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When Real People Become Fictional: The Collision of Trademark, Copyright, and Publicity Rights in Online Stories About Celebrities

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Abstract: Fanficion is frequently defined as the writing of fiction involving the characters or setting of someone else’s creation. However, there is a subset of fanfiction that is known as Real Person Fiction, or RPF. This subset writes stories not about other people’s fictional creations but about real people, whether they be hockey players or movie stars, and it has long been the scene of heated debate in the fan community. Some fans who readily and enthusiastically engage with fanfiction draw strict “squick” lines about RPF and call it “creepy” and “disturbing.” Perhaps for this reason, scholars have paid little attention to online stories about celebrities in evaluations of fan activities. From a legal standpoint, however, these stories are much more easily defensible than fanfiction. As they involve real people instead of fictional creations, they do not implicate copyright and so are protected from the charges of copyright infringement that could be levied at other pieces of fanfiction. Their First Amendment implications and non-commercial speech aspects tend to protect them from attacks using trademark law. Finally, their embrace of wildly unlikely fictional scenarios — ranging from movie stars recast as baristas to pregnant male hockey players — shields them from any possible liability for privacy right or publicity right violations. This Article concludes that online stories about celebrities are currently legally protected, possibly more so than more traditional forms of fanfiction and even some more mainstream forms of storytelling. It further concludes that these stories should be so protected as a matter of sound policy.

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