subscribe to this page
Joshua Daniels describes the negligence of licensing companies to account for fan sentiments towards preservation of original works as a market failure that can be remedied through an expanded Fair Use statute. He argues that society has an economic interest in maintaining the integrity of works, and therefore the harm caused by licensing companies that heavily edit or censor these properties can be understood as a negative market externality. In order to correct this market failure, Daniels proposes that the law must channel incentives such that licensing companies are forced to take into account fan interests in preserving these works. However, he also cautions that there is a substantial risk of destroying the market entirely if too broad of an approach is taken to remedy the failure. Therefore, he proposes legalizing fansubs to an extent under a right of public access to foreign works in their original form when there is no other practicable legal means of obtaining that access. In this way the competing interests of rights-holders and fans are balanced in favor of public access.
Daniels recognizes a demand for authenticity as a particular characteristic of anime fandom that promotes a cultural goal. Insofar as some fansubs promote this end, we may consider legalizing their practices in order to incentivize companies to distribute an original version of the works they license. Indeed, many fansubbing groups, such as Live-Evil, work specifically with older anime that were heavily modified when broadcast in the U.S. market. Daniels's proposed model, however, would likely create undue burdens for companies that are attempting to localize otherwise unintelligible cultural shows. While promoting public access to works is a valuable goal, Daniels seems to prioritize cultural over economic production when instead both concerns should be balanced.
13. Kirkpatrick, S. (2003). Like holding a bird: What the prevalence of fansubbing can teach us about the use of strategic selective copyright enforcement. Temple Environmental Law and Technology Journal, 21, 131-153.
Sean Kirkpatrick uses the examples of fansubs and AMVs to argue that “entertainment copyrights works best if grasped loosely.” In his article, he undertakes a fair use analysis of both these works: (1) fansubs are non-transformative and are created for the exact same entertainment value as the originals. Therefore, the first factor weighs against a finding of fair use. (2) anime is a creative work and therefore falls into the core of copyright’s protection. The second factor weighs against a finding of fair use. (3) fansubs copy the work entirely at a qualitatively-similar level. The third factor weighs against a finding of fair use. (4) the likelihood of harm for either direct or derivative markets is difficult to determine in this case. However, since fansubs share their purpose with the original work, the potential for harm would likely be viewed as greater and therefore the fourth factor would most likely way against a finding of fair use. Kirkpatrick does not entirely concede the fourth point, however, and argues that fansubs parallel the Betamax case of time-shifting. In this sense fansubs, like taped television shows, are not used to build collections or libraries, and therefore would not impact future sales. Instead, he argues, “the interests of fans and corporations need not be mutually exclusive” and “cooperation is a far better way to promote the profitability of one’s copyright than bullying.”
While Kirkpatrick’s fair use analysis is mostly correct, industry representatives would justifiably take exception to the parallel between fansubs and Betamax. Not only are the technologies significantly dissimilar, but fansubs are produced for an audience that would otherwise not have access to these shows and therefore does diminish the value of licensing the property to distribute in the U.S. market. While these objections are important, they do not undercut Kirkpatrick’s conclusion that cooperation between fans and industries will be necessary to achieve the end goal of promoting anime, which is in everyone’s interests.
Call#: Van Pelt Library KF2979 .L47 2004
Professor Lawrence Lessig has been the most eloquent proponents of the Free Culture movement since its inception. He argues that recent copyright laws abandon a tradition of free creative expression that has existed throughout American history and instead impose undue restrictions that have chilled the growth of culture, especially at this moment when digital technologies have enabled audiences to participate in making their culture unlike ever before. Lessig was particularly outspoken about the failure of copyright to distinguish between commercial and non-commercial lifetimes of works, the latter of which is important and valuable for the development of culture. In this context, copyright does not fulfill its goal of promoting progress, but rather burdens free expression and does harm; access to culture is a value which the current market system and copyright regime have inhibited.
