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Whose Art is Art?

People can overreact to art in such a massive way, and the worst-case scenario is when the law takes notice. Whatever the scenario is that leads to the badges and uniforms narrowing their eyes, it is most likely followed by some form of media “breaking the story wide open”.

This happened in 2010 when an American man crossed the border into Canada. On his way to visit a friend, “Brandon X” was stopped at Canadian Customs, where officials examined his personal property (Brandon’s real name is currently being withheld). One of the customs officials was browsing through the contents of Brandon’s laptop when the official came across some manga. What followed was a nightmarish scenario that could easily be the next “ripped-from-the-headlines” plot of a Law & Order episode: Brandon was arrested, and is looking at one year in prison. He was also forced to register as a sex offender, as the material found on his laptop was deemed child pornography.

Comic Book Legal Defense FundNot all of the information surrounding this case is of the doom-and-gloom variety, however. On Friday, June 24, 2011 the Comic Book Legal Defense Fund (CBLDF) announced that it will form a “coalition to support the legal defense” of Brandon, estimating the monetary need to be $150,000 CDN. Even though it could be an uphill battle, he will not be facing it alone.

He is also not alone in having his personal property searched by customs officials. The CBLDF reported, “In the past three years, nearly 12,000 people have had their electronic devices searched when crossing international borders into the United States.” That number makes it seem rather amazing there haven’t been more men and women arrested for carrying content someone else deemed questionable.

All of this certainly has potentially wide-ranging legal and political ramifications, but it also raises a question regarding the content of the comic book art form. Labeling a book with a genre can help potential readers find what they’re looking for, but it can just as easily help someone avoid that which they aren’t looking for. The unfortunate side effect of labeling is that it can allow others to control the content in various ways. Past events, including the 2010 case the CBLDF has taken on, have proven that the act of labeling art can be a dangerous one.

Artist Brandon Graham.

It might be weird to think about, but at some point in the past someone had to decide what the definition of “pornography” would be. It wasn’t easy, but somewhere someone came up with this: “Pornography: A depiction (as in writing or painting) of licentiousness or lewdness; a portrayal of erotic behavior designed to cause sexual excitement – compare to erotica.” The definition of erotica is: “literary or artistic items having an erotic theme; especially books treating sexual love in a sensuous or voluptuous manner.”

The process of lining up words to describe something as subjective as art may be a never-ending struggle. Many artists have discussed the Canadian case and the plight of the man involved, and the opinions are as varied as the comics with which they are concerned. Comic book artist Brandon Graham created several posts on his blog, and his were some of the opinions that caught my eye.

Graham recently completed a 12-issue run of his book King City, which he both wrote and illustrated. There isn’t anything within those issues I would consider porn, but Graham is a fan of drawing curvaceous women, and the possibility does exist that a round and bouncing butt would trip the pornography sensors in someone’s head.

One of the reasons Graham’s opinions caught my eye is the work he has done in the past. In an interview with Vice magazine, Graham said, “I lived off of [porn comics] for a couple years.” Although he described receiving a paycheck from porn comics as being a “…weird life,” he was also somewhat reverent of those times, saying, “I got to draw whatever I wanted (as long as there was sex in it) and pay my rent off it.”

I view porn comics as no big deal. Certainly, the possibility existed for them to become problematic – read: illegal – but that can be said about a long list of subjects.

On his blog he states that porn comics are “all consensual ideas conveyed through lines on paper,” and classifies the comics in question as having “no victim.” Their only “crime” is “being an offensive combination of words and lines.” The idea that citizens were being prosecuted for victimless “crimes” was an intriguing one. I contacted Graham and to get more in-depth idea of his opinion. I spoke with him regarding porn comics via email.

