The Law of Anime Part III: Defending Yourselfby Sean Thordsen, Esq.,
About the Author: Mr. Sean Thordsen is a general practice attorney located in Orange County, California where he specializes in intellectual property and entertainment law. He represents clients in obtaining copyrights and trademarks as well as successfully defending those accused of violating them in federal court. His additional areas of practice include corporate law, employment law, and wills & trusts. He earned his undergraduate degree from Vanderbilt University in Nashville, Tennessee. He earned his legal degree from Chapman University School of Law in Orange, California where he earned distinction in Copyright and Trademarks at Chapman School of Law in Entertainment Law and Working with Film Makers Legal Clinic. Mr. Thordsen is a member of the California and Nevada Bar Associations. Additionally, Mr. Thordsen has been an invited speaker at SMU on tax incentives in the video game industry at the “Games Business Law Legal Summit.” Sean Thordsen may be reached at the Thordsen Law Offices located in Santa Ana, California.
SESSION 3 – DEFENDING YOURSELF
Last week we covered the seeming gloom and doom of how copyrights affect the anime community and its various aspects. This week we will be discussing what constitutes a non-infringement and what the legal defenses for copyright infringement actions are. Pay close attention this session as we will cover one of the most misused and misunderstood elements of copyright defense – fair use.
Parody and Satire
Parody and satire are uniquely protected elements under United States law. The two are not interchangeable however. Parody and satire are unique from each other in what they use a copyrighted work for and how much of the copyrighted work they use. Consequently, each is afforded a different level of protection under United States law.
A parody makes a critical statement on the original work itself. Case law defines this as determined if the “use of some elements of a prior author's composition to create a new one that, at least in part, comment's on the author's works.” Series such as Excel Saga which draw clear references to other anime are parody as the story and use of similar looking characters and plot elements are written in order to make fun of the original work for which they are based. Conversely, fanart of the cast of Blue Exorcist dressed as the cast of the Avengers is NOT parody as it is not done in order to comment on either Blue Exorcist or the Avengers (an argument could be made based on character personalities but this argument is flimsy at best.)
Fan Parodies are close in that if they are redubbed (such as Yu-gi-oh Abridged or Gundam Wing Abridged) and make fun of the original work are generally a safer fan production as the use of the original work is in order to comment on it – whether this commentary be plot holes, non-sequiturs or other show elements. Though the “abridged” series of videos can arguably fall under parody – this does not completely absolve them however as they still run the risk of a DMCA violation for ripping the original material (see discussion on AMVs from last week) and may arguably be considered a derivative work.
Parody cannot use too much of the original work, as the amount it uses in order to comment on the original is a key factor in determining if an otherwise infringing work is parody. TV shows such as Adult Swim's Robot Chicken or music such as that of Weird Al Yankovic are parody. But a key difference that either of these possess that the average fan parody does not is that the use of the original work is minimal. Robot Chicken uses action figures and never the original source material for its parodies – it largely is original material making fun of what came before. Weird al Yankovic's songs only use the tune while the lyrics are similar in theme, making fun of the original song in some way, shape or form (notwithstanding that Weird Al generally acquires permission to use the songs despite this).
Satire is a completely different beast from parody. Satire merely uses the original work as a means to critique something ENTIRELY different and its use MUST be justified. For this reason, satire is generally harder to prove than parody. What this means is that if you were to use L or Light from Death Note to represent the candidates for president to suggest the dichotomy of one candidate being the epitomy of evil while the other is a pillar of virtue then this arguably would be satire as the original work is necessary to convey the creator's message. Conversely, an argument could be made of why not just draw the candidate as looking evil (devil horns for example) as opposed to using a copyrighted image. This is the argument satire constantly involves as there is almost always the question as to if the copyrighted image was integral to the message. Political cartoons are the best examples of satire as they frequently use characters such as Darth Vader, Mickey Mouse or other famous creations in order to convey a political message.
Scenes a faire doctrine
One of the easier defense to exercise in copyright litigation is the “scenes a faire doctrine.” In short, this doctrine means that there are certain things in culture or a medium that are too generic in order to be copyrightable. Once something is too common in a genre that the average person would come to expect to see it, REGARDLESS of the source, then that particular element is not subject to copyright. For example, a show involving ninjas can have the ninjas using super-human agility to move through trees or illusions to confuse the enemy without running afoul with the copyright for Naruto. Tiger & Bunny can use super heroes with capes without infringing on the copyright for Superman as people naturally expect to see super heroes with capes. It is for reasons like this doctrine that you would not see the J.R.R. Tolkien estate suing Ryo Mizuno over Record of Lodoss War for its use of Elves or Toei suing the Walt Disney Corporation over One Piece and Pirates of the Caribbean because the story involves pirates on a boat seeking treasure.
The long and the short of the scenes a faire doctrine is to consider, “is this element typical of the genre or character type?” if the answer is “yes” then the particular aspect involved is not copyrighted nor is it copyrightable. When dealing with an overall work to see if it is a copyright violation (say a clear copy of Team Fortress 2 by China as the game Final Combat) each element must be looked at individually to see if, on the whole, the work is an infringing work or merely one that is too generic to be copyrighted.
At last we get to the most frequently cited defense in copyright law, at least so far as the internet and general populous is concerned. Fair use is the most frequently cited and the most frequently incorrectly cited defense in copyright law. The term is practically thrown out as a catch-all people use to claim that they did not infringe on a copyright, or, even if they did, that they are protected by this doctrine. This could not be further from the truth. Not only is the term fair use misunderstood in WHAT it protects, but it is also misunderstood as to HOW it protects.
