Law and Ethics in Fiction


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A TAFE assessment task for the subject "Identify Legal and Ethical Requirements in Context", for Certificate IV in Communication and Media. Presented 24 September 2010.

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Law and Ethics in Fiction

  1. 1. Law and Ethics in Fiction<br />Illawarra Institute of TAFE<br />Wollongong Campus<br />Certificate IV in Communication and Media<br />NSWTETH402A<br />Identify Legal and Ethical Requirements in Context<br />Erin Brown<br />
  2. 2. Legal and Ethical Obligations<br />Primum non nocere – first do no harm<br />Thomas Sydenham, English physician (1624 – 1689)<br />This maxim can apply to fiction writers as well as to those in medicine<br />Most book contracts contain a stipulation that the contents of an author’s manuscript will not cause injury to a reader, e.g. by providing information on how to make a bomb or for hotwire a car, even though those instructions might well be available online<br />
  3. 3. Legal and Ethical Obligations<br />An author must also refrain from defaming anyone<br />Definition of defamation: “a published statement which damages someone’s reputation or holds them up to ridicule.” (The Journalist’s Guide to Media Law by Mark Pearson, Allen & Unwin, Sydney, 1997)<br />This definition does vary between individual States and Territories, but falls under the headings of civil and criminal law<br />
  4. 4. Legal and Ethical Obligations<br />To be considered defamation, the person affected must be living and able to demonstrate that they were identifiable in the work in question, and that the manner in which they have been misrepresented would cause the general public to think much less of them<br />The victim does not need to prove malicious intent – it can be both intentional and unintentional<br />A court hearing the case will only consider whether the writer intended to publish their work<br />
  5. 5. Legal and Ethical Obligations<br />It is lawful to publish defamatory material if the writer can rely on a recognised defence (The ABC All-Media Law Handbook, 5th Edition, Allen & Unwin, Sydney, 2006)<br />Non-fiction (or that which is purported as such) is scrutinised far more closely in defamation cases than a fictional text would be<br />However there have been instances in which a fiction writer has had to justify their material against such allegations, or had their manuscript(s) rejected by a publisher due to the possibility of legal action (however remote it might be)<br />
  6. 6. Legal and Ethical Issues in Fiction<br />
  7. 7. Legal and Ethical Issues in Fiction<br />The Public Burning by Robert Coover, published in 1977<br />This novel was an imaginative, satirical retelling of the events surrounding the conviction of Julius and Ethel Rosenberg for the crime of conspiracy to commit espionage, after they had supplied the Soviet Union with the United States’ nuclear secrets<br />The couple were sentenced to death for their crime, and were executed by electrocution on June 19 1953<br />
  8. 8. Legal and Ethical Issues in Fiction<br />The executions of the Rosenbergs had also been covered in The Book of Daniel by E.L. Doctorow, published in 1971<br />
  9. 9. Legal and Ethical Issues in Fiction<br />The primary differences between The Book of Daniel and The Public Burning:<br />The Book of Daniel: names were changed, and Doctorow chose to focus on the fictionalised consequences for the children of spies who were convicted and subsequently executed during the Cold War<br />The Public Burning: the facts presented were quite often authentic, news sources were sarcastically and extensively quoted, and ex-President Richard Nixon (who was still living at the time) was mocked via a fictional tryst with Ethel Rosenberg<br />
  10. 10. Legal and Ethical Issues in Fiction<br />In this instance there was no litigation instigated, even despite the large print run Coover’s publisher ordered to head off any potential legal threats<br />Coover’s representation of President Nixon, the Rosenbergs, and America in the 1950s was considered to be cruel, but Nixon’s fictional narrative was so shocking that nobody considered it to be in any way authentic<br />Were any formal complaint to be made, it would have called even more attention to a novel that Nixon and company wanted the American public to forget quickly<br />
  11. 11. Solving Ethical Issues in Fiction<br />In the case of The Public Burning:<br />Changing names and circumstances<br />Invention of a fictional United States president, as is done in films and TV series (e.g. The West Wing)<br />Creation of completely fictional person or persons to focus the plot on<br />Fictionalisation of news reports and facts represented<br />Choosing a different era to set the novel in<br />
  12. 12. Solving Ethical Issues in Fiction<br />In my own writing:<br />Must be careful that I don’t obviously base my characters on people that I know, or use anything that has happened to friends and family in real life should I choose to do so<br />Names, gender, physical appearance must be altered significantly enough so that they bear no relation<br />Details of circumstances and/or events should bear no resemblance to what has already taken place<br />
  13. 13. Legal and Ethical Conflicts<br />Fan fiction treads a delicate line between morality and breaking the law<br />Fan fiction is technically illegal, as a writer is “borrowing” the characters, scenarios, settings and “universe laws” created by an author, playwright, screenwriter, cartoonist or graphic artist – their intellectual property – and using them to create their own stories, but many nations do consider fan fiction to come under the heading of a derivative work<br />
  14. 14. Legal and Ethical Conflicts<br />Some authors have issued cease-and-desist notices to fan fiction writers, or have expressly requested that fan fiction is not written based on their works, though there has not yet been major legal action taken against writers<br />Examples being Anne Rice, Laurell K. Hamilton, Diana Gabaldon and Raymond Feist<br />However many authors and other creators tolerate, approve of or may even encourage fan fiction<br />Film and television production studios occasionally commission fan fiction, in the form of novels<br />
  15. 15. Legal and Ethical Conflicts<br />Morality comes into play when a writer ventures into the realm of real person fiction<br />The writer is using a celebrity or other media personality as a character for their own fictional purposes<br />My personal view on this subject is that I am not using the celebrity themselves as a character – all I am doing is borrowing their name and their likeness, and making inferences about their personality based on what I have read and/or seen in interviews; I then use this to create my own character<br />
  16. 16. Legal and Ethical Conflicts<br />Solving the problem of law and ethics conflicting<br />As a real person fiction author, I am very careful about where I mention what I write, as it is banned at the forums owned by one of the bands I use in my writing – I make no explicit mention of what form my writing takes, and I do not link my website or online journal to my user profile<br />I always post a disclaimer with my stories, an example being:<br />I claim no ownership over Hanson, 30 Seconds To Mars or Firefly. I am in no way associated with 3CG Records, with EMI Music or with Mutant Enemy. Hanson and 30 Seconds To Mars own themselves, and Joss Whedon owns Firefly, Serenity and the ‘Verse.<br />