In this article Salil Mehra discusses the practice of dojinshi, or Japanese fan-made derivative comics, and its implications for copyright law in both Japan and the United States. He investigates the economic and social incentives fueling both sides of the dojinshi movement, making particular effort to understand the Japanese system in context of American copyright concepts of fair use and economic efficiency. He divides his dissertation into four parts, focusing on the ubiquity of comics in Japanese culture; a comparison of Japanese and American copyright law; the Japanese comic industry's tolerance of dojinshi's infringement; and the implications of this tolerance. After briefly discussing the artistic and economic history of manga and anime comics, Mehra compares American and Japanese copyright law and precedent rulings, specifically in regard to cartoon character copyright. He even attempts to evaluate dojinshi by the four factors of fair use analysis and court precedent involving cartoon character infringement, and finds that dojinshi would not pass by American standards. The similarity of the two copyright law systems, he offers, suggests that the grounds for a legal action against dojinshi are certainly evident should the comic industry choose to pursue it. The fact that the industry generally has not taken filed complaint against dojinshi artists, however, indicates that there are rational incentives for tolerating dojinshi. Mehra notes that culturally, Japan is a less litigious nation than the United States, and winning copyright cases are typically not nearly as lucrative as American ones; this is likely a deterrent to lawsuits in the manga industry. Furthermore, mainstream comic artists might tolerate dojinshi in order to appease their fan base--an artist could ruin his reputation among fans by filing a lawsuit against a loyal, albeit infringing, fan. Discussing commercial reasons to not litigate, he posits that dojnishi ultimately promotes the original work and raises new artists that can eventually enter the mainstream system with ideas of their own. He closes by calling for a reevaluation of the American notion that greater protection yields more or better intellectual property, as well as acknowledgment that a system akin to dojinshi may promote innovation and benefit collective industry.

Mehra's article is unique in its attempt to reconcile dojinshi with Japanese Copyright Law. His investigation of court precedent in cartoon infringement suggests that dojinshi is indeed a unique situation. By comparing Japanese and American copyright laws and demonstrating how alike they are, he proves that the creation and sale of dojinshi is not simply allowed in Japan because it has weaker copyright laws than the U.S.--other factors (cultural, economic, etc.) must account for the dojinshi phenomenon. Mehra is also unique among dojinshi scholars for making pains to demonstrate that the industry's tolerance of dojinshi has as much to do with the legal atmosphere of Japan as the commercial benefits of allowing the practice to continue. Furthermore, he emphasizes that with the dojinshi system, individual artist's interests are sacrificed for the collective good of the manga industry. In other words, an individual artist must agree not to protect his work from infringing artists in order to maintain the system that benefits the industry. This is all important for my paper because I investigate whether the fan policies of entertainment industries in Japan are transportable to the United States. The comparison of American and Japanese laws and cultural circumstances is thus critical to determining my argument.

 

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.

"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.