The Law of Anime Parts I , II & III : Copyright and the Anime Fan
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The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Sun Mar 03, 2013 12:37 am
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 1 – WHAT IS A COPYRIGHT AND WHAT DOES IT DO?
Copyright is a topic that frequently produces cringes and ire in anime fans. Hearing this word frequently summons images of faceless corporations looking to stifle the creativity and freedom of smaller, weaker companies or persons. The discussion of copyright brings up taboo topics such as fansubs, the legalities of fanart, cosplay or anime music videos or legislation like SOPA and PIPA. For the average anime fan, a copyright is something they want to stay far away from – however, like it or not, copyrights and copyrighted material is such an engrained part of media and daily life that running into it or running afoul with it is nearly unavoidable. And although the idea of copyrights creates ire in the eyes of anime fans, it is generally a very misunderstood concept that, in the right circumstances, can be of great benefit to a community that so frequently includes people looking to break into the anime or manga production industry.
What is a copyright?
Copyrights are a form of intellectual property, and are codified in Title 17 of the United States Code. A copyright is created when an original creation is fixed upon a tangible medium – however an idea is not copyrightable. So long as the creation, story, character or song rests within the head of its creator this means it is not subject to copyright. Only when someone first commits their idea to paper, computer or other tangible medium has the idea has taken a tangible form and is copyrighted. This process is commonly known as a “common-law copyright.” While it does not afford the same protections as a copyright that is registered with the United States Copyright Office, it does bestow upon the original author a degree of creative control and security. It is precisely these protections that make obtaining a copyright important to aspiring creators.
Copyrights create a form of protection that lasts a literal lifetime. Once created, a copyright (presently) lasts for the lifetime of the author plus an additional seventy years. If the creator is a corporation then the copyright lasts the shorter of 95 years from the date of publication or 125 years from the date of creation. This length is to afford the creator and their estate sufficient time to profit from the copyright. After this period, the copyright officially moves to the public domain. All items in the public domain are usable by anyone for any purpose without having to pay the creator of the work.
At its original inception, the public domain was devised to create a pool of creative works that could inspire future generations. However, its intent has been diminished by the ever-lengthening duration of the copyright which keeps existing works from moving into public domain. Presently, only the following are within the public domain: All works prior to 1923, works between 1923 and 1989 depending on if the work was published with a notice of copyright registration and if it was renewed, after March 1989 all copyrights last the aforementioned lifetime plus seventy years. Presently, all works created after 1989, baring unusual circumstances, are not in the public domain.
When a copyright is the creation of more than one person, say for example two friends who decide to create a manga with one writing the story while the other draws the artwork; they have what is called a “joint work.” In a joint work the copyright is owned by all persons that contributed to the work regardless of their level of contribution. Creators have to be very careful about the production of their work as any creative input by another person can potentially impact who owns the copyright and may greatly affect their ability to sell and/or profit from the work down the line. Additionally, joint works change what type of control each author has over the work. Owners of a joint work are free to sell and distribute the work independent of one another provided that the other owners of the work receive profit for it. However, there is one exception to this rule. The sale of exclusive rights to a work requires the consent of ALL PERSONS who have a stake in the work. It is for this reason that creators and artists need to be careful as to who has a stake in the copyright as any other person who may have a stake in it could prevent their ability to properly profit off of the creation in the future. If, the aforementioned two friends publish a manga together, neither may sell the exclusive rights to a movie or TV series based on the book without the signed consent of the other.
This works slightly differently for corporations. Corporations use a system called “work-for-hire” from their artists, writers and staff. For example, once CAPCOM has an artist draw Chris Redfield on paper CAPCOM owns the copyright to the character, not the artist who drew him. This is a result of contract negotiation and employer agreements with their employees. Although many employees of comic book companies like Marvel or DC will place their work on websites such as Deviant Art, this is only done with the express permission of their employer. When working for a corporation such as Squire Enix or CAPCOM anything created by the employees using company materials or while on the clock is the intellectual property of the corporation, not the employee. This is a highly contested and litigated matter as sometimes corporations will argue that even things created on the artist's spare time still belongs to the company as it was done using the training and knowledge they gained while working for the corporation.
