Answerman

Are AMVs And Other Fan Works Really "Fair Use?"

Jake asks:

I have been hearing a lot discussion over the last few months about fair use and how many artists are getting a lot of push back from the copy right holders. It has made me think about AMV's and there position at conventions as well as YouTube among other places. In a lot of ways AMV's have become a cornerstone of many conventions. What's to stop Funimation or any other licensor from issuing a cease and desist if any AMV contains any of there content, especially at a con?

Standard disclaimer: I am not a lawyer and what I've written below should not be considered legal advice.

There's actually quite a bit preventing rights holders from stopping an event like an AMV competition. Not all of those things stopping them are legal issues, but some of them are.

But let's back up a second. Copyright laws are actually codified into the US constitution, but are somewhat complex in nature. While there are ways that copyright violation can be a criminal offense (mostly by being a for-profit operation, like a pirate streaming site), most matters involving copyright -- especially "small-time" copyright violations -- are handled as civil cases. That means that the rights holders would have to come after you and file a lawsuit.

And that's when "fair use" kicks in. Fair use is an extremely important part of copyright law in the US (and, in varying degrees, other countries) that allows for certain uses of copyrighted materials without permission. It's what allows ANN to use imagery and quotes from shows in our articles. But it's a defense, and sometimes it works and sometimes it doesn't. The rules regarding what constitutes fair use are very blurry, so many things fall into varying shades of gray. Whether it is or is not fair use would ultimately be for a judge or jury to decide if and when a case ever went to trial. Without that, we don't have a clear answer.

The fair use doctrine, as outlined in 17 U.S.C. § 107, specifically names criticism, comment, news reporting, teaching, scholarship and research as valid reasons for fair use. It outlines a four factor list of considerations in determining whether something is fair use or not:

• What is the nature of the use? In other words, is something genuinely new being created, and is it for profit or commercial sale? This is where larger-scale for-profit artist alley merchandise operations get into trouble.
• What is the nature of the copyrighted work? This takes into account such questions as whether a story is fictional (you can't copyright facts), historically significant (the Zapruder film of the JFK assassination was ruled to be non-copyrightable) or previously made available. None of that applies to anime, really.

• Amount and substantiality - basically, did you copy the whole show, or just short clips? Short clips are more likely to be considered fair use, although sometimes it's OK to copy the whole thing, such as when using a PVR to time-shift a TV show.

• Effect upon work's value - Did the violation of the copyright make the legal work have less value? For example, fansubs would not be "fair use" because once you've seen a show once on a pirate site, most people aren't going to then go to a legal site and watch it again.

This isn't a test, and you don't "pass" or "fail" any of these questions. They're simply factors to keep in mind to decide whether that use is allowable under law or not. Because that's such a worthless standard to apply to everyday life, a lot of companies err on the side of caution and seek permission to use copyrighted media even when it would probably fall under "fair use." And because the idea of fair use only comes up as a defense, some companies file suits and takedown notices even when it probably applies -- because their goal is to shut it down, and a trial would be unlikely.

So, do AMVs count as fair use? It's not really possible to give a definitive answer. Some of the more elaborate ones, the ones that parody the original show, mash up several shows, or drastically alter the animation and artwork could definitely argue that they would be parody or transformative works. Ones that just boil down a character or story arc to appropriate music would have a harder time making those arguments.

But fair use aside, it's almost certainly not worth the anime companies' time or money to go after AMVs in any way. The fan backlash would be severe, and there wouldn't be much benefit. Also, the fact that basically every anime company has participated in a convention hosting an AMV competition without complaint, and sometimes even sponsored or donated prizes to that competition, would pretty much destroy any case that they had against them. It would look like tacit approval over the practice.

Of all the different ways anime fans violate copyright laws, AMVs are probably one of the least harmful. If anything, they usually act as 4-minute commercials for the shows they chop up. Watching an AMV is absolutely not a substitution for watching the anime in question. Anime companies know this. And while they can never publicly say, "hey, use our shows for AMVs," they almost certainly don't mind, and most anime publishers employ a few AMV nerds themselves. If an anime company is going to throw a ton of money at lawyers and court costs to make something go away, they're going to choose a much more problematic target.

AMVs almost certainly violate the copyrights of the songs being used, however. The ability to synchronize a song to certain visuals is a specific right that usually must be obtained from the owner of the recording -- usually the record label. Moreover, the entire song is usually used with no modification. In the YouTube era, this usually isn't enough to result in any sort of charges or suits being filed, but it can be enough to get the record label to have the music shut off when you upload an AMV. Anime conventions must pay royalties to ASCAP or other performing rights organizations in order to play those songs to an auditorium full of people.

When it comes to accessing whether a fan practice is legally kosher or not, you can generally just ask yourself two easy yes-or-no questions. If a show or manga isn't being reproduced in full, and nobody's making money from its existence, you can probably consider it safe from punishment of law. Even if it's not 100% on the up-and-up.

Justin Sevakis is the founder of Anime News Network, and owner of the video production company MediaOCD. You can follow him on Twitter at @worldofcrap. Please note that he does not take question submissions via Twitter.