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.

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.