Search anime fan sites or community contribution sites such as DeviantArt, fanfiction.net or YouTube and you will find countless users uploading artwork of anime characters, scans from magazines, anime music videos, opening sequences of anime series, clips from shows and more – all citing that it is protected by fair use, sometimes even providing the actual code citation. However, generally speaking, when you see one of these disclaimers on a fan product, it most likely is being used incorrectly and is affording the person stating it, no protection at all.
First, it is important to note that fair use ONLY protects specific uses of material. The United States Code specifically states that fair use may only be asserted “For purposes of criticism, comment, news reporting, teaching, scholarship or research.” Unless the use in question is being used for one of these six purposes, fair use is not an applicable defense. Fair use was designed to protect persons such as teachers, news reporting agencies, review websites and researchers from being held liable from acts that are otherwise copyright infringement. This is where most fair use arguments (at least those limited to YouTube and other user-content based WebPages) fall apart. Strictly speaking, uploading an anime music video, video clip, scans of artwork or sharing elements of the show are generally not used for any of the above purposes.
Secondly, to see if something CAN be protected by fair use involves four factors that are looked at by the court. Whether the item in question infringes is determined as to the where these four factors fall (in favor of the infringer or in favor of the original rights holder). These four factors are: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the work used, and the effect on the potential market of the work.
The first factor is the intent and purpose for which the person claiming fair use is using the work. In short, are they using it for profit? This factor generally ways in favor of a lot of works in the anime community as fanart, videos and uploads are almost never done for profit (there are exceptions mind you – deviantart frequently flirts with disaster by letting persons order prints for a nominal fee and having advertisements on your website for which you earn money could be considered a profit). The profit does not even have to come directly from the infringement. Some copyright holders have argued successfully that websites that host Bittorrent links are making a profit off of the copyright infringement due to the revenue the defendant receives from the advertisements on their webpage. If the person claiming fair use is not making any money off of the use then this factor is generally in their favor. If however, they are actually selling the product or using the copyrighted image in order to draw business or sell a product then they may not be protected by fair use at all.
The second factor is the nature of the copyrighted work. This factor looks at if the work being infringed is factual in nature (research, historical studies) or creative in nature. In the anime community this is almost always in favor of the original rights holder as anime is a creative work, generally, and what is being copied is often not being used for the purposes of presenting facts or details that are not copyrightable. Anime, at its core, is an entertainment medium that involves unique stories and thus is not typically factual in nature.
The third factor is the amount and substantiality of the work used. What this factor looks at is how much of the original work the person asserting fair use has utilized. The more that is used the greater likelihood that fair use provides no protection. Fanart which uses a character in their full appearance often can fall victim to this factor as the use of a character may be deemed too much – it depends on what is being offered. Videos like YouTube uploads of anime openings will almost always fail this test as they are a complete upload, unedited of a fairly significant amount of a pre-existing work. Granted that a show is generally 25 minutes and the user has uploaded only one and a half to two minutes of that but even this can be considered significant. The amount and substantiality is not based off of the percentage of the original work used but merely how much of it is being used by the person asserting the defense. Thus even a fifteen second clip can be found to be enough to fail this factor – even more likely when the use is unedited.
The fourth factor is the effect on the potential market of the work. This factor specifically looks at if the infringing work, as distributed and produced, will impact the original work at all. A full upload of an anime will certainly affect the original work as it can be argued that this is a lost sale to the original owner. This can even include simple video or audio clips, as the only other way to view them would be to own the original work. Other items such as fan fiction are safer as the reading of a fan fiction about Madoka Magica likely will not impact the sales of the DVDs or any Madoka Magica products. Fanart is riskier by virtue of fanart arguably competing with the original work for sales of posters or art books. This is additionally troublesome for doujinshi which more directly compete with manga sales. This factor can go either way and needs careful evaluation on a case to case basis as an argument can be made that virtually any product affects the sales of the original and thus the factor would fail.
Finally, what people often do not realize about fair use is that it is an affirmative defense. What this means is that fair use is something you have to assert in court once you have been sued for copyright infringement. It does not protect someone from being sued nor does it act as a “get-out-of-jail-free card.” Rather it is something the alleged infringer must assert before a judge to explain how their use is non-infringing. Merely putting that you are authorized to use a copyrighted image on grounds of fair use has no meaning. I have personally asserted it for clients who have been served cease & desist letters from copyright holders letting them know that should they sue, that the use of the image will likely fall under fair use. This does not prevent the client from being sued but it is enough to sometimes give a copyright holder pause and consider the matter further. Bearing in mind that, when asserting this defense you are dealing with someone who is versed in copyright already and can properly assess if the defense is valid or not.
The takeaway from this session is that there ARE defenses if you are sued for copyright infringement. However, there is no magic defense that will automatically absolve you if the rights holder catches wind of your actions and desires to send a cease and desist letter or file a lawsuit. Copyright defense are very limited and generally require a court in order to be exercised. The only other method is to attack the original copyright for not being valid basically claiming the person filing the action has no rights to or involves material that is not copyrightable). Generally it is best to err on the safe side.
In our final session, we will cover in brief what is currently in the pipeline for cases and legislation for copyright and how it might affect your ability to watch anime and your ability to purchase it or the merchandise at conventions.
THE INFORMATION HEREIN IS NOT LEGAL ADVICE.
AN ATTORNEY SHOULD BE CONSULTED IF YOU DESIRE LEGAL ADVICE.
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