Paul Pope

One of the first things I asked him about was a Paul Pope quote I read, posted on Pope’s own website. Pope had done a “…study of a panel…”, drawn by Moebius, that featured a particularly suggestive image. Beneath the image was this quote: “A drawing can never be pornography. A drawing is an [sic] visual description of an idea and not a documented depiction of an actual event.” Graham had also done a redraw of the image, and beneath his own version had posted this: “I should mention that this is one of the rare Moebius scenes that I’ve never quite jived with since it’s a sexualized [shot] of a girl who looks like she should still have an umbilical cord attached. But I like how he did the hair and it’s just a drawing so whatever…”

This was an interesting thought to me. I asked Graham if he agreed with Pope’s quote, and he responded, “I agree with the spirit of the Pope quote, I don’t think it’s possible to do anything really harmful with drawings of fictional characters.” Graham then addressed the definition of pornography and said, “…yeah, I do think comics can be that. But I don’t regard pornography as such a bad word.” Regarding his reaction to the age of the girl depicted in the Moebius and Pope image, and his own version, Graham explained, “…I liked the drawing and wanted to test my mettle against how Pope had redrawn it. But I do think it’s good to bring up the negative aspects of sexualizing an image that looks so young. The discomfort is valid.”

In this whole Canadian customs debacle, one of the key points to consider is not the classification of the manga found on the man’s laptop as pornography, but specifically “child” pornography. It’s completely possible the customs official would not have reacted as he or she did if they simply considered it to be pornographic. The trouble arose because the “child” qualifier was added.

As I was trying to parse out my own feelings on the subject, I felt myself become very conflicted. Was it right to depict children in sexual situations? My gut reaction is to say no, depicting anyone underage is wrong, but then Graham answered one of my questions in a way that made it even more difficult for me. I asked if comics depicting characters who are obviously underage engaging in sexual activities should be considered “child pornography.” Graham answered, “I don’t think it’s fair to treat the depiction of ideas as the same thing as something involving real people.”

Was this where fictional comics – even pornographic comics that may or may not depict underage characters – could exist without harming actual people? If the comic is based off of photographs of real people it could easily be judged a case wherein someone was injured, and the material could be treated as such. Without the knowledge of actual harm to a real person, would it be possible to treat the material as anything other than ideas being expressed? Maybe the images would be distasteful to some, but prosecuting someone for their thoughts – even when they have taken those thoughts and made them visible through illustration – could be potentially unconstitutional. This also raises another important question: when do thoughts cease to be classified as such?

Perhaps the only certainty in all of this is that pornographic comics (and pornography in general) will inhabit a gray area in many minds. One of the most glorious aspects of the United States’ and Canada’s free speech laws simultaneously lends itself to almost every argument in favor of or against pornographic comics: our freedom of speech allows our opinions to exist, but it also gives some the idea that their opinion is the only in existence.

I’m still trying to figure out how I feel about porn comics. I definitely don’t think they should be banned, or result in someone going to jail, but the minute my head thinks this I begin wondering about the inclusion of child pornography. Even though the comics are nothing more than lines on a page, and may not represent actual people, I can’t help but feel that there is something wrong with portraying children in sexual situations. It is a situation where one problem creates a host of others. Who should make the decision about what age a fictional character is or isn’t? The creator? Or lawmakers? When there is no real person in existence, whose rights are being defended and/or impeded upon?

These questions will never have solid answers, and there will most likely arise more cases in the future where the subjective nature of art leads to confusion. As long as there is art there will potentially be those who are injured by it, as well as those who are entertained. Maybe this is one of the greatest attributes of art, the reason for its very existence.

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Comments (16)

What business did they have in searching his hard drive to begin with?

I got into this debate not too long ago. I'll sit this one out for now. You should end up with some comments on this post!

James Victor Von Hal

Ok so what about movies that have grown women as characters who are supposed to be 16, or 17 that get naked. Is that child porn, because the character is underage?

When it was discovered that Traci Lords was under 18 when she appeared in a number of XXX films they were pulled. They are, indeed, considered child porn. So the answe to your question, is, yes.

Austin Wilson

The Traci Lords case deals with a very real person. My article deals with illustrated characters which are not real, and that's one of the reasons I find it so interesting.

