Материал: disser_arhipov

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(emphasis added - V.A.) statements of Baron Zemo about the need for a Holocaust, approval of the actions of the national socialist regime in Germany and Ku Klux Klan,” Roman Dmitrovsky told Kommersant, – [t]he expert acknowledged that the image of the villain is a caricature, and the work is a satire, but said that Holocaust, Nazism and racism cannot be objects of satire and humor. This supposedly will make the problem less significant, will force the reader not to consider it important, and, therefore, this is Nazi propaganda».146

This discussion is in direct relationship to the subject-matter of the study – whether or not such a subject of the relationship as the plot of the comic in the considered variant falls, especially since the corresponding controversial statements are not simply condemned by the author of the work, but also embedded in the mouth of the antagonist

(!). It is quite characteristic that the President of the Russian Jewish Congress, Yuri Kanner, expressed disagreement with the expert:

«“I have not seen this comic, but for me it is obvious that in such matters it is necessary to take into account the context. Let us recall the film “Seventeen Moments of Spring”, where Stirlitz is in the uniform of SS. And it would not occur to anyone to call it propaganda”, said Mr. Kanner. “I don’t understand what kind of expertise there can be if we are talking about art (emphasis added – V.A.)”. He noted that he sees nothing wrong with telling the story of the Holocaust in comics: “In our time, the presentation of the material must be such as to catch the target audience. If young people get knowledge from the comics, do not worry. It is important that this happens with the correct placement of accents”. Yuri Kanner also told “Kommersant” that you can joke “for a variety of reasons”, and even gave an example: “Once I was a member of the official Russian delegation in Poland and we visited the museum of the Nazi death camp in Auschwitz. At dinner, the waiter asked a famous Moscow rabbi what kind of water he preferred. The rabbi replied: “I usually drink water with gas, but it is in Auschwitz that I will probably ask without gas”. Everyone laughed; no one was hurt by this joke. In the subtle question of humor you should not be goodies”.147

Based on this seemingly particular question, the problem of the effect of the limits of the information distribution is revealed. The fact that there is such a discussion (and this is just one of many possible examples in this area) demonstrates the absence of a solution

146Chernykh A., Karpenko M., Mironova K. Rospotrebnadzor Defeated a Superhero. Part of the Comic Book about Deadpool is not Allowed to Print in Russia.

147Ibid.

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that is currently shared by the professional community. At the same time, we note that the above discussion is an exchange of private opinions, and not law enforcement practice.

By the way, the question of the content of the comics is relevant not only for modern Russia. In the USA, it appeared in the middle of the XXth century against the background of a wave of popularity of these publications. The authors of the article in Kommersant cite the opinion of an expert in the field of comic culture, the author of a thematic channel in the Telegram, Ulyana Chesnokova, who mentions the “Comics Code” of the USA of 1954.148 The creation of this “Code”, which was an act of industry self-regulation, was due to the fact that in a country often perceived as the “cradle of freedom of speech”, in some cities in the 1940s prohibitions were established and some comic books were burned publicly.149 In the 1955, the Senate hearings were held in the United States on controversial comics (with an adult focus). The hearings were linked to the F. Wertham horror comic “Seduction of the Innocent”, on the cover of which a drawing of a severed head of a woman was depicted.150 M. Costello leads the following dialogue between William Gaines (comic book publisher) and Senator Estes Kefauver:

«Kefauver: Do you think it is a good taste?

Gaines: Yes sir. I suppose so, for the cover of the horror comic. A cover in bad taste would depict a head taller so that it was visible that blood was dripping from the neck and flowing further down the body, so that the neck was stained with blood.

Kefauver: In your picture, blood flows from her mouth. Gaines: A little.

Kefauver: Blood is on the axe as well. I think most adults will be shocked by this».151

148Ibid.

149See: Costello M.J. Secret Identity Crisis: Comic Books and the Unmasking of Cold War America. New York: Continuum. 2009. P. 7; Nyberg A.K. Seal of Approval: The Origins and History of the Comics Code. Vol 1. Jackson: University Press of Mississippi, 1994. P. 26. – [Electronic resource]. – [Site]. – URL: https://books.google.ru/books?id=WGDschFUKRQC&hl=ru&source=gbs_navlinks_s (accessed: 15.01.2019).

150See: Wilson M.D. Comics Bogeyman: A Look Back at ‘Seduction of the Innocent’ // Comic Alliance. – [Electronic resource]. – [Site]. – URL: http://comicsalliance.com/history-fredric-wertham-seduction-of-the-innocent/ (accessed: 15.01.2019).

151Costello M.J. Secret Identity Crisis: Comic Books and the Unmasking of Cold War America. P. 7.

