The focus of my research was participatory fan culture. I investigated the practices of dojinshi and fansubbing in Japan and tried to understand why these infringing fan activities are generally permitted. Dojinshi is homemade manga that is sold by amateur fan artists. Fansubbing (which I focus on to a lesser degree) is the practice of copying and dubbing Japanese animation into English. Then, I tried to determine whether the rationale that permits dojinshi and fansubbing in Japan could be imported to the United States to govern the treatment of creative fan endeavors like fan fiction and fan films. I've concluded that to allow a dojinshi-like commercialization of fan work in the U.S., we would have to refine fair use analysis to protect derivative work that complements (rather than competes with) underlying work.

 

 

In this article Nathaniel Noda discusses fan-based creative activities and their relationship to the copyrighted works that they draw from. He focuses specifically on the practices of “fan subbing” and “dojinshi,” but emphasizes the application of his findings to other derivative creative efforts (or “fan-based activities”), including the writing of fan fiction. Fan subbing, or the fan-based copying, translation, and circulation of Japanese cartoons, has been considered a key factor in popularizing Japanese animation in the west. Dojinshi, the fan-made and fan-sold cartoons that reuse characters from mainstream commercial manga, has proven to promote its underlying work and cultivate new artists for the professional manga industry. Both practices are technically illegal, but have been allowed due to their admitted benefits to the industry and, perhaps to a lesser degree, their ensconced position in our culture. Noda goes beyond other scholarly fan-related essays by arguing that the tacit agreement affording these fan-based activities is not enough, and that American fair use doctrine should be refined to acknowledge and protect the public benefits and incentives for authorship that fan-based activities provide. First he develops a formal definition for “fans” and uses it to form the two criteria for determining something as a “fan-based activity:” the activity complements the underlying work, but does not compete with it; secondly, a fan-based activity promotes the economic and creative incentives of the copyright holder whose work they are fans of. Noda then proposes that two changes be made in the traditional judicial interpretation of fair use to accommodate these innovative, arts/progress-promoting works. First, he posits that the first factor of fair use be refined so as to distinguish whether a work’s purpose is competitive or complementary. This, he suggests, would better align fair use analysis with the original aims of copyright law, and weaken the “commercial vs. noncommercial” distinction that never acknowledged that a commercial, complementary work (like these fan-based works) could actually, in some cases, benefit the author. Secondly, he offers that the fourth factor be applied to also evaluate a work’s benefit to the potential market of the underlying work. This is a much more nuanced, balanced evaluation of a work’s benefit to author and society than the traditional application of the fourth factor, which only looks for instances where a work could hurt an underlying work’s market.

Noda distinguishes himself from other fan culture scholars by urging that existing copyright law be revised to protect fan activities. He is also very specific, proposing criteria for deciding what constitutes fan activity and therein explaining why it is necessary to protect: it is innovative work that does not negatively affect underlying work. He then makes a compelling case for refining fair use evaluation, and is practical in suggesting how to implement it. Rather than attempting to force the change through legislative reform, an effort which would likely fail, Noda argues that the necessary change simply entails a refinement of interpretation at the judicial level. This is a departure from a number of other proposals, including suggestions that a dojinshi-like tacit agreement be attempted, or that publishers collaborate with fans to publish fan fiction anthologies. Because of its specificity and clarity, Jenkins's argument is the strongest one I have read for reforming and standardizing fan policy in entertainment businesses.

 

In this article, Daniel Pink presents a number of insights into the world of Japanese manga, focusing specifically on the practice of dojinshi, or the fan-based creation and sale of derivative manga, and its apparently unchallenged transgression of Japan's well articulated copyright laws. Pink investigates why publishers tolerate the sale of dojinshi, work that borrows the characters of official manga, in markets across Japan. He proposes several reasons for the stable relationship between manga copyright holders and the infringing party. First, dojinshi is practiced by many manga readers; allowing it keeps the fan base happy, and even nurtures new artists that eventually enter and sustain the mainstream manga industry. Secondly, dojinshi tends to promote the sale of manga that has inspired it. Finally, by monitoring trends in dojinshi sales, the mainstream industry can conduct a sort of free market research. Publishers' acknowledgment of these benefits of dojinshi results, Pink explains, in an unspoken agreement between publishers and dojinshi artists, whereby artists may sell their derivative work provided they only print limited editions of their work and do not attempt to compete with the manga from which they “borrow.” Pink offers that this approach to dojinshi—a tolerance and unspoken agreement that benefits both parties--is a viable business model for handling intellectual property, one which companies in the United States might do well to adopt.

This article explains the genius of the Japanese manga industry's intellectual property policies by showing how it successfully reconciles clever business with strict copyright law by simply choosing not to litigate. The industry's leaders recognize the benefits of fan infringment. They also understand that fans want the freedom to continue practicing dojinshi too much to risk it by attempting to compete with the mainstream market. They further realize that attempting to amend Japan's Copyright Law would be tremendously difficult and ultimately unnecessary as long as the current system works. The industry's initial response to dojinshi, that of watchfulness instead of hasty litigation, appears to have paid off. This recurring idea in my research has led me to contend that the tacit agreement resulting from the manga industry's watchfulness may ultimately be the most intelligent way to conduct business in a world governed by strict copyright laws that would be difficult to change.

