Collected Responses to Otakon’s Artist Policy Announcement

The Anime News Network reported that sale of fan art based on properties that the artist does not own the copyright for or have a license to produce will not be permitted at the Otakon artists’ alley this year. The issue turned out to be not quite as broad as that. Here are my collected responses from forums (so I don’t lose ’em).

First, comments on earlier posts- doujinshi are sold in Japan, out in the open in commercial stores, not merely photocopied and distributed.

You do not need to register your copyright for your materials to be copyrighted. The FAQ from the US Copyright site is referring to the benefits you can receive from registering your copyright (mainly damages from lawsuits, as well as a record of your registration). But your material is copyrighted as soon as it is set in expression.

Copyright infringment does not need to prove actual harm. Noncommercial use may also be infringement. Commercial use is likely to result in higher statutory damages, and more likely to be criminal infringement rather than civil infringement.

We in the anime fan community tend to use ethics associated with practices that may or may not relate to actual copyright law- for example, pulling and stopping distribution of fansubs once the works are licensed, not supporting commercial bootlegs, and so on. I think those choices are great. The problem is convincing copyright holders that they are sufficient.

Copyright and trademark issues are and will continue to occur as the relationship between fans, creators, and publishers occur. Overly restrictive trade restrictions and overly protective copyright and trademark views in the US will affect the fan communities.

These laws aren’t set in stone, and there are grey areas when it comes to fan activity. However, two big things will be affecting fans. First, the threat of a lawsuit can affect fans directly (which says nothing about the merits of the case). Second and related, liability concerns as anime grows more popular and conventions increase in size- again, whether or not there is an actual issue. The potential for a lawsuit is enough to worry about.

Let’s take any given convention. Where could there be questions of legality?

-Fansubs. (Look at ANN’s article, It brings up some good points, though it’s not entirely correct. I don’t agree with the opinion that “the Japanese copyright system is cleaner and more straightforward as to what is permitted by law than the archaic American copyright law.” More importantly, the editorial’s assertion that all four aspects of fair use must be met for a use to be fair is not correct at all).
-Showing licensed videos. (Potentially affects the exclusive right of public performance.)
-Cosplay (Potentially affected by copyrights and trademarks).
-Fan Art (Potentially affected by copyrights and trademarks).
-Music Videos (Potentially affected by copyrights and trademarks).
-Dealers Room. Selling of art. Selling of imports. (Potentially affected by copyright, trademark, and international trade law, most recently brought up by Funimation and FMA).

So if a convention was really going to be worried- well, they wouldn’t have much of a convention. Also, such a sweeping policy ignores that a use might be fair, parody or not. It would be easier for them to review only parody cases, but to be fair they should probably review all submissions. Plus, only a court can determine whether any given use is or is not fair- they’d just have to get legal advice or make good arguments. Anime smile;

Interestinly, doujinshi and other fan activities flourish in Japan even though Japanese law is for the most part just as restrictive as US law. The Japanese aren’t so quick to dismiss fan materials, however, and aren’t as quick to initiate legal action. (Or, as Lawrence Lessig’s Free Culture notes, perhaps there just aren’t enough lawyers in Japan.)

At any rate, copyright holders can ignore the use of their copyrighted material to some extent without losing their rights. It’s a bit more complicated for trademarks, since they do need to defend them or lose them. However, they can give easy and generous licensing terms if they chose. I think it’s in their best interest, personally.

Edit: I wanted to mention that I’m not really sure where I fall about Otakon’s policy just yet. I understand their concern for liability, but I’m concerned about other implications of the policy.

mufurc wrote:
Those done by more successful circles who can afford printing, yes. But most people who sell their doujinshi at events like Comiket can only afford to photocopy a small amount of them at a local convenience store (there’s even a term for these doujinshi, but I can’t remember it). Note that not all doujinshi are comics, many of them contain either only fanfics or both comics and fanfics concerning one or more series. Basically, most doujinshi are your usual very amateur fanzine, the kind one can buy for a few bucks at sci-fi/fantasy/other conventions.

Righto- I was talking more about the scale of doujinshi availability. The commercial fan market is huge, and out in the open. In Akihabara, for example, I stopped at a manga store where three of the five stories were doujinshi. It was sold all over, though. Lessig’s Free Culture has more specific numbers, as does a paper from SSRN that I’ll link later if anyone cares.

neko ewen wrote:
(I’m not even close to being a lawyer, but) as I understand it the thing with copyright is that it’s mainly handled through civil law rather than criminal law. The only way to really punish violations is by suing someone, which dumps us squarely into that odious territory where having money to spend on laywers plays a massive part in determining who wins out in court. When it’s a multinational corporation against an individual, the 800-pound gorilla can put the terms of the copyright just about anywhere he wants, and very is working to force him to make those decisions with regard to what’s best for public interest.