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As a result, the industry took the path of self-censorship and created the “Comic Code” on 26 October 1954.152 It is curious that the content of the Code reflects many of the prohibitions and restrictions of information legislation currently known with regard to the public dissemination of certain types of content, including the Internet. Let us note here a few examples. Thus, it is stipulated that “crimes should never be portrayed in such a way as to create sympathy for the criminal, distrust the forces of law and order or justice, or others have a desire to imitate the criminals”. According to the Code, “police officers, judges, civil servants and relevant authorities should never be portrayed in such a way as to disrespect the authorities”. Among other things, the Code states that “scenes or tools associated with the walking dead, torture, vampires and vampirism, ghouls, cannibalism and werewolves are prohibited”. Forbidden are swearing and obscene words, as well as words and symbols that have received “unwanted meanings”. A ban on mockery or an encroachment on any religious or racial group is established. It is noteworthy that the United States Comic Code also protects traditional family values, up to a ban on the ironic attitude to divorce or depicting this act as desirable. These are just a few typical examples. In general, the Code was used as a tool for self-regulation, allowing determining the attitude to information products and to third parties, including advertisers. By the 2000s, given the generally changed situation, publishers gradually began to deviate from the rigorous use of the markings provided for by the Code in favor of alternative and softer ways to classify content.153 However, this development did not affect the urgency of the problem itself, a characteristic example of which is the case of Castillo v. Texas, 79 S.W. 3d 817 (Tex. 2002).154 In this case, the court applied criminal penalty to the seller of comics “for adults” who sold one of these comic books from a special restricted section for

152См.: The Comics Code of 1954 // Comic Book Legal Defense Fund. – [Electronic resource]. – [Site]. – URL: http://cbldf.org/the-comics-code-of-1954/ (accessed: 15.01.2019).

153Abandonment / Comics Code Authority // Wikipedia. – [Electronic Resource]. – [Site]. URL: https://en.wikipedia.org/wiki/Comics_Code_Authority#cite_note-3 (accessed: 15.01.2019).

154See: CBLDF Case Files – Texas v. Castillo [Electronic resource] // Comic Book Legal Defense Fund. – [Site]. – URL: http://cbldf.org/about-us/case-files/cbldf-case-files/castillo/ (accessed: 21.02.2019).

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adults to an adult (as it turned out to be it was a policeman in civilian attire), making sure that he was of appropriate age. The prosecutor, however, voiced the “iron” argument that all the same, “everyone knows” that comics themselves, in any case, are intended for children.

At the same time, the creation of the Comics Code can be considered the beginning of a long process of developing self-regulation and self-censorship of American organizations, which is now mainly expressed in developing rules regarding content on various user platforms (for example, the famous YouTube155) and substantively, but adjusted for other priorities of the political and sociocultural context, is not much different from the content of the norms of public law in jurisdictions that follow mainly direct legislative regulation of informational relations, such as Russia.

§ 3.6. Jokes, anecdotes and parodies within and outside of the limits of appropriateness from the legal standpoint

In the previous paragraphs, we have touched some examples of the semantic limits of law that relate to the areas of artistic imagination. Besides that, apparently, there is one more area that is relevant to the problem, but it slightly differs from fictional works that are protected, to one extent or another, by copyright. It is the “unserious” – jokes, anecdotes and other similar cultural artifacts (let us draw your attention to the Internet memes of the XXIst century as well), that relate to the domains of humor and satire. One of the most sensitive day-to-day implications of the semantic limits of law throughout the whole history of humanity is indirectly expressed in a long-standing question of whether it is possible to be imprisoned for an anecdote. In this case the semantic limits of law define the line that demarcates humor or satire from insult or other similar juridical phenomenon

155 See: YouTube Policies and Safety [Electronic resource] // YouTube. – [Site]. – URL: https://www.youtube.com/intl/en-GB/yt/about/policies/#community-guidelines (accessed: 21.02.2019).

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connected to violation of non-property rights. The methodology of creating a descriptive model of such a demarcation resembles the dichotomy of “imaginary” – “real”. However, the real underlying dichotomy is somewhat different. What is fun is not necessarily something imaginary.

We have mentioned copyright, and in this case, it makes sense to recall such a phenomenon as parody. In the context of this work, we suggest to view the peculiarities of legal regime of parodies from the standpoint of copyright that presupposes certain degree of exclusions from the general rules. Thus, for example, Item 4 Article 1274 of the RF CC (“Free use of work in informational, scientific, educational or cultural purposes”) directly provides that creating a work pertaining to the genre of literature, musical or other parody in a cartoon based on other (original) work that was legally published, and use of such parodies or cartoon is permitted without a consent of the author or other right-holder of the original work, and without paying remuneration to the latter. What else this could be but an example of positive establishment of the semantic limits of law in respect of exclusive right? In an ordinary situation, where an object of social relationship is not a parody work (but “serious” ones instead), in order to create and, furthermore, use a parody (cartoon) of the original work, it would be necessary to receive the corresponding license form the holder of the exclusive right to the original work. In this case – not. The reason is that, from the standpoint of common sense, the provisions on exclusive rights cannot be applied to what is a kind of joke.156 Nevertheless, we shall pay attention to the case law that

156 It should be noted that the literature provides the view that the legal nature of parodies differs from that of derivative works, and that is why the legislation of various countries, including the Russian Federation, includes a “superexclusion” for parodies. Thus, for example, S. Zykov notes that “the fact that a parody is not subject to the treatment of a derivative or composite work also answers the question raised above about the reason for the absence of a parody in the indicative list of derivative works, i.e., created as a result of processing. It could be stated that processing covers the creation of a derivative work (translation, processing, screening, arrangement, staging, etc.), with the exception of a parody. A closer look also reveals a substantial difference between a parody and a processing: in the latter case, at least the internal form of the work remains. Changes take place in the external form of the work, for example, when translating from one language to another or when transferring a prose work into a scripted one. When parodying, the internal form undergoes significant changes, the system of images is presented in a new ratio in order to achieve a comic effect, which is a significant and necessary feature of the parody”. Further, the author refers to the experience of the United States of America and speaks about such a necessary