Jensenvention: Why We Need To Remember Show Business Is First A Business

[morgandawn]

Edited: There have been updates on these recent events. More here. But Jensen Ackles attorneys did send a C&D letter against a fan website and a Livejournal community.

I have no idea if any all of what is being reported below is true. In fact, without the facts all of our opinions are just conjecture. But this scenario raises an interesting point I'd like to discuss - what is the real relationship between the media producers (actors/studios) and their fans.

The story so far: The (IMHO funny & offensive) Jensenvention website is offline and the members only spn_petja Livejournal community has been deleted, the site owners are talking C&D letter/lawsuit (with more than just copyright charges being tossed at them), their supporters are locking or deleting their journals. And of course lots and lots of speculation going about.

Here are several opposing viewpoints being offered:

onelittlesleep points out that taking action against a fannish website that offers up an unflattering view of an actor puts all bloggers at risk. (edited - this was one of the few posts supporting the blogging side of the story - but because of the legal fears of the fans behind Jensenvention, her post has been locked by request. But what happened here may have been very much similar to what happened in this case - unflattering satire posted of a public figure/group and a C&D letter was sent to shut it down. Both the EFF and Chilling Effect are reporting that copyright law is being used more and more to silence dissent or criticism - it has become to 'go to first' tool in corporate gunslinging. More here and here)
vinylroad points out that "if I came across that site and comm talking about me and my family that way, I don't think I would be very understanding."
and giandujakiss goes: Huh?! What??? (aka Can we get some more *facts* please?)

But *if* this is a C&D letter/lawsuit against fans *for making unflattering/insulting comments* about Jensen Ackles that is *if* it is being directed by Jensen and/or his agents here are my thoughts:
I think the Jensenvention website was satire. We all have the right to post our satirical opinion about pretty much anything we see in our world - Jensen, the size of Jared's ...nose, the Bush and Congress tragic and epic love affair or the mounting price of cheese. I also think Jensen's lawyers/PR people did the right thing taking it down - satire never plays well in Peoria and it is too easily misunderstood. Plus, as an actor you want to be able to shape your public image as best as you can.

But fans need to remember this:
Show business is a business. Jared and Jensen may be nice people but they (and their handlers) are in it for the money and making a living. They really don't care about fandom's 'good intentions' or "we were just having fun" - but they do care how much money and ratings we bring in. Normally keeping the fans happy and engaged is part of this business model. But we shouldn't be shocked when the business-people leap to slap us with a C&D letter file a lawsuit over something that may - even in the end - bring them bad PR. Jensen and his agents do not hate fans nor do they want to silence all celebration/criticism of the actor. But if that celebration/criticism edges too close to their bottom line - they will take action, PR and fan love be damned.

In short: wise business move that appears to have been poorly executed. The manner in which Jensen's PR team appears to have taken against Jensenvention is short sighted and may cost them some fan support in the long run. But fandom support is not what pays the show business bills - Jared's and Jensen's standing in the industry with the directors and studios first and advertisers ratings draw next - that is what matters.

And last (and I cannot stress this last point strongly enough) - we don't know the full facts behind this and may never. *If* the Jensen Ackles Business Team (TM) filed a lawsuit first simply based on what I saw on the website- not smart tactically, legally or PR-ly. And even if it was only a C&D letter, I would have advised them to try a more low-key approach before reaching for the legal-guns. While shutting down the site may have been a wise business move, would you want to be the actor known as 'that guy who hired lawyers because a few fans called him chubby & illiterate?"

But - and this is the second important but - *if* there are more behind the scenes facts, then all our considered opinions mean nothing.

edited to add: a few more comments second hand on the legal action claims here
More direct source facts on the C&D letter here
I was able to find more facts about the Jensenvention site's contents here.
and last - those of you who cannot get enough of the legal stuff - go here for an overview of C&D letters and parody vs libel/slander.

PS. Nothing posted on my blog or in any of my comments is legal advice. This post provides background on legal issues; it does not provide legal advice. Legal advice is tailored to the facts of your particular situation. If you need legal advice, consult an attorney.

Comments

[onelittlesleep.livejournal.com]

Though this is not a libel case (as far as I know) comparing this to "If I came across a site like this, about me and my family-") isn't really reasonable. I mean, the law would definitely consider both differently, because while you and your family don't have a precedented level of public scrutiny, as an actor, Jensen Ackles DOES. The law would usually allow for more understanding in a libel case, by a private, unpublicized person than it would for someone like Jensen Ackles, who is already publicly scrutinized AND has the ability to make a public statement about it, on his behalf. Not everyone has this right to public awareness or the media, but Jensen Ackles does as a 'celebrity'. So she's RIGHT. If MY family was mocked on a website, I would be annoyed. And would have possibly more legal rights to action. But Jensen Ackles isn't a private citizen.

THAT SAID, if they were ACTUALLY trying to malign him, I would understand also. But, though it's subject to opinion, the site was purposely satirical, and can be construed that way.