How is a legal copyright acquired?
A creator who wants to afford themselves the full protection offered by the government on their copyrighted work does so by filing an application with the United States Copyright office. This process is conducted via paper or electronic application wherein an author pays a fee to the United States Government and submits their work for review and copyright. The creator must declare precisely what kind of copyright they are filing for. These options include literary, musical, dramatic (plays), pictorial/graphic/sculptural (art), motion pictures and audiovisual works (TV, movies, games) as well as several others. The creator must declare who contributed to the work (if it is a joint work) or declare the work as their own (if they are the sole creator or a corporation) in addition to declaring aspects of the work that they are not claiming to own the rights to (public domain, licensed characters or artwork with permission from the original owner). If the Copyright Office finds a discrepancy or that the source material is not fully owned by the claimant that a copyright can be denied.
For example, someone cannot write a comic about Superman and claim a copyright over their comic as the character of Superman is owned by another entity. Someone CAN, however, claim ownership of that particular work provided they have the rights to use the character and are not claiming ownership over the parts they did not create. This is how works such as Production I.G & Funimation's Mass Effect anime can be independently copyrighted from the original Mass Effect which is owned by BioWare & Electronic Arts, without harming the original copyright. (Note: Mass Effect: Paragon Lost was not independently copyrighted by Funimation nor Production I.G, the example is by way of illustration rather than of literally what transpired). Collaborative works between studios generally settle via contract who owns what of a joint work so that a proper copyright can be made. Square Enix, for example, retains the rights to its Final Fantasy characters used in Kingdom Hearts while the Disney Corporation retains the rights to its characters and the original characters of Kingdom Hearts. Meanwhile the work “Kingdom Hearts” in and of itself is owned by Disney Enterprises, Inc (the official entity that owns the copyright).
What benefits does a copyright provide?
One might ask what the point is of filing for a copyright with the United States Copyright Office if the creative work is copyrighted upon taking form. The reasons are simple, security. Although the drafts and sketches of an author or artist are afforded mild protection upon creation, it is only through registration that the creator can sue if they feel someone has stolen their work. Additionally, a valid filing serves as proof that the creator has a valid copyright to begin with. A registered work is also afforded statutory damages (anywhere between $200 and $150,000 per act of infringement) and the creator does not even need to prove that someone who stole or infringed on their copyright caused any actual damages in order to recover a judgment from them. A common law copyright however would need to specifically show the actual damages the defendant caused them by infringing on their work.
Registered copyrights confer on the creator of the work a series of exclusive benefits. The holder of a copyright has the exclusive right to: reproduce their work (make copies), to create and distribute derivative works (such as spinoffs or other materials), to distribute the work (sell the work), to perform the work (live reading/show), to display the work publically, and the right to perform the work via digital audio transmission (broadcast over TV, radio or the internet). Any of these rights may be sold or exercised at will by the copyright holder.
A good example of how these rights can be exercised and managed is Hasbro, the rights holder for The Transformers. Hasbro has the exclusive right to air the show on TV, distribute it digitally, to have public viewings of the show, and to sell it and/or any related products, such as toys or figures. They are also free to license out these rights independently of each other to other parties; one such decision was when Hasbro sold the movie distribution rights to Universal Studios but Universal did not retain obtain any rights to distribute or manufacture Transformers toys. Alternatively, all the rights can be withheld from other persons or companies. Such is the case with Harmony Gold, who presently owns the rights to Robotech/Macross. They can deny the right to release and distribute from other parties and retain them for their own use. Harmony Gold has notoriously (in the anime community) exercised this right as it has blocked the release of series such as Macross Frontier and attempted to block games like MechWarrior Online, because Harmony Gold possesses the U.S. distribution rights to Macross, its characters and mechs and all related works. These scenarios are subject to contract negotiation and are best left for another discussion.
