Anime Painting From Fan Art Anime Girl Wering a T Shirt
The Constabulary of Anime Part Two: Copyright and Fandom
by Sean Thordsen, Esq.,
SESSION 2 – COPYRIGHTS AND THE FANDOM
Last fourth dimension nosotros covered what a copyright is, how it is acquired and what rights it bestows on the creator. This time we will encompass 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 civilization. But I'm getting ahead of myself, earlier we can comprehend the aspects of the anime customs we must get-go cover what determines if a copyright is infringed.
Infringing on a copyright
A copyright is infringed in the most direct manner past literally copying the work and reproducing it for auction 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 whatsoever 1 of the creator's "exclusive rights" which were covered terminal session. In brief, if a third party distributes the work, reproduces the piece of 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 ane in particular needs farther elaboration – this is the right to create a derivative piece of work. Strictly speaking, a derivative piece of work is whatsoever 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, Boob tube serial and video games. The additional movies such as Empire Strikes Back are considered a derivative piece of work of the original work Star Wars. Still, a derivative piece of work is not limited to but the utilize of the original characters and can merely exist something occurring within the same universe. Code Geass: Akito the Exiled is a prime number example of a derivative work; information technology does not star any of the original characters and merely occurs inside the established universe and canon which is Code Geass. Thus a derivative work can be annihilation using the original characters or placed in an existing universe.
And so how does this touch on fans?
The nature and broad rights a copyright creates touch on 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 bear upon each of these separately equally, although many of them involve similar traits, their role in the broader scope of anime fans greatly impacts the analysis.
Fanart/Doujinshi
Absent a parody or satire defense (which I will encompass 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 non oft pursued every bit at that place are both public relations (PR) reasons and economical reasons to consider with the sale of such items. Although fanart is an unlicensed 3rd party product and is often sold for profit in fan markets, through Deviant Art, or at artist aisle's at anime conventions the general profit on these is limited. Suffice to say the average fanartist is non making a living off of selling drawings of someone else's characters. For this reason information technology would mostly be bad PR for a visitor to sue a fanartist or try to shut down creative person alley equally it would look like a clampdown on your primary consumer base over something that is (relatively) harmless. The secondary reason is that information technology is highly uneconomical to sue such persons as the profit existence fabricated is minimal and the costs of filing a lawsuit and paying an chaser is greater than the corporeality of coin that could or would be gained by suing someone who likes to describe Phi Encephalon in their spare fourth dimension. The artwork one finds in artist alley additionally is ofttimes not in direct economical competition with what the rights holders in the Us are selling and oft exercise not look at the auction of a print as a lost DVD auction.
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 probable to have notice of products that are similar to theirs and can either be mistaken for licensed work, compete with official products – or in some cases, equally discussed last article, infringes on someone who properly and exclusively licensed to make a similar production and wants to avoid contest. Thus while Funimation may not sue a fanartist for selling custom One Piece cell phone straps, someone who has licensed the sectional right to do then in the Usa very well may.
The other problem doujinshi face is that ofttimes these are sold for profit and the copyright holder could argue for "market place confusion" which means that the doujinshi confuses the consumer between what is an officially licensed product and what is not. This is peculiarly noticeable in the Japanese market place where gag doujinshi (such as those produced for Namco Bandai'southward Tales Of series of games or Aksys Guilty Gear series) are frequently licensed and produced and look well-nigh identical to the fan-made counterparts. Doujinshi is further problematic as it may be subject to an action for trademark dilution (which is across the telescopic of our discussion here) and even competes within the same print market that official manga are sold inside. However, trademarks are a whole other topic that requires a separate analysis and give-and-take which I shall not be covering here.
Fanartists accept to be careful of deputed works fifty-fifty 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 exist 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 graphic symbol means both the person requesting the committee and the artist themselves accept a stake in that graphic symbol which could create liabilities downward the line if the artist wants to employ that character for other purposes. Information technology is of import to exist careful of drawing a character based on someone else'due south suggestions and 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 piece of 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 area 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 utilize may not be an infringement – at conventions though this may be a dissimilar story which I will discuss shortly.
Cosplay tin potentially borrow on another exclusive right of the copyright holder. The presentation of the costume may be considered a performance of the piece of work. A performance correct is the right to publicly perform the work, thus the mere act of walking effectually a convention dressed as Alucard from Hellsing could exist interpreted as a performance of the work. This concept is additionally troublesome for Masquerades and Cosplay Contests where skits are function of the event and the persons on stage are fifty-fifty more likely crossing the boundaries of their rights by conducting a public performance of the original work. This argument would not necessarily be also dissimilar from the Disney Corporation'due south prohibition on dressing every bit Disney Characters in Disneyland Parks (agency arguments bated) as a non-savvy customer could confuse the fan'southward work equally an official and sanctioned production. Saban Entertainment DiC have previously filed copyright infringement actions to manufacturers of unlicensed Power Rangers and Crewman Moon Halloween costumes, the assay 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 auction of costumes every bit these are in fact products that are frequently available by licensed distributors/manufacturers and are competing with the original copyrighted piece of work and impact its market place. Unlike doujinshi however, cosplay is rarely telling its ain "story" in that it is not a unique item compared to the original version fifty-fifty if on the same marketplace.