ALSO, I think a lawsuit (or whatever) against a single fan or two for their joke site (which was never recognized by a mainstream media source NOR is it as wildly popular as a site like Perez Hilton) goes much further in maligning Jensen's character than anything they could have jokingly said on their site.

[(Anonymous)]

I can't understand why people in fandom are defending the right of people like icymorning to make posts and create websites that equate social anxiety to stupidity. As someone who suffers social anxiety, I find it utterly nauseating everytime people in fandom make those kind of statements. And it happens all too frequently for my peace of mind. If Jensen were a person of colour or a woman and a fan created a website linking either of those characteristics to stupidity, fandom would be outraged - justifiably so. This is no different, despite claims that it is just satire. Those statements hurt people and Jensen is the least of them.

Good riddance to bad rubbish, I say.

[madame-meretrix.livejournal.com]

i disagree, respectfully, with you, for precisely the reason you claim to dislike the 'rubbish.' i think a very large proportion of fandom suffers from some degree of social anxiety. i would say that i do (in fact, making this comment is terrifying, and i don't even know who you are).

but the fact that a couple of people have created imaginary foibles for a famous person not only humanizes him -- makes him seem more like someone i might know -- it also provides an outlet for people like myself and others in fandom. we can project meant-in-jest personality quirks onto someone that we admire, while at the same time celebrating our slightly-manic obsessions with him amongst ourselves. we're both de-celebretizing him and making him the focal point around which we gather.

so while i understand that you would like people to take social anxiety disorder seriously, i don't think that jensenvention made light of it. in fact, i think the site and the people behind it struck a very resonant chord amongst a large proportion of SPN fandom, precisely because it combined some cogent, real life experiences with one of the central reasons we're on the internet in the first place. cute boys.

[tallihensia.livejournal.com]

I saw a bit of that on my flist this morning and was going "woah!" I'll be interested in seeing how this unfolds... i.e. what the real facts are going to be (if we do ever know them). Right now, this definitely has a lot of people upset.

Please don't eat the kittens

[morgandawn.livejournal.com]

I have a feeling that real facts will remain in short supply. Much of what I read this morning is now being locked down or deleted. And *if* these fans were hit with a C&D letter/lawsuit and *if* they did work out something with the lawyers, you can bet they were told they would be wise not to talk about it further.

So I think it is futile to try to figure out what has happened - and more important to pay attention to what impact this may have on fandom. I've seen a few RPS writers lock their fic down further. Because as someone wrote: how is calling Jensen functionally illiterate any more libelous than telling the world he likes to be buttfucked by Jared? And if a large chunk of fandom thinks these website owners are getting what they deserve, will they stand up for me when I post my vampire Jesen AU where he dines on kittens for breakfast?

ps. cofax7 is right - we need cat macros on this.

Re: Please don't eat the kittens

[aithne414.livejournal.com]

Hey! :) I've come across your posts about this subject, and have found them really informative and helpful. Thanks for putting the information out there for us non-legal types! I had a thought on this bit, actually...

"Because as someone wrote: how is calling Jensen functionally illiterate any more libelous than telling the world he likes to be buttfucked by Jared?"

I don't think it's any more libelous, but the primary difference I'm seeing between RPS and Jensenvention is that Jensenvention (as I understand it) planned an awareness campaign... flyers, postcards, basically taking this out into the real world and seeking out people who weren't already familiar with the actor. The campaign leads back to the site, which is part of PETJA. (And I guess, to a lesser extent, posting videos sans disclaimer on YouTube could fit into this as well.)

So, I could see where Jensen's people wouldn't care about fic, not only because it's in a clearly-recognized format associated with fiction, and therefore less likely to be taken seriously, but more importantly, because it's not being systematically and intentionally disseminated among non-fans. There's no proselytizing of the buttfucking message, as it were. So, I'd think Jensenvention would be more alarming to his people than fic... hence why they've never cared about fic up to this point, but went after Jensenvention shortly before the "vention" part was going to take off. It's possible that if people staged a similar publicity campaign about the buttfucking, his people would go after that as well.

I don't know if that's a reasonable assumption to make, but it's struck me over the last couple days that this would be the concern for me, if I were his representation.

Re: Please don't eat the kittens

[morgandawn.livejournal.com]

I think your assumption is reasonable (although yes yes we're all speculating). A public campaign certainly could have been the tipping factor - and as I argued elsewhere in another post, a public campaign without the context (satire/parody) attached to it might even have survived an initial court hearing. From a pure libel/slander POV most of what I've been able to see that was publicly posted would not make up a viable claim

[girlguidejones.livejournal.com]

I knew that if I waited long enough, someone would write a considered, thoughtful, and reasonable statement on the matter and I could just reply "Hear! Hear!" and save a lot of time.

Ergo: "Hear! Hear!"

[morgandawn.livejournal.com]

I wish we had more facts. I was able to find more info about the site's contents here. http://morgandawn.livejournal.com/888995.html

I am not impressed with the site - but if they were shut down by the studios/actor lawyers, I'd say Jensen's PR team needs to refocus their priorities. Like getting him some kickass acting parts in non-genre movies or TV shows. Because as an actor - he is awesome.

