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View Full Version : Curious and Curiouser Pt. 2



mscelina
10-20-2010, 05:34 AM
Okay, so here's the hypothetical deal:

An author writes a Halloween story about a place that really does exist. Legends about this location have existed for decades--since the early 1900s--a bona fide ghost town, a town that no longer exists but people in the area retell paranormal legends about the place. Now, in the author's story, there are no paranormal events--it just serves as the setting for a tongue-in-cheek Halloween story.

So, the EIC of the house releasing this story gets a letter from the company that owns the land this ghost town sits upon, threatening to sue the company for 'tying the property to alleged paranormal activity.'

So here's the question..or two: first off, do the hundred years plus of folklore about this location constitute public domain? And second, can anyone actually stop the publication of a book because of the setting?

I think I know the answers to both questions. I'd be curious to see if I were right. There is at least one prior example of this company's attempted suppression of an article and a book which lists the town as a setting.

Xelebes
10-20-2010, 05:56 AM
Do people get sued for publishing paranormal stories taking place in the Empire State Building?

mscelina
10-20-2010, 06:11 AM
:ROFL: Not to my knowledge. I don't think they sued for setting them in Amityville or Georgetown or Adams, Tennessee either.

Sunnyside
10-20-2010, 06:41 AM
Interesting. I would simply direct them to the Mayor of Sleepy Hollow, NY, and have them ask whether having the town associated with ghosts and the paranormal has done their particular town any harm.

Oh, wait. They pretty much own Halloween now (http://www.sleepyhollowny.gov/index.php?option=com_content&view=article&id=138:halloween-2010&catid=1:latest&Itemid=201). Guess that didn't work out so well for them, huh?

Cyia
10-20-2010, 06:56 AM
INAL, but I would assume that if you can provide proof of the claim that the folklore is that old, then they're out of luck.

mscelina
10-20-2010, 06:57 AM
I can sort of understand their concern. The area in question was inundated with trespassers a few years back after the release of a film that for some reason became associated with the location. I firmly believe they have the right to prosecute trespassers.

I do not, however, believe that owning a tract of land that a writer uses as a location is grounds enough to suppress that writer's right to free speech.

mscelina
10-20-2010, 06:59 AM
INAL, but I would assume that if you can provide proof of the claim that the folklore is that old, then they're out of luck.

Google is great for that, actually--over 19,000 results including websites devoted to the legend. The legend began in the early nineteenth century, before the area was deserted near the end of the century. It's certainly persisted throughout the twentieth century and into the twenty-first.

thothguard51
10-20-2010, 07:02 AM
As far as arguments go, a public location like a city is different from private property. If the owners can show that the value of the property has been harmed because of the book, then I think they could get a temporary injunction.

I don't think local legend and lore will matter much because it stays pretty much local. But the book would put it in the national spot light where the owner may not want it. Or so an argument could be made.

Still, the author will claim its totally fictional and any resemblance to actual places, events, or persons is purely coincidental. Or something like that. The burden of proof will be on the opposing party...the land owners.

mscelina
10-20-2010, 09:01 AM
There are, according to my hypothetical research, currently four books available on the market about this location that DOES mention alleged paranormal activity. The hypothetical company claims that the mention of 'alleged paranormal activity' in this new writer's book (when there isn't any paranormal activity mentioned at all) will lead to trespassing.

But apparently the 19,000 hits on the web, the other four books already on the market, the articles and the films didn't? This is a hypothetical e-book. Even if it has great sales I can't see hordes of paranormal junkies flocking to this place to trespass. The hypothetical author's note emphasizes and clearly states the property is private and trespassers will be prosecuted.

Regardless, the history of the location and the legends surrounding it are very well-know, so well known that radio stations in the area are continuously reminding their listeners that the area is closed to visitors. My thought is that the location, since it is a historical location, is in the public domain, as are the more than a century's worth of legends, and that this attempt by the corporation to repress the publication of the novella would result in a violation of the author's First Amendment rights.

thothguard51
10-20-2010, 11:07 AM
Yes and no. The argument goes something like this...free speech does not give a person the right to yell fire in a crowded theater when there is no fire and thus jeopardise lives and or property from their action.

Free speech also does not give the person a right to infringe upon other rights of individuals, such as privacy. While the author may not be responsible for the actions of his readers, authors have been successful prosecuted for the content of their work as a public menace or some such thingy. IE guys who write how to books on making bomb, how to murder, etc, etc, etc. I don't remember the individual cases, but the federal government has gotten books off the market. A private individual or corporation though might have a tougher time of it...

Like I said though...the burden of proof will be with the complaining party to show damages to a court. I would also think if this is a large corporation, or even one with deep wallets, they could tie this book up for a long time just in the courts. What publisher wants to have assets tied up in courts and they might just let it go...

Lots of ways to look at this, lots of possibilities, real or otherwise...

Theo81
10-20-2010, 01:23 PM
Could you go the Thomas Hardy method and change the name to something which sounds similar and is obviously based on the place, but is fictional? I have no idea of a legal position, but unless it's going to cause massive problems for you to rewrite, might be better to go the "inspired by" way rather than it actually being this place.