Although Lessig does not address fansubbing directly, his arguments about the value of access to non-commercial works can logically be extended to this domain. Typically fansubbing groups only work on unlicensed series, which are only distributed in Japan and therefore unavailable to English audiences. By prohibiting altogether the translation and reproduction of these works, copyright law is not incentivizing their legal distribution, but rather restricting cultural growth by indiscriminately denying American audiences any access to an entire medium of expression on the basis of preserving the rights-holder’s complete control over distribution even if they are not commercially exploiting the work. In this case copyright has not balanced the interests between creators and the public, but rather established a view of creative works as absolute property rights that creators are entitled to perfectly control. Neither the Constitutional basis nor the long history of copyright law supports such an interpretation, which has been shown to be deleterious to the purpose of expanding culture and promoting creativity.
tagged anime copyright fair_use fansub by jegarcia ...and 6 other people ...on 25-NOV-08
Jordan Hatcher describes the fansubbing community as sitting at an interesting boundary between creative production and file-trading. He notes that fansubbers are guided by a cultural goal and attitudes that exist within the community itself, comparable more to the FOSS movement rather than typical pirates. After recognizing these nuances between fansubbers and pirates, Hatcher asks, “Do our laws stifle creativity and sharing to the point where it harms society?” While there are certainly cultural benefits created by the fansubbing community, there also exists the potential to replace market need for official licensed translations, thus causing an economic harm to the artists and creators of these works. He argues that a fair use defense based on these benefits, such as market enhancement or interest-building, are undercut by the reality of fansubbers' actual practices of providing a substitute product. While Hatcher concludes that it is still too early to come to any conclusion about the benefits of fansubs, he believes that the relationship between fansubbing communities and the anime industry will “reveal a great deal about copyright in a connected digital world.”
Hatcher challenges the model of fansubbing as an activity that creates growth and benefits for the anime industry by undercutting the traditional market enhancement argument that fans usually propose. Copyright should not be frivolously violated because protection of creative products is a culturally beneficial instrument that provides creators with incentives to produce new works. Therefore, in order to produce a culturally beneficial arrangement that incorporates the benefits of fansubbing communities while minimizing the harms to creators, both groups must respect the value each respectively generates and come to an agreement that meets their common goal of promoting anime. Such an agreement is possible because, unlike typical pirates, fansubbing communities operate around a code of conduct and thus have demonstrated a level of compliance with industry requests not seen in other areas of the piracy debate.
Sean Leonard extensively documents the history of anime in the United States from 1976-1993 in order to demonstrate how fan communities acted as proselytziation commons that shaped the formation and initial operation of the anime market. Leonard defines a proselytization commons as a free exchange of media in order to advance a directed cause, namely the promotion of anime to a wider audience. While these fan activities infringed on the copyright of Japanese companies, the companies nevertheless responded with either strategic ignorance – that is, they sought benefits that result from unauthorized use – or plainly dismissive ignorance. Leonard’s legal analysis classifies the fansubbers’ activities as producing a desirable outcome, but not being sanctioned by law. Since current copyright law prohibits these culturally beneficial activities, Leonard proposes a revision that excuses unauthorized reproduction of foreign works until they are actually licensed and distributed in the domestic U.S. market. He grounds this revision on the early American tradition surrounding copyright law based on an originalist interpretation of “limited Times” and “promote progress” in the Constitution.
Leonard’s analysis of the history of fansubbing presents one of the strongest rebuttals to the argument made by many media industries that the progress of culture requires “perfect control over copyright from fixation to expiration.” Grass-roots distribution of anime through fan networks not only promoted cultural growth by acting as a proselytization commons, but also created a multi-million dollar market for these products as well. Therefore, the example of fansubs demonstrates how culturally beneficial activities that in fact meet the goal of “promot[ing] progress” are nevertheless unjustly restricted by rigid copyright laws. The fact that current copyright laws are in fact having the opposite of their intended effect should prompt citizens and lawmakers to consider exemptions, such as expanding Fair Use, that legalizes these activities.
