Chicks On Anime
Copyright Enforcement

by B. Dong, S. Pocock, May 5th 2009

About the contributors:

Bamboo is the managing editor for ANN, and writes the column Shelf Life.
Sara is an animator who's also released her own independent short film.

This week, our special guest is Evan Flournoy, one of the copyright specialists at Funimation. He answered some of our questions regarding copyright infringement and enforcement, and will be joining us in a few weeks to answer any follow-up questions that may pop up in the forums, as well as talk about bootlegs and gray-market goods. So, if you have any questions you'd like Evan to answer, please head over to the forums. Thanks for reading!

Bamboo: Evan, can you tell us a bit about your job, and what you do?

Evan: Well, currently my position is Manager of Brand Protection and Rights Enforcement with FUNimation Entertainment. Among other things, I manage Funimation's "Infringement Specialists" and guide Funimation's enforcement activities. I should note, though, that many of the decisions of which brands to protect most stringently at which times and on which sites, come from Marketing.
Sara: Can I ask what "Infringement Specialist" means?
Evan: Sure. An Infringement Specialist is one who polices the web at large for instances of infringement against our intellectual property.
Bamboo: What do their "enforcement activities" consist of?

Evan: Well, part of their duties include policing websites that stream user-generated content, such as YouTube, Megavideo, Veoh, Dailymotion and MySpace. Additionally, they monitor forums that discuss fansubbing, as well as fansubbing sites themselves, IRC channels, torrent sites, direct download sites, linkdumps (usually blogs), etc. If sites ever seem too clean, they can always hit the search engines to look for more. With new titles we're fairly proactive like that. Beyond that, they check out dozens of pirate sites submitted by fans.
Bamboo: With digital distribution at the forefront now (online streams, iTunes downloads, XBox marketplace), has your job changed at all? Are there new challenges to deal with?

Evan: Not particularly. I've only been involved for about a year and a half. I haven't seen serious shifts in the industry in that period.
Bamboo: Some of the arguments that fans still have regarding online streaming is that it's often restricted to users in certain countries. Is that something from the licensor's side, or is that something Funimation asked for?

Evan: That mandate comes from the licensors. But unfortunately, U.S. companies usually take the blame for it. I get the sense that all major content owners, even beyond anime, structure their agreements in similar ways—any given agreement will be restricted to certain territories.
Sara: In terms of how this affects with policing, does your infringement team police non-North American fansub and streaming sites?
Evan: Absolutely, but only if the content is made available to the U.S. or another territory within our license agreements.
Sara: And what happens if you find illegal content on a foreign country's site? Do you deal with it the same way?
Evan: We deal with foreign sites a little different because the Digital Millenium Copyright Act doesn't really apply outside the U.S. Luckily, there are some international agreements (Berne Convention, WIPO Treaty) that give us some authority in foreign jurisdictions. Depending on the country, foreign hosts are often more than willing to help us out. ISPs in countries that are less willing, or rather, instances in which we've found ISPs to be less willing to cooperate, are usually ISPs hosting torrent sites. In the U.S., contributory liability for copyright infringement can extend all the way to torrent sites, if, for example, the ISP has knowledge that their site is facilitating the exchange of specific infringing media. A lot of foreign jurisdictions don't read it that way. But they will comply if they're actually hosting the infringing content itself. I made that distinction clear, right?
Sara: I think so. But I want to make sure I understand everything, so let me use an example. Let's say your teams finds a video streaming site in Spain or something, and they host torrents of Fruits Basket—but it's not the Funimation's copy. Let's say it's the original fansub, subbed in Spanish or something. Does Funimation legally have rights to demand the removal of that content from the web?
Evan: Yes. If it's available in the U.S. Here's why… Motion Pictures can have many layers of copyright, especially anime. As licensees of the "underlying" anime, we are "copyright owners" as defined by the Copyright Act. If someone is distributing, reproducing or publicly performing that anime in the U.S., even without subtitles or audio of any kind, it constitutes an infringement of our intellectual property rights.

Next layer. As authors of the translations/subtitles/dub tracks, we also hold copyright in that. Those translations/dubs, btw, are referred to as a derivative work in the Copyright Act. The right to even create a derivative work is another right defined in the Copyright Act, which makes the mere act of creating English subtitles, in the U.S., for a show in which we have such rights, a violation.

