Hugo "Asterisk Awards": Legal Analysis Complete #SadPuppies
THE BASIC ISSUE
Shortly after every nominee for the 2015 Hugo Awards was given an "Asterisk" --- each one emblazoned with the Hugo trademark as well as phrases stating they were official nominee awards --- red flags began popping up.
These weren't presented as a joke. Instead,they were played completely straight, with a declaration that smaller versions were being sold to support a charity. It was stated that each Nominee had received an Asterisk. A slide was shown to the crowd, displaying the award with its marks and phrases. The opening speaker on the subject also noted the function of the Asterisk Awards:
"In the sports world, when we have an unusual year, we mark it with an asterisk."
That statement is technically true. It merely omits the fact that in sports, the asterisk denotes an award or accomplishment which is held as questionable (or even entirely invalid). When there is a short baseball season due to a strike, for example, the year is marked with an asterisk in record books, since someone who bats .386 in a season with only 15 games isn't comparable to a player with the same average in a full season. The same is true of sports figures who are believed to have cheated to obtain their achievements.
So the Asterisk Awards, as presented at WorldCon, officially mark every nominee in every category as having obtained their nomination via questionable or fraudulent means. Adopting additional flowery prose (as MC David Gerrold did onstage after the sports reference) may dress up the pig in a nice outfit... but it's still a pig.
THE COFFEE CLUB
Several lawyers of my acquaintance enjoy sitting around to discuss interesting legal issues over coffee. I met them during a previous federal case I was involved in, which itself had a lot of weirdness to it, during which we had a lot of great conversations about the minutiae of copyright laws. They did not (and do not) represent me formally in any way, so no, I'm not going to name them. None would appreciate getting hundreds of angry emails as the result of a casual conversation.
Three of these were interested to hear about the Asterisk Awards, much more so when I showed emails of the Hugo Committee Chair insisting they were utterly unofficial, originating with the aforementioned charity.
One immediately leaned forward and began asking some very pointed questions, like: who was the exact person making that statement? Was it a rumor or an official denial? Does WorldCon have a written set of bylaws for handling the Hugo Awards or is it all seat-of-the-pants?
Based on the info I had at the time --- and I did not then have access to video of the event, so a lot of it was hearsay despite some of it being from official sources --- two said they wanted to research the matter more seriously when they had a chance. The third said that if the initial assessment held up, he would like to provide pro bono legal representation.
A CLASS ACT
Here the discussion turned to how such a case would best be represented and who, if anyone, was damaged by the Asterisks. Three classes of possible litigants were identified:
1) The Voters, who had not been told at any point prior to the award ceremonies that asterisks would be assigned to any, let alone all, of the nominees. This could be construed as deliberately misleading and thus fraudulent, especially given the record number of voters who weighed in as a result of the "Sad Puppies" controversy which inspired the Asterisks in the first place (as stated in a Facebook rant by Gerrold back in April).
Given that all Hugo Award Voters had to pay for the privilege, that the differences between voting membership expenses was not broad, and that I was one of the Voters, judicial certification of my representation of the class as a whole was considered a shoo-in. See https://www.law.cornell.edu/rules/frcp/rule_23 for the technical details.
2) The Nominees, whose prestige and personal reputations were called into question by the core function of the Asterisks themselves.
Did any of these people WANT to sue? Would the class itself splinter if some members withdrew due to the controversy? Did the variance in categories, between fan works and professional, mean each would carry a significantly different value of damages and thus further split the class? This was considered too thorny a problem to hash out casually.
3) WorldCon itself. Despite the Asterisks clearly being marked and presented as official, the Hugo Chair was emphatic in denying this. Initially, his position appeared to be reinforced by the fact that no election had been held for "special awards", nor had there been any apparent clearance for use from the WorldCon Marks Committee, which is charged with their protection. The WSFS Constitution is very clear on both points.
If the Asterisks were indeed unauthorized, then WorldCon has a very strong case for various damages: their trademark was infringed, by a falsified "official" award, using WorldCon's stage to sell copies for an unaffiliated charity. As victims of fraud, they would not themselves be committing fraud. Of course, any such legal action would have to originate with WorldCon.
WHO TO SUE?
Each of the more than 5,000 Voters, including myself, paid a minimum of $40 to cast a ballot which the Asterisks could be argued to have nullified. The kaffeeklatsch consensus held that such a case could certainly go before a federal court without fear of summary dismissal.
At this point, there was nothing else to discuss about the Hugos. I took my leave, with the usual shaking of hands and folks promising to take a closer look "over the next couple of weeks".
They did. A few days ago, we met again and I showed the just-released footage of the Asterisks presentation. Even though this reinforced most of the points previously discussed, it turned out that the WSFS Constitution actually gave the Hugo Committee more leeway for action than previously thought. The only chance for a win was if WorldCon "commit(ted) seppuku" in their opening statements before a court.
First, giving the Nominees a "special trophy" is not technically the same thing as a "special award". They're still Nominees, regardless of the form their award takes. There was, therefore, no election needed to authorize the Asterisks.
Second, the WSFS Constitution authorizes the Hugo Committee to manage the overall election process as they see fit (excepting functions specifically mandated by the Constitution itself). They had the right to slap an asterisk on every award at the last minute, even after all the votes were in, with no obligation to inform Voters either before or during the ceremony. Even "in the sports world", award committees have always reserved the right to make such judgment calls.
Asterisking the Hugo Nominations is therefore perfectly legal, UNLESS the presentation was unofficial... which WorldCon can deny at the drop of a formal filing. All three lawyers were convinced that the second WorldCon obtained legal representation, they'd be advised to throw their Hugo Committee Chair (and all of his emails to me) under the biggest bus they could find. While this would essentially invalidate the 2015 Hugos entirely, it was pointed out that the organization's alternatives would be far more disastrous.
Because WorldCon had complete control of the venue and process, but did nothing to prevent (or even denounce) any illegal use of its trademarks therein. Failure to defend a trademark against known infringement endangers the trademark.
That's entirely aside from the issue of fraud, which comes in under the heading of deliberate misrepresentation. WorldCon's Hugo Chair isn't saying that they are invalidating the Asterisks after the fact... instead, he's saying the Asterisks were never legitimate to begin with. Yet at the actual event, they were publicly represented as THE official Nominee awards. Rather than treated as jokes, they were lionized by those on stage as representative of SF/F fandom as a whole.
The denial itself is an act of fraud, affecting all 2015 Hugo Voters, but in terms of public record the World Science Fiction Society has given every appearance of endorsing the Asterisk Awards as official. Were I to file action, they'd only need to respond with verification of their existing public position. That would invalidate any claim of damages I could make. Only if they formally back up their Hugo Chair do they risk anything.
As none of the lawyers I spoke to believe they'll be that stupid, none want to accept the case at this point.