The scale of infringement determines whether or not it’s criminal or civil. If it’s done for commercial gain or advantage and passes a certain monetary value, it’s criminal. If it’s criminal, law enforcement can investigate. If it’s civil, the copyright holder has to initiate action. You’re right- those with financial resources hold a huge advantage.

Whether it’s harmful or even helpful (like serving as free advertising or how emulators are in some cases preserving video games that would otherwise be all but gone from human history) doesn’t matter; the copyright holder has the authority to decide when, where, and how a work can be duplicated. There are some exceptions for fair use, not to mention some things worked out as compromises (music is played on the radio at a much reduced fee because it serves as free advertising).

Right, except for in determination of a fair use. One of the factors to evaluate when looking at fair use is the effect on the market.

That particular radio compromise is actually a statutory one- the copyright holders weren’t all that thrilled with it at the time. Luckily, Congress passed the law and it ended up a good solution for everyone. Anime smile

Zrana wrote:
I just wanted to point out the COPYRIGHT when it comes to images is teh ACTUAL PARTICULAR IMAGE. Fanart that doesn’t COPY or TRACE other existing images isn’t Copyright infringement. It’s trademark infringement. (And I don’t know much about that, I’ll admit it.)

Meaning–the artist still owns teh ORIGINAL ART. (As long as it’s Orignal, even if it borrows characters from elsewhere.)

If the con means to crack down on COPIED ART, then I’m all for it. But unless companies say “NO! They can’t sell blah blah blah for which WE own teh Copyright and trademarks for!” then the con is treading on dangerous grounds with the fanbase for forbidding all fanart.

My interpretation is the rule is more about traced/copied kind of fanart–I’ve seen people selling stuff like this, and it always irks me when I see it.

Hopefully my interpretation is what they MEANT in the mistakenly released not finalized announcement. But many don’t know the difference between copyright (exact image/sound) and trademark (likeness, names).

(I’m a self declared ditz, so I MIGHT have had my information wrong.)

I’m afraid that’s not correct. ^^; There are a couple of things to note when it comes to copyright and trademark.

Copyright is comprised of several exclusive rights which come with exemptions to those rights. Copyright does protect original and exact expression once it’s expressed in tangible form. However, copyright also covers derivative works- works based on already existing works. There doesn’t need to be any tracing involved- something based on the character is a derivative work. (It gets a little more complicated with characters and expression of “types” of characters, though.) The creation of the derivative work might be a copyright infringement (assuming one of the exemptions isn’t involved).

Technically, if a work is a derivative work, and the work was not authorized by the copyright holder, the artist of the derivative work does not have copyright in that derivative work (again, unless an exemption comes into play). Because that work was an infringement itself, anyone who copies that derivative work would still be infringing the rights of the original copyright holder. If the copyright holder sues the creator of the derivative work, the courts may very well grant copyright of the derivative work to the copyright holder.

At any point that there is customer confusion, or when an unauthorized good can be mistaken or substituted for an authorized good- you might have a problem with copyright (weakens possible exemptions) and more often trademark.

orobouros wrote:
It sounds silly to me. How do they expect to enforce such a rule?

1) Not everybody knows every character. The well-known may get axed, but who’s going to know the difference between on original character and Marrianne Louvre from the 1982 show Star Musketeer Bismarck?

I think they’re concerned about obvious infringement. They probably want to practice due diligence for liability concerns.

2) How is Otakon to justifyably claim something is or is not either original work or parody? What if somebody creates an orange-clad ninja called Narootu? Or a wolf-ish samurai Ino Yashu? It was my understanding that all such fanart was considered parody. If not, where does one draw the line?

While it’s probably a good policy on paper (however it turns out), I can only see difficulty in enforcing it.

More difficult. Those examples you gave are very likely not parody. In the legal sense, parody comments or criticizes the work that is being critized. (Which is confusing, because in literature that’s usually referred to as satire, which means something else entirely in the legal tradition. Razz) Those probably wouldn’t be considered parody. Because parody is a form of fair use, no one can say with 100% certainty if a use is or is not parody until that actual case comes to court. What they can do is get legal counsel and create a policy that shows that they are using due diligence and use their best judgment whether or not a work is a parody.

Colonel Wolfe wrote:

Otakon is taking it upon themselves to police their own events at their own discretion. If I create a piece of FanArt, I have the right to sell it, it’s a right of Fair Use and since they are not mass produced, no license is needed to sell it.

Sadly, fair use is not a right. Fair use is usually seen as an affirmative defense to copyright infringement, an interpretation which I actually disagree with to some extent. It’s not a right, however- fair use is simply an exemption that allows use of copyrighted materials that is not copyright infrigement.