Bamboo: So what about fan videos? Say, AMVs? Where does that fit in? Would the Japanese companies have jurisdiction over that, or is that your territory?

Evan: For elements of media that are owned by more than one party, such as the underlying animation, enforcement usually falls upon the party with rights for that territory where such use takes place. Regarding AMV's and fan videos, we don't mind most fan videos, including AMVs. The main reasons for this are that they can often serve a promotional purpose, and legally, they can sometimes constitute Fair Use. The basic thinking going into fan videos is thus: if it whets the audience's appetite, we'll leave it alone. But if it sates the audience's appetite, it needs to come down. Does that make sense?
Bamboo: It makes sense to me, although it seems that Japanese companies don't have the same attitude. Can't they, as copyright holders, shut down American AMV makers?

Evan: I understand that in Japan, fan fiction of all kinds is not only accepted, but encouraged. Fan-created manga, as I'm sure you both know, is apparently huge there. As for the authority of the Japanese to enforce their rights against AMV creators in the U.S., technically, yes, they could. I would be astonished if they ever did so on a large scale. And again, the AMV creators could argue the affirmative defense of "fair use."
Sara: But does artist reproduction fall (a la fanfic, doujin) under a different category of copyright than... like, taking straight clips of the existing animated material for AMVs?
Evan: It's in a different legal category. AMVs are "direct infringement" but fan fiction is a violation of derivative work rights.
Sara: How far does one have to go to violate Fair Use? Right now there's a bit of a scandal surrounding Shepard Fairey and his adaptation of an AP photograph for his iconic Barack Obama portrait—what is your take, and is there some sort of anime equivalent?
Evan: It's hard to be brief about fair use. I recently gave a presentation on intellectual property issues in documentary filmmaking and the bulk of it was about fair use. It lasted an hour and a half. But I digress! It's not about violating fair use. It's about violating copyright. To get specific, legally, even fair use is infringement. This is because the use is unauthorized and ostensibly violates one of the exclusive rights of a copyright owner laid out in 17 U.S.C. § 106.

Anyway, fair use is an affirmative defense to infringement. This means that the burden is on the defendant to prove fair use. The factors of fair use are laid out in § 107 of the same title of the United States Code that I referenced before. Of those factors, the big one is #4 "effect of the use upon the potential market for or value of the copyrighted work”… hence our whet vs. sate the appetite approach. And the new use generally has to be for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Parody and satire fall under criticism/comment. New uses that are sufficiently transformative and do not harm the potential market for the original work also tend to get by.

Bamboo: So if someone uses someone else's work and makes a crazy profit—would that violate fair use? What if they were using it for fundraising? Or is that dependent on that particular court?

Sara: Yes, let's say someone, for some reason, made tens of thousands of dollars selling AMVs filled with Funimation material—"Fair Use" kind of sounds like an empty defense in that case.
Evan: It doesn't vary a whole lot from court to court... and yes, the crazy profit would seriously weaken a fair use argument.
Bamboo: Going back to the territory bit, and how far your legal reach extends, I'm still a bit confused. Say Japan has rights for East Asia. Say Funimation has rights for Canada and the US. Can you shut down a Spanish fansubber in Madrid who is fansubbing Fullmetal Alchemist in Spanish? Even if you don't have a licensing agreement for Europe? Let's assume that no one else has that license either.

Evan: We can't shut them down just for fansubbing in Spain without rights to Spain, but we can certainly shut them down for distributing those fansubs (or making available for distribution) to the U.S.
Bamboo: So does that mean a US server has to be hosting it? Or simply that people in the US are downloading it from the Spanish server?

Evan: Just downloading it from the Spanish server is enough. It's up to the ISP in Spain to geo-block visitors from the U.S. Anime companies in the U.S. actually have the same burden. The internet is inherently unrestricted for inter-country traffic. So we have the task of employing the technology and managing the logistics of geo-blocking the content that we distribute. Those two hurdles, technological and logistical, can be quite time consuming. It's understanding why most ISPs don't bother.
Bamboo: As anti-fansubbing as I am, it seems kind of unfair that someone in Seychelles wouldn't be able to watch Fruits Basket unless they forked over some hefty shipping fees to get R1/R2 DVDs from Amazon.

