The Law of Anime Part II: Copyright and Fandomby Sean Thordsen, Esq., Feb 15th 2013
SESSION 2 – COPYRIGHTS AND THE FANDOM
Last time we covered what a copyright is, how it is acquired and what rights it bestows on the creator. This time we will cover how this impacts the world of anime fandom – from fanart to cosplay to anime music videos, the world of the anime fan is laden with risks of and actual copyright infringement. At this point, copyright infringement is practically engrained into the culture. But I'm getting ahead of myself, before we can cover the aspects of the anime community we must first cover what determines if a copyright is infringed.
Infringing on a copyright
A copyright is infringed in the most direct manner by literally copying the work and reproducing it for sale or distribution. The anime community is most familiar with this through the distribution of fansubs. However, a copyright may also be infringed by the third party use of any one of the creator's “exclusive rights” which were covered last session. In brief, if a third party distributes the work, reproduces the work, performs the work, displays the work or creates a derivative work then they have infringed upon the creator's rights.
Most of those rights are obvious but one in particular needs further elaboration – this is the right to create a derivative work. Strictly speaking, a derivative work is any work that is based on or utilizes the creative aspects of the original work. Star Wars has been making frequent use of this right for years with Star Wars novels, TV series and video games. The additional movies such as Empire Strikes Back are considered a derivative work of the original work Star Wars. However, a derivative work is not limited to just the use of the original characters and can merely be something occurring within the same universe. Code Geass: Akito the Exiled is a prime example of a derivative work; it does not star any of the original characters and merely occurs within the established universe and canon which is Code Geass. Thus a derivative work can be anything using the original characters or placed in an existing universe.
So how does this affect fans?
The nature and broad rights a copyright creates affect fans a lot. In pretty much every aspect of the anime community there is a lingering risk that a copyright may be infringed. For the sake of clarity I will touch on each of these separately as, although many of them involve similar traits, their role in the broader scope of anime fans greatly impacts the analysis.
Fanart and doujinshi of actual characters can be considered a derivative work under the copyright holders’ rights. As a result, the production of artwork using copyrighted characters can be considered an infringement. This includes work depicting multiple characters from different works as several infringements. Thus crossover doujinshi or fanart infringe on multiple copyrights, once for each work involved in the crossover, and the artist can be sued by any of the creators. This is not just limited to having the actual characters (i.e. drawing fanart of Transformers and My Little Pony on the same image) but includes even more subtle references (i.e. drawing the cast of Tiger & Bunny in the costumes of the Avengers) as infringing on more than one copyright.
Absent a parody or satire defense (which I will cover in another session) the depiction of the characters and any subsequent sale of anything depicting them is a violation of copyright and actionable. This is not often pursued as there are both public relations (PR) reasons and economical reasons to consider with the sale of such items. Although fanart is an unlicensed third party product and is often sold for profit in fan markets, through Deviant Art, or at artist alley's at anime conventions the general profit on these is limited. Suffice to say the average fanartist is not making a living off of selling drawings of someone else's characters. For this reason it would generally be bad PR for a company to sue a fanartist or try to shut down artist alley as it would look like a clampdown on your primary consumer base over something that is (relatively) harmless. The secondary reason is that it is highly uneconomical to sue such persons as the profit being made is minimal and the costs of filing a lawsuit and paying an attorney is greater than the amount of money that could or would be gained by suing someone who likes to draw Phi Brain in their spare time. The artwork one finds in artist alley additionally is often not in direct economical competition with what the rights holders in the United States are selling and often do not look at the sale of a print as a lost DVD sale.
That said, however, fans who produce and sell products that are similar to what is commercially available such as pins, plushies or hats are at greater risk. Corporations are more likely to take notice of products that are similar to theirs and can either be mistaken for licensed work, compete with official products – or in some cases, as discussed last article, infringes on someone who properly and exclusively licensed to make a similar product and wants to avoid competition. Thus while Funimation may not sue a fanartist for selling custom One Piece cell phone straps, someone who has licensed the exclusive right to do so in the United States very well may.