Although cosplay volition sometimes create derivatives or alternative versions of characters such as formal outfits for characters that otherwise practice not have them, or alternatively gender swapped characters, these still are arguably derivative products of the original work and tin can also be an infringement of copyright. The cosplayer does not own the rights to the original grapheme for which they based their costume and if it remains too similar to the original work so it tin be considered a derivative piece of work and an infringement. However, if a cosplayer were simply to take inspiration from aesthetics of another work and the costume created is non directly identifiable and is generic or unique enough so as not to be confused with the original piece of work so in that location arguably is no violation of the original creator's rights. For example, a ball gown featuring garbs like those of Yuna from Terminal Fantasy X including the patterns and staff could exist an infringing work. Yet, another gown using yellow feathers to depict the prototype of a chocobo but not actually using imagery of the chocobo itself may be sufficiently vague so equally 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 2 bug in copyright law. The commencement trouble 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 to a higher place and then for the sake of brevity I will skip to the second upshot 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 employ of the anime. The music in an anime music video is typically a total reproduction of the original copyrighted work and is distributed by the creator either online or to contests at diverse anime conventions. The distribution and functioning 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 discipline of stop and desist letters over the music, this rarely happens with anime notwithstanding.
In that location is a separate manner 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 Club 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 equally these allows the purchaser to publically perform works under that license for a specific flow of time (dependent on the license). You lot experience the results of these licenses every fourth dimension you plough on the radio or mind 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 competition.
The 3rd issues AMVs face that is entirely unique to them is "the digital millennium copyright act" (DMCA). Nether the DMCA information technology is illegal to bypass copyright protection that exists on concrete media. Using programs and products to rip a DVD or video game in lodge to get at the cadre information is a violation of the DMCA and actionable by the political party property those rights. There generally is no means of getting around this problem every bit the DMCA specifically states that bypassing the rights protection software on a disc is a violation. This is true regardless as to how i came about purchasing or acquiring a DVD, it is strictly illegal to featherbed copyrighted protection on media per the DMCA.
The just pace, defensively, where AMVs differ from cosplay and fanart is the argument that the work is "transformative." A transformative work (discussed more in detail adjacent session) is one where information technology merely uses the original piece of work for inspiration to create something new and unique. This is most frequently cited in cases where parody arises and the original piece of work is only used to the extent necessary to parody what information technology is based on. Some anime music videos might be able to assert this defense force 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" but to emphasize Goku being strong would well-nigh certainly neglect this defence. However, if a music video were to maybe use miscellaneous set pieces individually removed from diverse 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 piece of work is non economically viable absent-minded a cease and desist notice.
Fansubs
It is doubtful that whatsoever person who downloads torrents or digital copies of a show that they did not pay for believes that the human action is legal. Although the download itself is not a direct infringement on a detail right of a copyright holder the distribution thereof, and moreover, ane 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 non 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 business organisation 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 accept no other means of watching it short of importing the DVDs or blu-rays from Nippon (which may or may not have subtitles, permit alone a dub).
The fact of the thing is however that even if a testify is not licensed for release in the Us information technology is still protected in the The states. Several international treaties exist between nations that afford creators in i 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 merely non notwithstanding released in the United States is Still protected past U.s. code.
What fans may not be aware of, that by distributing an anime title in the Usa 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 equally well and the brandish of their products or symbols violates intellectual property police. 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 activeness 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 exist infringed when displaying the original work. This is additionally truthful for music which tin can oft be a separate license when a show features a musical creative person who is using the series to promote their band or latest single which is oft why many videos on YouTube of an anime have their audio removed by YouTube when the artist request as such. These licensing agreements tin even affect a domestic distribution equally was the case with Funimation's release of Haré+Guu which lacked the catastrophe song ohashi by Eri Umihara.
Takeaway
If all of the above sounds similar scary words and the potential ultimate downfall of the anime community don't panic. Next segment we will embrace copyright defenses, present issues in intellectual belongings that may or are impacting the anime customs and how to protect yourself from both rights holders and people who may be looking to steal your own work.
THE Data HEREIN IS NOT LEGAL ADVICE.
AN Attorney SHOULD Exist CONSULTED IF Yous DESIRE LEGAL Communication.
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dorsum to The Law of Anime Parts I & 2: Copyright and the Anime Fan
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Source: https://www.animenewsnetwork.com/feature/the-law-of-anime/2013-02-15/2
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