Evan: I understand that position....let me tell you how I tend to look at it. First, I totally remove myself from the anime world. I think about myself as an artist instead, and I think about the oldest intellectual property quote that I know, mildly sexist though it may be:

"The sweat of a man's brows and the exudations of his mind, are as much a man's own property as the breeches upon his backside" (Lawrence Stern, 1853)

So if I make some kickass music video (trust me, I've made tons...I think one sold at least 50 copies… sad…) and someone in Seychelles wants it...I don't think it should just be ok for that person to take it for free. Maybe that's not a great example...but it's personal. To me, this does come down to artists' rights. Does there need to be a better means of distribution? Sure. Should anime be available everywhere? That would be great! But does a person have a right to freely enjoy the art that someone else created? I don't think so....

Sara: Hm. I'm also an artist, and I definitely appreciate copyright law and want my intellectual property to be protected, but I think I'm more on the fence when it comes to this issue. Where my product is sold and able to turn a profit, I definitely don't want the work ripped off and distributed. But some person in Seychelles who may never have heard of my film had it not been for the 'net in the first place? I don't think I'd care as much. Then again, at this point in my career I'm more interested in getting my stuff out there than turning a profit.
Evan: I hear ya there! While I'm adamant that I don't feel that "it's ok" for a person to enjoy my art for free and while I certainly don't think the world over has a right to enjoy my creations for free, I would probably be quite flattered if something of mine was taking the internet by storm and I wasn't getting a dime from it. Bear in mind, even with anime, enforcement is almost always up to the artist. I make this point because I don't think that it's the law that is broken. And it's a point I have to state because I didn't necessarily feel that way before studying it for several years.
Bamboo: There's also that age old argument of, "They get anime for free in Japan!" and now "They get anime for free in the US!" We all know that they have to watch ads, pay for broadband, etc, but that argument remains. What's your response to that?

Evan: Ahh yes, "free" as in "free TV." Well... the artists have to get paid. I don't think they care if they're being paid by the advertisers versus being paid directly by the audience. It's a bit of a specious argument in my opinion. It's like complaining that there's free health care in France.
Sara: *laughs* I actually make that argument all the time in advocating legislation reform here, regarding health care.
Bamboo: Let me ask you the $1,000,000 question: What are our alternate options besides fansubbing? Are there different ways to monetize this content, esp. for those who live outside of the supplied territories? What would you do?

Evan: We're making a huge effort with YouTube right now to video fingerprint our content for monetization. Not all of it, but a great deal. I think many fans will appreciate that it's not being taken down anymore, but monetized instead. As for what I would do...
Bamboo: Wait, wait. Can you go into more detail about the YouTube thing? I'm not sure I understand what you mean by "video fingerprint your content." Is that kind of like what Kodansha is doing over in Japan by letting users use their content for AMVs, provided they get the ad kicks for that page?

Evan: Well, YouTube obviously earns tremendous ad revenue from users viewing content that was not created by YouTube. When a content owner claims the content, YouTube offers to either take it down or to give a share of the ad revenue to the creator. A content owner can upload their content to YouTube for "video fingerprinting" and then set options as to what YouTube should do with "user-generated content" that matches the video fingerprint. The the user requests that such matched content be "monetized" then that's exactly what YouTube does: they cut the content owner in on a share. Mind you, content owners can only do this monetization within territories where they have rights. An outright owner can monetize everywhere, but a licensee, such as Funimation, can only monetize within specific territories.

As for the "what would I do" question. I can't put myself in the shoes of a licensor... and I probably shouldn't answer a million-dollar question without receiving $1mil for it.

Bamboo: Did you start doing simulcasts because of fansubbers?

Evan: Yes.
Bamboo: Is it working? Are you winning?

Evan: We're getting lots of views!
Bamboo: Are you cutting into the fansubs?

Evan: Yeah, a great deal of the fansub audience is watching our simulcast instead. But it's hard to tell if that's simply because we've really pushed to keep down these latest fansubs.... My question to you is, why would you watch a fansub rather than our simulcast?
Sara: I wouldn't. But then again, I don't love ridiculous colored fonts that dance around.
Bamboo: Some of those fonts are really nice. But then again, I don't watch fansubs, so I'm the wrong person to answer this question, but I'll pose it to the readers. The last time we asked, many of them said, "Because I don't live in the US." So, unfortunately, that's a big issue. In fact, an overwhelming majority of users said that they'd watch the simulcast if it was available in their country.

Evan: Yeah.... I reckon that is a big issue. One that is, unfortunately, out of Funimation's control.

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