The other problem doujinshi face is that frequently these are sold for profit and the copyright holder could argue for “market confusion” which means that the doujinshi confuses the consumer between what is an officially licensed product and what is not. This is especially noticeable in the Japanese market where gag doujinshi (such as those produced for Namco Bandai's Tales Of series of games or Aksys Guilty Gear series) are frequently licensed and produced and look almost identical to the fan-made counterparts. Doujinshi is further problematic as it may be subject to an action for trademark dilution (which is beyond the scope of our discussion here) and even competes within the same print market that official manga are sold within. However, trademarks are a whole other topic that requires a separate analysis and discussion which I shall not be covering here.
Fanartists have to be careful of commissioned works even when they involve entirely original characters or merely sketching an anime styled portrait of the customer. Any creative input by another party can clout a copyright in that the artist would no longer own the copyright solely as this would now be a joint work. As discussed before, any person who contributes a creative element to a work has a stake in the copyright. Thus commissioning an original character means both the person requesting the commission and the artist themselves have a stake in that character which could create liabilities down the line if the artist wants to use that character for other purposes. It is important to be careful of drawing a character based on someone else's suggestions and then trying to sell that design or subsequent manga to someone as it no longer is your sole property.
Cosplay can also be considered a derivative work of the original copyrighted material. The costumes characters wear in a show are either separately copyrighted from the original work, are part of the original work's copyright or are a derivative work of the original and are subject to the original copyright thus any reproduction thereof (for sale or distribution) is an infringement of copyright. Simply producing and wearing a costume for home use may not be an infringement – at conventions though this may be a different story which I will discuss shortly.
Cosplay can potentially infringe on another exclusive right of the copyright holder. The presentation of the costume may be considered a performance of the work. A performance right is the right to publicly perform the work, thus the mere act of walking around a convention dressed as Alucard from Hellsing could be interpreted as a performance of the work. This concept is additionally troublesome for Masquerades and Cosplay Contests where skits are part of the event and the persons on stage are even more likely crossing the boundaries of their rights by conducting a public performance of the original work. This argument would not necessarily be too dissimilar from the Disney Corporation's prohibition on dressing as Disney Characters in Disneyland Parks (agency arguments aside) as a non-savvy customer could confuse the fan's work as an official and sanctioned production. Saban Entertainment DiC have previously filed copyright infringement actions to manufacturers of unlicensed Power Rangers and Sailor Moon Halloween costumes, the analysis for this infringement could be almost identical if they were to sue a cosplayer.
Cosplay becomes all the more tenuous when it involves the commission and sale of costumes as these are in fact products that are frequently available by licensed distributors/manufacturers and are competing with the original copyrighted work and affect its market. Unlike doujinshi however, cosplay is rarely telling its own “story” in that it is not a unique item compared to the original version even if on the same market.
Although cosplay will sometimes create derivatives or alternative versions of characters such as formal outfits for characters that otherwise do not have them, or alternatively gender swapped characters, these still are arguably derivative products of the original work and can also be an infringement of copyright. The cosplayer does not own the rights to the original character for which they based their costume and if it remains too similar to the original work then it can be considered a derivative work and an infringement. However, if a cosplayer were merely to take inspiration from aesthetics of another work and the costume created is not directly identifiable and is generic or unique enough so as not to be confused with the original work then there arguably is no violation of the original creator's rights. For example, a ball gown featuring garbs like those of Yuna from Final Fantasy X including the patterns and staff could be an infringing work. However, another gown using yellow feathers to depict the image of a chocobo but not actually using imagery of the chocobo itself may be sufficiently vague so as not to infringe on the original author's creation.
However, much like fanart, the practicality of filing a lawsuit for these items is tenuous at best.
Anime Music Videos (AMVs) face two problems in copyright law. The first problem is identical to that of fanart and cosplay; namely that AMVs are a derivative work of the original author's creation. This analysis is identical to those discussed above so for the sake of brevity I will skip to the second issue AMVs face.
Unlike fanart and cosplay which are strictly visual mediums, the music in an AMV presents a second infringement that is likely more problematic than the use of the anime. The music in an anime music video is typically a full reproduction of the original copyrighted work and is distributed by the creator either online or to contests at various anime conventions. The distribution and performance of the original music however, is a unique power of the copyright holder (the artist and performers of the original music). AMVs can and have been the subject of cease and desist letters over the music, this rarely happens with anime however.