In the anime industry, the right to distribute a copyrighted work is the most common right involved in negotiations between U.S. and Japanese entities. Companies like Viz Media and Funimation can obtain the exclusive right to distribute manga, DVDs, Blu-Ray or TV broadcasts in the United States from the original rights holders in Japan. The contracts finalizing these deals are very explicit about what rights are conferred and what restrictions they entail. In no place is the limitations a rights holder can place on a licensee more noticeably present than in Blu-Ray production and sales. Since the United States and Japan share a region code for Blu-Ray (a Japanese Blu-Ray will play just fine on an American player and vice-versa) Japanese companies are leery of Japanese citizens importing cheaper American Blu-Rays with the original Japanese audio on them. As a result, anime Blu-Rays in the United States generally wind up lacking the Japanese audio track despite it being present on the DVD (i.e. Sentai's release of Persona 4 The Animation) or, the Blu-Ray can wind up coming out substantially later than the DVD or simply delay a release altogether (Viz Media's Tiger & Bunny – dub production time notwithstanding).
What can the consumer do with a copyrighted work?
Anyone may freely license the rights to use a copyrighted work by contacting the appropriate rights holder and negotiating a contract with them. If someone wants to sell their Supernatural artwork as posters, they may contact Warner Brothers and purchase or contract the right to do so. However, there are pitfalls to avoid when contracting the rights to use a copyrighted work from the original rights holder.
The first is that although a creator can freely license their work for use by other persons or companies, this right MAY or MAY NOT be exclusive. Companies such as Nickelodeon can freely license to more than one company the rights to make Avatar: the Last Airbender t-shirts. They can also license the exclusive right to develop t-shirts for Avatar and thus any subsequent licensee is a violation of the rights of the original licensee. Conflicting licenses results in lawsuits which was the situation in Twentieth Century Fox Film Corp. v. Warner Bros. Entm't, Inc. et al. cv 08-0889 GAF (AJWx) (2008) which resulted in the film Watchmen being unprofitable for Warner Brothers since the exclusive rights to film distribution were owned by Fox PRIOR to the film being produced by Warner Brothers.
The second pitfall is extremely relevant to to imported products such as anime. Although Viz Media may own the rights to distribute and produce the Tiger & Bunny DVDs in this country, they may not necessarily have the rights to distribute the action figures, gatchapon or other merchandise made for the show. Additionally, they may or may not have the right to sublicense the property. Sublicensing allows someone who licensed the rights (limited or not) to a property, to license it out again to someone else. Funimation can license One Piece for TV and DVD distribution in the United States and they may also sublicense the rights to produce One Piece merchandise in the United States – deals such as this are what allow One Piece key chains or coffee mugs to be made and sold in the United States without the keychain or coffee mug maker having to directly negotiate with Toei. Ultimately, the responsibility lies with the licensee to make certain their rights do not conflict with someone else's and they should contact the original copyright holder to make certain that the party they are dealing with has the appropriate right to sublicense the property.
Another method to use a copyrighted work is the aforementioned public domain. Works in the public domain are free to use by anyone for any purpose. However, as stated, the public domain is very limited presently as the only works that are certain to be in it are works created prior to 1923.
Alternatively, there is the creative common license. The Creative Common License - http://creativecommons.org – is a website where creators of otherwise copyrighted work place their work up for the public to use freely with specific restrictions. Each author chooses specifically what their work may be used for and what restrictions are placed on it. Musical artist Jonathan Coulton (who wrote the songs “Still Alive” and “Want you Gone” for Valve's video games Portal and Portal 2) places some of his work on this website for others to use. It is important however to note that the creative common license is NOT a government organization or an actual license and is merely a website where creators place their work for others to use out of the “kindness of their hearts.”