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.
tagged Gainax Japan anime copyright dojinshi fair_use manga music_video by amcarl ...on 28-NOV-06
Lessig writes about the recent development of a record company, Wind-Up Records, requesting AnimeMusicVideos.org (perhaps the largest online collection of anime music videos and "AMV" artists) to remove all links to music videos containing music by their artists. These artists included Evanescence and Creed, bands popular among fans and with a large number of music videos on the site, roughly 3,000. He points to the AMV movement as a sign of the growing read-write culture allowed by the internet and computers that new generations are increasingly participating in. Where content owners try to enforce a "Read-Only" environment where viewers/users can look, but not touch, Lessig advocates the development of creativity and benefits thereof for those (often young) fans who take it upon themselves to add to the artistic tableau of a medium. He even relates a personal anecdote about his son, in which the only way he was accepted to a prominent university was by showing them the AMVs he had made as an example of his artistic talent. Lessig sees the struggle between copyright holders and young, artistically motivated fans as the new battle to be fought, and one in which it should be easy to see which side is in the right. Of course, according to current US copyright law (backed by copyright holding corporations) such employment of "Read-Write" culture is illegal. The internet, however, has afforded both an opportunity to put such artistic expression on easy display and an at least temporary hurdle for content owners to leap in order to stomp down on "unfair" uses due to its expanse and level of anonymity.
tagged Japan Lessig anime fair_use music_video read-write by amcarl ...on 28-NOV-06
Hatcher examines the workings of the American anime industry, paying the most attention to the history and physical process of fansubbing. Fansubbing is the process by which fans take Japanese anime (taped from broadcast television or DVD/home video), translate it and edit the video to include their own subtitles. Fansubs used to be distributed on VHS either in stores or among fan clubs, but are now almost exclusively found online. Hatcher suggests that the anime industry, though it has unquestionably benefited from fansubbing and other forms of high-level fan involvement, is now "held hostage by the internet and their otaku-consumers." By now professional licensing and localization companies can do much of their own advertising and market research due to the growth and age of the domestic marketplace; yet such companies know that to crack down on the core loyal fans will almost certainly result in a huge backlash from those on whom they rely most. In contrast to common internet "pirates," fansubbing groups commit infringing acts in the open (as publicized on websites or individual named in credits attached to their work) and are confident in the moral high ground of their actions (if a work is not yet licensed in America, it is seen as "perfectly legal" to make it available in fansubbed form, for example-despite international copyright laws); the common conception of "anime fair use" makes many technically illegal uses practically immune to legal retaliation
The almost forced acceptance of the fan use of anime in America, in order to maintain loyalty and relevancy among fanbase, makes anime music videos relatively easy to allow for domestic copyright holders. A lawsuit that attacks a now established tradition within the community would alienate much of a company's fanbase, driving them to other sources-including illegal ones if nothing else is available. Given the companies' general tolerance of (or lack of legal action against) the availability of full episodes or movies online, music videos are a much easier sell as "advertisements" for their products as opposed to replacements or illegal derivative works. And given the industry's heavy stake in the convention scene, it is clear that the community aspect of anime fandom must be maintained and courted in order to stay viable.
Leonard's paper on American fans' use and distribution of anime goes into great depth on the legal issues raised, and often ignored, in regards to copyrighted works. The original Japanese copyright holders spurred on American fan-imports and fansubs by "abandoning" the market early on; in this way it was law-breaking American fans, clubs and conventions that created almost single-handedly what is now a visible and profitable market for the Japanese owners and the American licensors. Currently, though the Japanese owners do finally play in the American marketplace, they are nearly as willfully ignorant (in practice) of fan infringement than they were when America was still written off as an impossible market. But while first this ignorance was a result of their not thinking any American infringement could possibly hinder them financially, reasons for this now include the historical and continued support and "free publicity" for anime that American fans would not be so willing to embrace legitimately had it not gained buzz from prior illegal distribution among fan networks. Yet Leonard outlines all of the various ways that obtaining, translating, distributing and showing fansubs break any number of American and international copyright laws. Though fans often cite fair use as a defense for their actions (though a case has never been brought to court), Leonard dismisses all of the potential factors that would constitute fair use save for the "purpose and character" in the commerciality of fansubbing; in this case, fans often do their work for no profit and as a courtesy to fellow fans. In every other sense, their use is wholly unfair.
Here we see the rough legal guidelines that both Japanese and American anime copyright holders tend to adhere to when dealing with fans. In general, fan's use of anime is forgiven and often ignored, unless it exists in direct competition with legitimate localized releases. Anime Music Videos (not mentioned by Leonard) are another, altogether less potentially dangerous (than importing and fansubbing) form of "free advertising" for anime and of strengthening the fan networks that built and maintain the American anime audience. Again, Japanese copyright holders are shown to display a willful ignorance of American fans use for the most part.
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.