There is a separate way to avoid the problem of the music – a means of easily obtaining the rights to broadcast licensed music to the public. The music industry has what is called an ASCAP (American Society of Composers, Authors and Publishers) License or a BMI License. ASCAP and BMI are rights management companies that handle the copyright management and licensing for several musical artists and works, purchasing a license such as these allows the purchaser to publically perform works under that license for a specific period of time (dependent on the license). You experience the results of these licenses every time you turn on the radio or listen to Pandora. These licenses are purchased by broadcaster, allowing them to purchases licenses in bulk rather than having to negotiate individually with each musical artist. Many Anime conventions purchase these precise licenses for the purpose of covering the Anime Music Video contest for the duration of the contest.
The third problems AMVs face that is entirely unique to them is “the digital millennium copyright act” (DMCA). Under the DMCA it is illegal to bypass copyright protection that exists on physical media. Using programs and products to rip a DVD or video game in order to get at the core data is a violation of the DMCA and actionable by the party holding those rights. There generally is no means of getting around this problem as the DMCA specifically states that bypassing the rights protection software on a disc is a violation. This is true regardless as to how one came about purchasing or acquiring a DVD, it is strictly illegal to bypass copyrighted protection on media per the DMCA.
The only pace, defensively, where AMVs differ from cosplay and fanart is the argument that the work is “transformative.” A transformative work (discussed more in detail next session) is one where it only uses the original work for inspiration to create something new and unique. This is most frequently cited in cases where parody arises and the original work is only used to the extent necessary to parody what it is based on. Some anime music videos might be able to assert this defense provided that their use of the original material is minimal to the point of creating something new and original. A music video showcasing Goku to Rob/White Zombie's “More Human than the Human” just to emphasize Goku being strong would almost certainly fail this defense. However, if a music video were to perhaps use miscellaneous set pieces individually removed from various Studio Ghibli titles whilst also using real world locations and imagery might be looked at differently.
And once again, suing an AMV creator for the production and display of the work is not economically viable absent a cease and desist notice.
It is doubtful that any person who downloads torrents or digital copies of a show that they did not pay for believes that the act is legal. Although the download itself is not a direct infringement on a particular right of a copyright holder the distribution thereof, and moreover, one in which the downloader arguably contributed to by means of a torrent.
A common question that arises, is the legality of downloading a show that is not licensed or has not been released in the United States (or wherever the person may reside) yet. Although this matter is less and less of a concern for new shows thanks to streaming efforts through Hulu, Crunchyroll and other services, it is a common response from many fans of a show that they have no other means of watching it short of importing the DVDs or blu-rays from Japan (which may or may not have subtitles, let alone a dub).
The fact of the matter is however that even if a show is not licensed for release in the United States it is still protected in the United States. Several international treaties exist between nations that afford creators in one country protection of their works and rights in another. These conventions include the Berne convention, UCC Geneva, UCC Paris, TRIPS and WCT. Both Japan and the United States are signatories on all five of these agreements. Without going into the specifics of each treaty, this generally means that anime, made and produced in Japan but not yet released in the United States is STILL protected by United States code.
What fans may not be aware of, that by distributing an anime title in the United States that has not been licensed they are potentially violating the copyright of several other related companies. Anime frequently involves several sponsorships in order to fund a project. These company logos and product placements are subject to copyright or trademark protection as well and the display of their products or symbols violates intellectual property law. Thus, although one might stream an episode of Code Geass thinking that the only company they have to worry about is Bandai, Pizza Hut may in fact file an action for the use of their logo without permission. Tiger & Bunny is chock full of advertisements from Pepsi to Amazon all of whom have rights in their trademarks and images that may be infringed when displaying the original work. This is additionally true for music which can often be a separate license when a show features a musical artist who is using the series to promote their band or latest single which is often why many videos on YouTube of an anime have their audio removed by YouTube when the artist request as such. These licensing agreements can even affect a domestic distribution as was the case with Funimation's release of Haré+Guu which lacked the ending song ohashi by Eri Umihara.
If all of the above sounds like scary words and the potential ultimate downfall of the anime community don't panic. Next segment we will cover copyright defenses, present issues in intellectual property that may or are impacting the anime community and how to protect yourself from both rights holders and people who may be looking to steal your own work.
THE INFORMATION HEREIN IS NOT LEGAL ADVICE.
AN ATTORNEY SHOULD BE CONSULTED IF YOU DESIRE LEGAL ADVICE.
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