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..

    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.