 

Sean Jordan opens this blog with a common sentiment about fan fiction: that it is “lazy” and generally “bad.” He is not concerned here with evaluating the merits or shortcomings of fan fiction, however, but with the opportunities that the internet has created for the dissemination of fan fiction. Fan fiction is technically illegal, but is generally tolerated provided its creators do not claim copyright or attempt to sell their work. Here Jordan compares ordinary fan fiction to Japanese dojinshi, where such fan fiction is allowed and often taken quite seriously to create polished knock-offs of original manga. The problem with either type of fan fiction today is that the internet allows any fan author to show his work to anyone else in the world, giving them just as much power as an original author to promote his/her work. Fan fiction artists today could potentially distribute and sell fan fiction on a large scale while evading publisher scrutiny. Jordan muses on the potential legal steps that could be taken to prevent internet-enabled fan fiction from becoming such a massive infringement business. He envisions a system in which the publishers themselves print and distribute fan fiction, keeping the profits for themselves but granting the fan fiction writers exposure for their work. This would make a lucrative business out of a phenomenon that can hardly be prevented anyway: the demand for fan fiction is significant, he argues, no matter how bad it is. He concludes by pointing out the painfully obvious point that authors would likely object. If the authors could be persuaded to let fan fiction writers borrow and rewrite their intellectual property, then the system would work quite well.

This blog is significant in my research on fan-created derivative work for three reasons. First, it emphasizes the problem that modern technology poses by allowing anyone to show his/her work to anyone else in the world. Creative fan work may once have been tolerated because it was generally practiced at home and in small circles of fans; today, fan fiction is so widely available that it poses a more tangible “threat” to original authors and artists. Second, the article reflects an important popular sentiment regarding fan fiction, that it is lazy and generally quite “bad.” This stigma is likely to discourage original authors from allowing the commercialization of fan fiction, for fear of tarnishing their own reputation. Finally, the blog opines that a dojinshi-like system would likely not work in the west because authors prefer to have absolute creative control of their work than to see it emasculated by undiscerning fans, even if a good deal of money could come of it. This opinion opposes applied rationale of Japanese system, where the practice of dojinshi is now so entrenched that the manga industry accepts it and attempts to reap whatever benefits may rise from it.  In this sense, it contradicts (or at least complicates) my argument that Japanese fan policies could be successfully imported to the U.S..

 

In this article Henry Jenkins discusses the series of events that gradually elevated Japanese animation to prominence in the Western market. He suggests that Japan's allowance of early fan piracy was able to promote international expansion of the cartoon business when its own publicity efforts could not. Early attempts to broadcast Japanese animated cartoons in the US were rebuffed by censor groups who considered them inappropriate, and Japanese cartoons largely disappeared from American television. When videotape recorders became available, however, it became common practice for Japanese and American animation fans to tape their favorite shows and exchange them, circumventing both copyright laws and the limits of television broadcasting. In the US, many of the Japanese tapes were exhibited at science fiction fairs around country, and fan clubs sprang up to collect and translate these foreign cartoons in a practice called “fansubbing.” As Japanese animation gained popularity, some fan groups actually won the rights to distribute Japanese cartoons in the US and began the first legal distribution companies. Eager to see more work imported, fans collectively agreed to stop circulating pirated shows that had been licensed, so as to avoid competing with the official legal cartoons and encourage growth of the foreign market. In addition to fansubbing, fan clubs worked to translate and explain the unfamiliar cultural elements of Japanese cartoons to American viewers. They also worked to identify Japanese cartoons that could be commercially successful in the US. This has resulted in the introduction of new animated genres in the western market, and massive global growth in the industry from 1994 to 2004.

A few ideas here are central to my research.  Jenkins remarks that the Japanese industry's tendency to not interfere with fan practices has largely encouraged its own international growth and innovation. The industry has followed a similar policy domestically, too, largely supporting fan-made cartoons (called “dojinshi”) and using them to promote official work. Moreover, this article emphasizes the commercial advantages of thoughtfully monitoring a trend before taking action for or against it, as the Japanese animation industry has done. The industry has pleased its consumer base and ultimately strengthened itself by exploiting a form of piracy that it could not completely control anyway. In Japan, apparently, new technology is not considered inimical to business, a philosophy that western entertainment businesses might do well to embrace.

