overseas most of this won't apply to you. If you're morbidly curious, you can pay a whole lot of money to a local legal professional to learn how the law applies to you. (2) Oh, and please note that I'm NOT a licensed attorney and the information in this article should not be considered a substitute for the advice of an actual legal professional. Please don't go to court and say, "Well, the New Meat on CYD said blah blah blah." Mostly, this is just general information that's good to have on hand for the odd time that you do get a "STOP RAPING MY SOUL" letter, if only because a little knowledge can go a long way toward intimidating your opponent.
That said, let's look at some of furries' favorite causes of action.
Copyright Violations: The Atrocity Archive Simplified
Doubtless, this is going to become a really active area of litigation, now that KAK's furry art police are on the case! To become an expert in copyright law, all you need to do is open a VCL account. The forums of that gallery, and pretty much any online gallery with a large contingent of furry artists, are clogged with frantic accusations of art theft and long discussions about appropriate remedies (3). No one (4)wants to steal furry art but sometimes you stumble across a MACRO HERMAPHRODITE UNBIRTHING TAUR pic that's too good not to photoshop. In this case, when the original artist discovers your mockery and sends you the obligatory "You are violating my personal right and I talked to MY OMG real, not made up lawyer and he says you have to stop or we'll sue for a million billion kajillion dollars!!!!" the law is on your side. In days past, you might have noticed that the NOSOC FAQ includes a helpful primer on Fair Use.
You've probably already heard of it elsewhere too, but to recap: fair use is a legal doctrine that allows one to make "fair use" of an artist's work for purposes of critique, commentary, educational, or journalistic purposes. (5)
Fair Use depend on four factors:(6)
1) The purpose and character of your use - whether you somehow used parts of the original work to create a new and different work (ie. Made a Transformative use) or just slavishly copied stuff verbatim. Parodies count as Transformative uses.
2) The nature of the copyrighted work - A finding of fair use is more likely if you're copying from a factual work, such as a biography, than if you're copying from a creative work.
3) The amount and substantiality of the portion taken - whether you've only taken as much from the original work as is necessary to make your parody work or if you've grabbed (horrors) the "heart and soul" of a work. Parodies are generally allowed to take A LOT, since the whole point of a parody is, well, to make fun of the original's heart and soul. GO YOU!
4) The effect of the use upon the potential market - whether the parody so closely mirrors the original that it might become a substitute for it. Say, if MagKnightX (7) were to produce his "Skritchies for Nothing" and it so spoke to the kids of today that they all stopped buying Dire Straits and just bought his version instead. If, however, MagKnightX's cutting spoof caused the kids of the world to realize that, hey, Dire Straits sucks and they subsequently stop buying their albums, that's just dandy. Parodies are supposed to hurt that way.
Technically, MagKnightX's song isn't parody, but satire, since it's using "Money for Nothing" to make fun of a totally unrelated subject (furries) rather than mocking the source material itself. Courts are less forgiving of satire, since in this case it would still be possible to make fun of furries without using Dire Straits. But you can't make fun of Dire Straits without mentioning Dire Straits. BLAAAH
Finally, it's commonly assumed that acknowledging the source material will shield you from an infringement claim. This isn't necessarily the case, although it might make a judge more sympathetic to you to see that you're trying to give credit where it's due.
Libel, Slander, and Sundry Defamation: Now the whole world knows your dirty secret...
First off, you'll probably never slander a furry. As Spiderman informed the world, slander is spoken. So unless you're so dedicated to furry mockery that you track one down to call him a skunk fucker to his face, chances are you won't need to worry about this. As for libel (written defamation), remember that something can't be defamatory if it's true. Substantial truth also counts, meaning that if you call someone a skunk fucker when they really only fuck dogs, you're probably still in the clear.
Much will depend on whether or not your victim is found to be a public figure. It's doubtful that any furry would achieve enough fame to qualify, but courts still haven't ruled out niche fame as sufficient to get into this category.(8)
If your victim were found to be a public figure, he would have to show "constitutional malice" before he could win a libel case. This means you must either have knowingly printed false information or else printed information with a reckless disregard for the truth.
More likely, if the victim is found not to be a public figure, he'll have to satisfy a less stringent test for libel. First, the statement in question must be a statement of fact, not opinion.(9) Second, it has to be published;internet publication will probably be enough here. Third, the statement must be of or concerning the plaintiff. (10) Fourth, it must involve a defamable plaintiff. (11) Fifth, it must actually cause some sort of damage to the person, preferably economic damage. Sixth, it must be published with the "requisite degree of fault." (11 - Meaning you should have known better) Finally, the statement must be false. (12)
I know that's more factors, but, trust me, it's easier. I wouldn't lie to you at a time like this.
Negligent Infliction of Emotional Harm: "Yuo raped my soul!"
This is a popular cause of action with cutters, Goths, and other angsty sorts who experience life as a vast, desolate wasteland of depression punctuated only by periodic bouts of suicidal mania. Since your average angstwhore lives only a livejournal entry away from slitting her wrists (and writing "WHY?" all over the walls in her own blood before passing out), it's quite possible that even a seemingly innocent comment will push her over the edge from whining about suicide to whining about suing you for causing her to whine about suicide. Remember, writing HUR HUR Yuo=fag on the internet can kill someone JUST AS SURELY AS IF YOU'D PULLED THE TRIGGER YOURSELF. (13- For proof of this, please see the billion forum posts in which angsty folks claim this.) Luckily, even the foulest forum post is unlikely to get you in much trouble here. Courts generally don't like emotional injury for the same reason that the rest of us don't: Because there's no objective measurement of emotional pain and any fatbeard who can stand up in front of a judge and say I WAS HURT INSIDE with a straight face can get some cash.
That's why the only time that an emotional injury case won't get thrown out right away is when there's some accompanying physical harm. And by physical harm, I mean immediate, traumatic, painful harm. There are a few other instances in which courts allow recovery without actual physical harm, but these all involve witnessing a particularly gruesome accident in which either a) you were reasonably afraid for your own physical safety or b) the accident victim was a close relative. Occasionally, you can recover absent these requirements if the emotional trauma resulted from some "special circumstances" so shocking that no one could deny their impact - one such case involved a hospital accidentally sending someone bits of a corpse through the mail.
So there you have it, a short primer on furry law. Now go out there and deflect their puny whinge-letters like the law-knowing dynamo you are!
Footnotes
1. It's like, you know, CRASHING AIRPLANES INTO TOWERS OMG
2. The same knowledge can also probably be found with a nice simple google search.
3. such as spamming anyone suspected of it into oblivion.
4. with any taste.
5. This is why movie critics don't need to pay to show film clips and newspapers can run excerpts in book reviews.
6. Please note these four factors are really little more than guidelines, and judges have a lot of leeway in deciding how to apply and weigh each factor. Much of a judge's determination of fair use will depend on a) how much they hate your opponent and b) how funny your photoshopping is.
7. No meant offense to MagKnightX here.
8. A public figure is generally defined as someone who has willingly placed themselves in the public eye and who has easy and frequent access to the media to tell their own side of a story. OMG ME=TEH SMART
9. Seriously, just saying "I think Foxpuppyfireface smells" is okay, but saying "Foxpuppyfireface smells" might not be.
10. DUH
11. A human being who's alive. Animals cannot be defamed, which raises the question of where otherkin fall. Also, generic groups, such as furries in general, cannot be defamed, only specific people.
12. Again, duh.