[scribblesinink]

Thanks for alerting me to this. I've been wasting far too much time recently on reading wank, so I'm not going to read all the posts about this, but...

I've never heard of this website, so can't really say much about its content, other than those few Google cached pages you linked to. Neither struck me as particularly funny or satirical, but also not as something that warrants a C&D letter.

My guess would be that the site also contained copyrighted imagery (photos, videos) that was being used without permission (as fan sites are wont to do). It's far more likely that that, probably in combination with the content, triggered the C&D letter. Also, I seriously doubt Jensen does even know about this. It sounds like a typical lawyer/agent decides to Google his client's name, runs into the site, doesn't 'get' the funny (neither do I, for that matter), wants to take action, sees copyrighted stuff being used, and voila, C&D.

From a business viewpoint, probably a wise move indeed. From a fan-relations viewpoint, perhaps not so much. At the very least (but who knows, that might have happened...) a friendly e-mail to ask the site be taken down/changed might've been a better first move.

And um, that got longer than intended...

If we cannot get Al Capone for bootlegging. let's get him for tax evasion

[morgandawn.livejournal.com]

I think you 'nailed' it. If IP was used to shut down the site, I doubt that it was the main driving force given the many other sites that are using photos and videos and are known and frequented by the writers/actors/agents. The site owners were also claiming there was more than IP involved in the C&D letter/lawsuit. But IP might have been used as the hammer - IP is becoming the 'go to' tool for many corporations/groups to silence critical speech. (see the ACLU case I listed in my last link above).

[madame-meretrix.livejournal.com]

Thank you for gathering all of this together, it was the first i'd heard of a potential C & D.

i agree with you on all points. publicity translates into dollars, unfortunately, and if his management has decided that a site like that could potentially damage his reputation (which is his capital) then i could see how they'd perhaps want to be aggressive about it. although i don't think it's necessarily the best move on their part, it's a logical choice.

eta: you know, the more i think about this, the more i realize that regardless of what actually happens with lawyers and management and what have you, the argument within fandom is going to revolve around the intellectual property rights of celebrities to their image. i can imagine that it will cycle back around to RPS and the other usual suspects. in that regard, i think sites like jensenvention can be seen as the canary in the coalmine. so regardless of what folks think of this particular site (which had much more to it than silly 'illiterate jokes') we should all consider what this means for RPS fandoms in their entirety. could the dominoes go something like: first let's get rid of the critical and/or satirical sites, and then let's get rid of all the fanfic, maligning our client's character?

[bonwriter.livejournal.com]

There's a difference between RPS and the Jensenvention site. RPS is clearly labeled as fiction, while the Jensenvention site was presented as fact, albeit satirically.

Actors have the right to protect the commercial value of their name and image. This is Jensen's livelihood, after all, not just a passing amusement like Jensenvention is for its site owner. He has a right to complain if media content is both false and could devalue his name and image. And then there's the waiver issue: if he failed to take any action against Jensenvention, he could lose the right to complain about the next mockumentary website or the next tabloid smears.

One final irony: I posted a comment similar to this on the live journal of a poster arguing for the First Amendment rights of the Jensenvention site owner. She deleted my comment.

[morgandawn.livejournal.com]

I don't think that you lose standing if you fail to chase after every tabloid smear. There may be IP considerations you need to consistently defend but never the ability to complain about libel/slander.

Go here for more chat on the 'right ' of a public figure to silence unfavorable depictions of them (or their family).
http://morgandawn.livejournal.com/889503.html

[bonwriter.livejournal.com]

You're correct about libel claims, but I was addressing the IP right to control one's own public image (akin to trademark), which can be lost through waiver if violations are not policed.

right of publicity

[morgandawn.livejournal.com]

Are you thinking of the right of publicity? Which is similar but distinct from trademark. I found these overviews here and it also goes into depth on First Amendment issues.

http://www.publaw.com/rightpriv.html
http://en.wikipedia.org/wiki/Personality_rights

Key elements that might apply in this case: "Is there a purposeful intent to injure the individual?"

Will the publisher derive financial gain from using an individual's identity? If yes, is the individual's identity used to convey newsworthy information of legitimate public concern?"

I'll have to do more digging to find out if the failure to defend ones claim for rights to publicity bars public figures from pursuing other claims. That is more often seen in Trademark law. Let me get back to you?

Re: right of publicity

[morgandawn.livejournal.com]

Still looking for info that that the failure to consistently pursue 'right to publicity" cases = waiver of those rights. I did find sections on 'consent' - that is if you consent to publication in one context, you were not barred from pursuing your claims in other context. (See here - this is a very dense legal summaries) http://adultwebmasterlaw.blogspot.com/2005/10/right-of-publicity-and-privacy-outline.html

The summary also goes on to say that - right to publicity = a commercial right. Parodies/satires are not commercial speech and are protected by the First Amendment. Of course each state has their own take on publicity rights so YMMV.