 

    This spring 2007 ComiPress article (a translation of Japanese newspaper Asahi Shinbun) reports the official apology of a dojinshi artist to Shogakukan, a publishing company that accused him of infringing the copyright of the manga intellectual property Doraemon. The artist also agreed to return a portion of his profits to the publisher. The amateur artist had allegedly sold over 13,000 copies of Doraemon—The Last Episode, a dojinshi manga which he claimed was the “final” installment to the Doraemon manga series. The manga was apparently highly regarded for its art and story, both of which seemed true to the original series. The original Doraemon series was never actually “concluded” because its author, Fujiko F. Fujio, died in 1996. Shogakukan considered the massive scale of the dojinshi comic to be infringing on its rightful market. An official for Fujiko Productions, the studio that handles Doraemon manga today, claimed that while the company allowed dojinshi sales among “dojin circles" (fan groups), the sales of the amateur manga were too significant to ignore.

    This article documents a significant breach in the tacit agreement typically honored by both dojinshi artists and the mainstream manga publishing industry. The dojinshi author's incredibly widespread sale of his infringing work appears to prove that the industry's tolerance of dojinshi sales is misguided. However, Shogakukan's handling of the issue suggests otherwise. The publisher did not immediately file a lawsuit, but rather complained to the infringing dojinshi artist. The artist, in turn, acknowledged his mistake and was willing to pay the company damages settled out of court. Rather than bringing the issue to court in a drawn-out, protracted lawsuit, the parties involved reached an agreement to maintain the balanced system that benefits both sides.

 

Anime music videos (known as AMVs) hold a peculiar place in American culture - they are arguably (in some cases more than others) flagrantly illegal and unfair uses of copyrighted material, yet are tolerated, even tacitly endorsed, by the copyright holders. This endorsement does not even come with any kind of control or regimentation, as it might in other fan circles. By a fortuitous mix of the original Japanese artists' treatment of copyrights and fan-made material (rather than simply Japanese copyright law), and the domestic anime market's existence and continued life and being owed to the loyal and proactive fanbase, AMVs are allowed to thrive. Their only tangible opposition (and not much at that) comes from the music industry's reluctance to allow songs to be distributed wholesale over the internet. Yet so far, AMVs as whole have been allowed to give people an artistic outlet in the manipulation of media that would normally be protected.

"Gainax: Past, Present and Future." Anime Tourist. 18 August 2002
In 2002, American website Anime Tourist conducted a convention interview with two of the founding members of the respected Japanese anime production company Gainax, Hiroyuki Yamaga and Takami Akai. The two discuss their current and upcoming projects at Gainax, provided some details on their past at the company, as well as explaining some of the themes and such of their more famous works. Finally they speak on American localization of their works and American fandom.

An audience member asks the creators for their opinion on the music videos made from their work by American fans. Akai seems not to have been aware of them (the translation perhaps makes it a bit confusing), but Yamaga appreciates the fan-made works. He discusses the often-pointed-to model of manga and anime creators getting their start in the industry by writing and drawing dojinshi, or unlicensed fan comics based on copyrighted properties: "as Gainax, they got their start doing similar stuff so it's very hard for them to say, ‘No, We won't allow that.'" As a company, they have to plead ignorance that such fan material exists or else even Japanese copyright law would dictate that they shut infringers down. He points to the line between fan/hobbyist and professional as the deciding factor in whether or not infringing work is worth going after legally; in the Japanese manga business, the line is extremely blurred as young artists very often earn their stripes and build their skill on dojinshi before tackling original projects of their own. Japanese creators such as these may not be aware of the American arm of fan's use of their characters and work, but they are used to letting such forms of use slide within their Japanese fan culture.

Mehra, Salil K. "Copyright and Comics in Japan: Does Law Explain Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law Review 55 (2002): 155, 182.17
Mehra explores the disconnect between Japanese (and American) written law and the tolerated success of dojinshi, a growing industry that could even be seen as direct competition for its copyright-holding cousin manga. Part of this issue is explained by the differences in which America and Japanese copyright law (especially that concerning character copyrights), though very similar on paper, are interpreted by courts and the common man. The few key differences include affording authors moral rights (Mehra points to the Konami case mentioned above as an example, given their ability to control how their characters are portrayed) and lacking a "generalized fair use provision." Mehra discusses the various reasons manga artists and copyright holders generally do not prosecute dojinshi artists; such reasons could include the social norms among artists where the good of the industry (in recruiting new talent, filling a niche unfillable by traditional manga, or catering to all its audience's favor) as a whole is placed before individual needs and the lower profitability of Japanese litigation (not to mention the average dojinshi author's common lack of real funds). Taking the dojinshi model, Mehra claims that "in some contexts, a certain level of fair use may help generate an economically efficient level of collective action;" in other words, allowing some level of infringement can foster a stronger and more creative artistic industry.

The reaction of the Japanese manga artist is examined here in relation to artifacts of fan culture. As manga and anime have penetrated foreign markets, it has brought some of that mindset with it, particularly to America. To begin with it sprang from fans' proactivity creating the American market itself, but the Japanese fan mindset has only been strengthened by the original authors' willful ignorance, and in some cases support, of classically infringing fan works. Despite the differences in American and Japanese case law concerning character copyrights, Japanese characters remain for the most part fair game for dojinshi, music videos, and the like on either side of the Pacific.