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, 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.

 

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.

 

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.