Phaeal
10-20-2010, 05:22 PM
Yeah, if there were a real threat of the property owner throwing a hissy fit (especially a hissy fit with money behind it), I'd probably give the town a fictional name. On the other hand, it is irritating to have to cater to what seems on the surface to be unreasonable whining. Much depends on how important it is to use the real name of the setting.

MartinD
10-20-2010, 07:00 PM
I'm guessing the threat of legal action would be enough to have the EIC consider changing the name of the town ("New York", say, becomes "New Yorkshire").

Sunnyside
10-20-2010, 07:12 PM
Oh my. You wouldn't be talking about Burkittsville, Maryland, would you? The Blair Witch Project DID result in their town sign being stolen several times.

They're the next county up from me, and you're right, they DON'T have much of a sense of humor about this sort of thing. But I'm not sure whether they'd have standing in a cease and desist. But whatta I know?

mscelina
10-20-2010, 07:26 PM
Yes and no. The argument goes something like this...free speech does not give a person the right to yell fire in a crowded theater when there is no fire and thus jeopardise lives and or property from their action.

I don't think the Schenck case applies here. At any rate, it was overturned by Brandenburg v. Ohio in 1969.


Free speech also does not give the person a right to infringe upon other rights of individuals, such as privacy. While the author may not be responsible for the actions of his readers, authors have been successful prosecuted for the content of their work as a public menace or some such thingy. IE guys who write how to books on making bomb, how to murder, etc, etc, etc. I don't remember the individual cases, but the federal government has gotten books off the market. A private individual or corporation though might have a tougher time of it...

Like I said though...the burden of proof will be with the complaining party to show damages to a court. I would also think if this is a large corporation, or even one with deep wallets, they could tie this book up for a long time just in the courts. What publisher wants to have assets tied up in courts and they might just let it go...

The corporation is claiming potential damages from 'alleged paranormal activity' references in the book. There ARE NO 'alleged paranormal activities' in the book. That's the important part that you're entirely missing.

mscelina
10-20-2010, 07:27 PM
Oh my. You wouldn't be talking about Burkittsville, Maryland, would you? The Blair Witch Project DID result in their town sign being stolen several times.

They're the next county up from me, and you're right, they DON'T have much of a sense of humor about this sort of thing. But I'm not sure whether they'd have standing in a cease and desist. But whatta I know?

Nope, I'm not.

quicklime
10-20-2010, 07:46 PM
There are, according to my hypothetical research, currently four books available on the market about this location that DOES mention alleged paranormal activity. The hypothetical company claims that the mention of 'alleged paranormal activity' in this new writer's book (when there isn't any paranormal activity mentioned at all) will lead to trespassing.

But apparently the 19,000 hits on the web, the other four books already on the market, the articles and the films didn't? This is a hypothetical e-book. Even if it has great sales I can't see hordes of paranormal junkies flocking to this place to trespass. The hypothetical author's note emphasizes and clearly states the property is private and trespassers will be prosecuted.

Regardless, the history of the location and the legends surrounding it are very well-know, so well known that radio stations in the area are continuously reminding their listeners that the area is closed to visitors. My thought is that the location, since it is a historical location, is in the public domain, as are the more than a century's worth of legends, and that this attempt by the corporation to repress the publication of the novella would result in a violation of the author's First Amendment rights.


Chat with an actual lawyer....no harm asking opinions here, but in the end you want someone trained to sound off.

I find it difficult to believe they have a solid case, my guess is the legal action is intended to scare you off. Remember they can win by suing and winning, but they can also win by threatening to, or by tying it up until you run out of resources. If their case has zero merit, then they mostly just have the bluff, but you need to talk to an actual lawyer to double-check this

thothguard51
10-20-2010, 09:58 PM
I don't think the Schenck case applies here. At any rate, it was overturned by Brandenburg v. Ohio in 1969.

The corporation is claiming potential damages from 'alleged paranormal activity' references in the book. There ARE NO 'alleged paranormal activities' in the book. That's the important part that you're entirely missing.

The corporation can allege all they want but in a court of law they will have to provide substantial proof that paranormal activity exist only because of the book, where none existed before. IMHO. And if the book does not list paranormal activities, I don't see how they would win on that count alone.

Still, a corporation with deep wallets can afford to tie things up like this in court if they feel it will harm the value of any potential sale or use of the land. Even if they don't win, they do have a right to file suite. The courts will have to determine if there is any value to the lawsuit or if its frivolous. Again, IMHO laymen opinion...

quicklime
10-20-2010, 10:10 PM
you could stress to them, if you are in the right, that you intend to proceed, and a lawsuit would only serve to increase unwanted attention and better pinpoint the actual property.....

to me, this sounds like legal bullying to shut you up, rather than a case with merit, but again, TALK TO A LAWYER

mscelina
10-21-2010, 09:02 AM
If this were a true case and not hypothetical, I wouldn't be that worried about it.

*grin*

But as it's hypothetical, I'm really not that worried about it. I think it would take a really bizarre chain of events to link an e-book without mention of paranormal activity in it to actual physical damage done by trespassers. If the hypothetical author was JK Rowling or Stephen King, their argument might have a smidgeon more credibility. But then again, I don't think the hypothetical company would go after them.