Takeaway
Obtaining and using a copyright are not as restrictive as one may think. There are ways to use just about anything provided someone goes to the lengths necessary to obtain the rights to use it. However although it is simple in concept, it can be difficult in execution and people creating new work need to be especially careful of what rights they can acquire and what they cannot. Next session we will see what this means for anime fandom.
The Law of Anime Part II : Copyright and the Anime Fan
- Spoiler:
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/Doujinshi
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
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
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.
Fansubs
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.
Takeaway
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 Law of Anime Part III : Copyright and the Anime Fan ; Defending Yourself
- Spoiler:
- 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.
General Defenses
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.
Fair Use
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.
Takeaway
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 OPINIONS EXPRESSED HEREIN ARE SUBJECT TO CHANGE DEPENDING ON LAW AND FACTS. ALL LEGAL ISSUES ARE DISCUSSED ARE EXPRESSLY NOT FOR THE PURPOSE OF HANDLING SPECIFIC CASES AND THE LAW MUST BE INDEPENDENTLY RESEARCHED. THERE ARE THOSE THAT MAY HAVE OPPOSING VIEWPOINTS.
THE INFORMATION HEREIN IS NOT LEGAL ADVICE.
AN ATTORNEY SHOULD BE CONSULTED IF YOU DESIRE LEGAL ADVICE.
(c) Anime News Network
- xBRSStraw Hat Pirate
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Sun Mar 03, 2013 1:42 pm
Thank you very much ! I'll read this even if it's too long
Because it's The Law of Anime
- HyeonneldeAdministrator
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Sun Mar 03, 2013 7:12 pm
BRS★ wrote:
Thank you very much ! I'll read this even if it's too long
Because it's The Law of Anime
You're Welcome!
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 6:54 pm
By the way, where did you get this?
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 6:56 pm
BRS★ wrote:
By the way, where did you get this?
Click Here
- AngelLuceferPokemon Trainer
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 6:58 pm
This is from ANN right? The title and contain is quite familiar.
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 6:59 pm
Click Here
Ok, Thanks! /wave
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 7:02 pm
AngelLucefer wrote:This is from ANN right? The title and contain is quite familiar.
I think so
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 8:25 pm
Every anime fan should know this...
- kitewasherePromoter
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 8:28 pm
tl;dr loljk! xD
I thought it's really a Law of Anime that had been passed by the Senate and signed by the President, sth like that. Haha! But it's all about the Law of Copyright towards anime.
Anyway, thanks for sharing this. I've been informed well especially on the relation of copyright infringement in doujins, cosplay, and other anime merchandises. :)
Btw, to the thread starter, you must put Credits. You must put a link to where you got the article. :)
I thought it's really a Law of Anime that had been passed by the Senate and signed by the President, sth like that. Haha! But it's all about the Law of Copyright towards anime.
Anyway, thanks for sharing this. I've been informed well especially on the relation of copyright infringement in doujins, cosplay, and other anime merchandises. :)
Btw, to the thread starter, you must put Credits. You must put a link to where you got the article. :)
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 8:29 pm
So i was right after all.
- HyeonneldeAdministrator
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Mon Mar 04, 2013 10:08 pm
kitewashere wrote:
Btw, to the thread starter, you must put Credits. You must put a link to where you got the article. :)
Sure, thanks for reminding me about putting some Credits
-
From this moment
AngelLucefer wrote:So i was right after all.
What's with that emoticon?
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Fri Mar 08, 2013 11:09 pm
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.
I agree ..
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Fri Mar 08, 2013 11:28 pm
Okay , Thanks for the Long long long information about the law of anime ..
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Fri Mar 08, 2013 11:37 pm
- R I N wrote:Okay , Thanks for the Long long long information about the law of anime ..
Your very very very welcome ..
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Re: The Law of Anime Parts I , II & III : Copyright and the Anime Fan
Sat Mar 09, 2013 9:22 pm
Hyeonnelde wrote:- R I N wrote:Okay , Thanks for the Long long long information about the law of anime ..
Your very very very welcome ..
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