: THE ARTIST DOESN'T MATTER WHEN IT COMES TO ART...
This is a comment from a conversation here, but all you need to know is that I'm trying to articulate why it doesn't matter that the images are fictional, and why it doesn't matter what the artist meant...
Actually, it would. Because the issue is not just one of ending the abuse of children for the purpose of sexual gratification but of ending the practise of using images of children -- however created -- for sexual gratification. Actually, that link there is probably one of the most useful links I've seen passed on in this whole kerfluffle.
Here's what I've gleaned so far.
-- To the majority, the sole purpose of the creation of a work of art that expresses sexual acts is prurient unless immediately proved otherwise in context. Even The Rape of Leda and other works of art (including the solitary David)are only protected from being perceived as prurient and obscene by virtue of being considered 'fine art'. Note that in today's climate, this could change at any time and protection could be rescinded.
--Non-commissioned* fan art is at the bottom of the list of creations eligible for that exemption because of present public opinion that fan art is not only illegal, but again, created solely for the purpose of gratification of fans. Even the average citizen will tell you that they feel that they can tell the difference between something created for 'artistic' purposes and 'fan art'. Legal/judicial persons will have similar opinions. Add sexual content to that and the public opinion -- and officials are members of the public -- will be that fan art with sexual content has no artistic merit and is created solely for the purpose of sexual gratification. It doesn't matter the intent, it doesn't matter if the character is real or not. It is the practise of using images for sexual gratification that is at issue, as far as I can tell.
-- The argument on any level that the characters are fictional is irrelevant. The push is to stigmatize and and criminalize the use of images of obscene or illegal acts for the purpose of sexual gratification on the understanding that permitting the use of such materials legitimizes the acts themselves in the physical realm. Whether this is provable or not, it is a driving force behind many attempts to limit access to everything from music to video games to magazines and even literature. The argument of artistic and literary merit wears thin when used as a defence.
-- Fanfiction and fan art themselves are under assault, regardless of content. Their legitimacy is constantly questioned and it's my feeling that a split is in the offing between those who create explicit derivative works and those who do not in order to preserve the right to create derivative works by divorcing that issue from issues of sexuality and obscenity. The battles are different and the right to create derivative works could be threatened by the overwhelming sexualization such works.
-- What an artist intended is irrelevant. When it comes to sexual images, what the image could be used for is all that matters. If one looks at an image, one must not ask "is this beautiful?" or "is it meaningful?" or "is it true to the genre" or even "are the characters of age?" All that one must ask is first: "could some person viewing this use this image for sexual gratification?" And second: "could some person viewing this use this image for sexual gratification on the grounds that the persons in it appear to be, or could be imagined to be, underage?" When it comes to artwork with sexual content based in the Harry Potter and other juvenile canons, that answer to the second question is very simply 'yes', unless the artist has been extremely careful to indicate that the characters are adult, and even so, questions of obscenity and 'merit' may go against the artist.
...$DEITIES, that got long. But that's what I've got so far, from all the fuss.
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*Non-commissioned: by the writer or editor or publisher or some other legal representative of the copyright holder.
This is a comment from a conversation here, but all you need to know is that I'm trying to articulate why it doesn't matter that the images are fictional, and why it doesn't matter what the artist meant...
Actually, it would. Because the issue is not just one of ending the abuse of children for the purpose of sexual gratification but of ending the practise of using images of children -- however created -- for sexual gratification. Actually, that link there is probably one of the most useful links I've seen passed on in this whole kerfluffle.
Here's what I've gleaned so far.
-- To the majority, the sole purpose of the creation of a work of art that expresses sexual acts is prurient unless immediately proved otherwise in context. Even The Rape of Leda and other works of art (including the solitary David)are only protected from being perceived as prurient and obscene by virtue of being considered 'fine art'. Note that in today's climate, this could change at any time and protection could be rescinded.
--Non-commissioned* fan art is at the bottom of the list of creations eligible for that exemption because of present public opinion that fan art is not only illegal, but again, created solely for the purpose of gratification of fans. Even the average citizen will tell you that they feel that they can tell the difference between something created for 'artistic' purposes and 'fan art'. Legal/judicial persons will have similar opinions. Add sexual content to that and the public opinion -- and officials are members of the public -- will be that fan art with sexual content has no artistic merit and is created solely for the purpose of sexual gratification. It doesn't matter the intent, it doesn't matter if the character is real or not. It is the practise of using images for sexual gratification that is at issue, as far as I can tell.
-- The argument on any level that the characters are fictional is irrelevant. The push is to stigmatize and and criminalize the use of images of obscene or illegal acts for the purpose of sexual gratification on the understanding that permitting the use of such materials legitimizes the acts themselves in the physical realm. Whether this is provable or not, it is a driving force behind many attempts to limit access to everything from music to video games to magazines and even literature. The argument of artistic and literary merit wears thin when used as a defence.
-- Fanfiction and fan art themselves are under assault, regardless of content. Their legitimacy is constantly questioned and it's my feeling that a split is in the offing between those who create explicit derivative works and those who do not in order to preserve the right to create derivative works by divorcing that issue from issues of sexuality and obscenity. The battles are different and the right to create derivative works could be threatened by the overwhelming sexualization such works.
-- What an artist intended is irrelevant. When it comes to sexual images, what the image could be used for is all that matters. If one looks at an image, one must not ask "is this beautiful?" or "is it meaningful?" or "is it true to the genre" or even "are the characters of age?" All that one must ask is first: "could some person viewing this use this image for sexual gratification?" And second: "could some person viewing this use this image for sexual gratification on the grounds that the persons in it appear to be, or could be imagined to be, underage?" When it comes to artwork with sexual content based in the Harry Potter and other juvenile canons, that answer to the second question is very simply 'yes', unless the artist has been extremely careful to indicate that the characters are adult, and even so, questions of obscenity and 'merit' may go against the artist.
...$DEITIES, that got long. But that's what I've got so far, from all the fuss.
-----
*Non-commissioned: by the writer or editor or publisher or some other legal representative of the copyright holder.