Why Are Some Fan Works OK, But Some Get Shut Down?

by Justin Sevakis,

James asked:

I have noticed that most companies tolerate fanart, fanfiction, and cosplay of their works, but not fan-films or fan-made video games, which seems very arbitrary and random, to me. Why do companies tolerate some fanworks, but not others?

It's a bitter pill to swallow, but it's important to recognize that fan works -- be they cosplay, fanfiction, fansubs, fan films, fan art, or anything else -- are almost all copyright violations. Some of those copyright violations might technically be considered "fair use" by a court in the United States and thus given an exception, but the fact remains that international copyright law gives the owner of an original creation the exclusive right to make anything directly related to that work. If you don't have permission, you are violating copyright law. It's really that simple.

That said, the distinction is somewhat pointless because a copyright owner trying to eliminate all fan works would be, frankly, stupid. It would cost a fortune in legal fees, it would punish your fan base (and likely spurn their fiery anger), and if there are a significant number of very passionate fans, violations would spring up faster than you could ever hope to get them taken down. And even if that weren't the case, many fan works are pretty harmless, and in the internet age, simply a sign of a healthy fandom. If you have a hit manga/series/movie/book, you would want to encourage passionate fans. It would only help the fan base grow, and get people more excited about buying the original work.

All that is true, but to a point. While fan works definitely have a positive effect, if left completely unchecked they can actually damage a franchise's ability to make money. The right to make merchandise, apparel, video games, movie adaptations and translated versions of the work itself all have to be licensed from the owner, and those licenses can bring in a LOT of money. If anyone is allowed to just make their own just because they're a "fan" (a pretty meaningless distinction, really -- anyone can just say they "like" something) then there's a lot less value for someone buying the rights to do it legally.

Think about it for a second - if you are an apparel company and want to make, say, Gundam Iron Blooded Orphans shirts, you could justify paying a pretty decent amount of money for the exclusive right to make and sell them. After all, that show was a sizable hit. However, if your authorized T-shirts have to compete in a market crowded with "fan" T-shirts, you'd likely sell a lot fewer. Your T-shirts might be the only ones using the official artwork from the show, but that wouldn't matter -- you're still not as likely to sell as many shirts. Suddenly the value of having a contract with the creators is diminished. This is one reason we've seen fanart targeted more and more often by copyright holders in recent years, and it's an important aspect of the "fair use" defense in US copyright law. If the copyright violation directly competes with legal uses of the original work, it's far less likely to be considered to be acceptable.

"Fan projects" that are just thinly veiled bootleg merchandise is one thing, but fan-produced storytelling is another. Fan fiction and doujinshi you find online aren't such a big deal. They don't make (much) money, and nobody would mistake them for legitimate. However, fan films, video games, and other "side story" fan projects are usually seen as not so benign. The more polished and professional they look, the more likely they are to attract attention from the original rights holder, who is more likely to see such a thing as a threat to their bottom line. They can potentially compete directly with the owner's ability to produce their own sequels and spin-offs (or at least, that's how they're frequently viewed by big media companies). Furthermore, video game and live action movie rights are very valuable for a hit franchise, so any copyright owner in their right mind would stop at nothing to defend those rights.

But where the owners of these properties draw the line varies wildly, based on the owner's priorities and values, and their actual ability to police such things. Some have deep pockets for lawyers, and some have to pick their battles. Some of them can't really read the English web and so violations there go unnoticed. Others have entire corporate departments dedicated to copyright enforcement. This is the chief reason these laws are unevenly and inconsistently enforced. It's absolutely a case-by-case basis, and in each case, you're going to have a whole variety of different factors - like what type of fan project it is, whether or not the original copyright owner sees it as a threat to their bottom line, who's doing the infringing, and whether or not the company has the resources to actually enforce their copyright through the justice system.

For example, anybody who uploads anime commentary on YouTube knows that Studio Ghibli has ZERO TOLERANCE for any clips of their films being uploaded on the internet. If you include a clip of, say, Kiki's Delivery Service in a YouTube video, you will probably get a copyright strike against you. But at the same time, the internet is lousy with bootleg Studio Ghibli T-shirts, especially ones that mash up its iconic characters with other well-known nerd franchises (ex. Totoro and Dr. Who). Print-on-demand merch companies like TeePublic, RedBubble and Society6 that claim to cater to independent artists (and are awash in bootleg material and stolen fanart) certainly run the risk of getting sued by selling those shirts, but I assume they continue to do so because Ghibli hasn't done anything about it, or their legal threats were ignored. These merch-on-demand companies generally seem to respond to serious legal muscle with at least half-hearted compliance - Redbubble yanked all their directly-infringing Star Wars tee-shirts a while ago, for example.

But that's obviously something Disney is interested in actively and aggressively protecting, and will likely do so at any cost, which is what it seems like most of this boils down to in the end.

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    Justin Sevakis has worked in the anime business for over 20 years. He's the original founder of Anime News Network, and owner of the video production company MediaOCD. You can follow him on Twitter at @worldofcrap.

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