I read that a little more closely. Police use people who are over 18 that pose as under 18 to lure potential preditors online. Although the officer posing online as underaged, it's the understanding and intent of the offender that warrents a charge. I suppose that could be considered prescendent if this came up in court. Given the heavy handed application of Megans Law (e.g. a 19 year old landing on the list for dating a 15 year old) I suspect it would be interpreted as child porn.

Austin Wilson

Also, in James' scenario, he's referring to women or men whom are of-age playing underage characters.

Austin Wilson

I'm not sure Kyle. Apparently it's a pretty regular practice, which is scary and surprising.

Cory Arsenault

I'd be curious to know exactly what book it was that he had, the issue is most likely over the fact that it was depicting somebody under the age of 18.

Technically the "depiction" of a minor in a sexual situation is against the law here in Canada. That includes cartoon/comics and actors over 18 portraying a character under 18. Technically, Romeo and Juliet is contrary to Canadian law. The politician's are so paranoid about dealing with these issues though that nobody will touch any of these moral issues.

Which is why, believe it or not, the age of consent in Canada until two years ago was 14. Nobody wanted to touch it (and that's not even touching the abortion issue where Canada is the only country in the world with absolutely NO laws regulating it, meaning it is technically legal to have an abortion right up until the baby is due to be born).

All this to say, is that because politicians are too scared to deal with these issues, bureaucrats use the court system to change the laws by having them either struck down or amended by judges. To do this though they have to get themselves in situations where they know the law will be challenged and some person has to unfortunately be charged to do this.

With this in mind, please take note that:

1) it's a Canadian jail we're talking about and time awaiting trial counts towards time served, he's unlikely to do time (unless this material was REALLY obscene, see next point.

2) in these types of things the courts ruled that there is an "artistic merit" defense where if the material is deemed to have some kind of artistic value.

It's this defense that Customs is probably wanting to challenge by charging this fellow. The artistic merit defense was controversial because the person who who successfully challenged the child pornography law was a previously convicted child molester who within months of will his case in the Supreme Court, was caught molesting another child.

The defendant, Robin Sharp, successfully argued that his self-written short stories were of artistic merit. The stories involved the kidnapping and rape of young boys one of which infamously ended with the boy thanking Sharp for raping him as they eat at McDonalds.

I am almost certain, the motivation of these charges is to hope that the courts put some limitations on the artistic merit defense.

3) because of our previously lax age of consent laws, and lenient system of justice, Canada actually became a major center for child prostitution and pornography with sex tourists becoming a problem. The government is trying hard to reverse all this and that's probably what these charges are about.

Cory Arsenault

Well, he was crossing an international border so it is pretty common. Same thing might happen to me if I crossed over to the USA.

Cory Arsenault

Yes, in Canada it the depiction of a minor in a sexually explicit situation is against the law. This includes fictional characters, drawn or otherwise, and adult actor portraying under-age characters.

Austin Wilson

Thanks for the response Cory. You give some really awesome insight into how things are on the Canadian side of the border.

One of the things I wrote about over on Hideous Energy is that the laws do tend to have a gray area – or blatant gap, depending on your perspective – regarding works that are supposedly more "important" than others. Not only would Romeo and Juliet qualify, but as would Lolita, and Lost Girls, by Alan Moore.

Again, that's some awesome insight into how things work politically.

lol I am gonna try to comment as maturely as possible. Scott Pilgrim was awesome.

James Victor Von Hal

No offense Cory, when you said "it's Canadian jail" I lost it. Reminded me of the Family Guy spoof of Canadian Alcatraz.

on a serious note, I was not aware of Canadian law, and it seems their best hope is to plead a case for artistic merit of other cultures.

Cory Arsenault

Sorry buddy, I never saw that one. Did they all eat maple doughnuts and eat backbacon (I'm not even sure what backbacon is, I don't know anybody who eats it).

Jacques Nyemb

LOL…LOts of comments.

Comments are closed.