You do not necessarily have the right to sell it. Looking at fan art, there are several potential infringments that you’d need to look at to see if your actions are a fair use. For example:

-The creation of a derivative work.
-The display of the derivative work.
-The sale of the derivative work.

Each of those actions is potentially infringing. Luckily, fan communities are such a big part of the anime and manga industry that the copyright holders have not to this point acted against them, with a few exceptions. So it hasn’t been a big issue, and I hope it continues to not be a big issue.

RainbowRaven wrote:
Reading through this discussion has brought a few worries to the fore for me. This year’s Otakon will be might first.

Not many who have written have really analyzed the word parody. Most definitions of the word parody fall along the lines of “a work , often humorous, that imitates another work, often serious” as well as “a satiric imitation of a work or of an author with the idea of ridiculing the author, his ideas, or work.” Another definition is that a parody “imitates the techniques and style of some person, place, or thing. Parody is used for mocking or mocking its idea of the person, place, or thing. Monty Python is an example of parody.”

I really enjoyed this post. The policy decision concerns me primarily because of implications it might have on the rest of the community. What fan activity at a convention doesn’t raise copyright concerns? Cosplay, fansubs, showings, dealers, etc… At the same time, the question of liability is going to be more and more of an issue, so it’s a difficult situation that I can sympathize with. It looks like the organizers are seriously considering the implications of this decision, and I appreciate that.

The one thing I wanted to mention here was about parody, like the quoted post. Parody is not a “loophole,” but an important means of comment and criticism. While “fan art” does not have legal meaning or weight, parody does- one of the most important and cited cases in the US involving parody is Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). The case notes that parody can be commercial and that parody can be done without the permission of the copyright holder- in fact even against the wishes of the copyright holder. As a fan convention that celebrates art and artists, it’s a fine line between the wishes of copryight holder and the expression of contributing artists. That’s going to be a difficult mark to place. Anime fans have been walking this line for many years, with fansub practices- but it’s still difficult.

As far as parody goes, I think it likely that (using examples on the board previously) a yuri depcition of two characters is more likely to be parody (if using to comment or criticize on the existing work) than the animeniacs bag (which also gets into trademark infringement). But that’s why I’ll be waiting for the finalized policy. ^_^

Krelian1 wrote:

My current understanding of the way the policy might emerge sounds like parody is fine. Excellent. My painting of the Azumanga crew dressed as the Sailor Warriors is safe;-) I get the feeling that mass-produced prints of existing characters is out. However, the subject of commissions is still gray, and quite important. That, I feel, is true fanart. Getting an original pen/pencil sketch of your favorite characters is quite important, and this is on the bubble right now. This looks like a pretty deciding factor for a lot of people, so I eagerly await what the outcome is for these.

We’ll need to wait for the policy. From a legal standpoint, your Azumanga crew dresses as Sailor Warrios *might* be parody, but it might not be. Parody needs to meet the criteria for fair use to not infringe. A good analysis of a parody case by Justice Souter can be found here:
Justice Kennedy has a similar concurring opinion.
So… we’ll see what the policy says. ^_^

AMVs/Cosplay are frequently being brought up as a counter-point. Please just cut it out. Several times by now, Otakon has stated that they asked for, and received, permission to play the music in the AMVs. I can’t recall if they mentioned anything about the video(curse my failing memory…senile by 23), but the AMVs themselves are not being sold or distributed. Just displayed. Now they may be distributed on, but the mess over there is another story. And to bring up cosplay is pointless. It’s artistic display, neither sold nor distributed. There is a fine legal line being crossed once something is placed on the market for sale or distribution. I’m no expert, so I can’t clarify, but feel free to look it up.

It’s not that simple.

A normal license to play music is usually not a license to play derivative works of the music. The convention must still rely on fair use to show the music+video and the video itself. Having the license certainly helps a great deal, but it doesn’t abrogate the issue altogether.

Cosplay is more complicated than that. Not selling is not a defense of copyright infringement. The “fine line” is usually an ethical distintion the anime community makes between commercial and noncommercial fan activities. The legal fine line is more between civil and criminal infringement. The distinction does affect which type of infringment (civil or criminal) is occurring and what potential damages are (statutory damages are higher for criminal, or may fall into “actual harm”), as well as the fact that a commercial use is less likely to be fair. “Display” is one of the exclusive rights of the copyright holder, whether for profit or not for profit. So, cosplay and fan art certainly have the potential for both copyright and trademark infringement, even if no money changes hands (and let’s not even get into potential discussions about what can qualify as “commercial gain” Razz). If infringing, it’s more likely a civil matter, so legal action can only take place if the copyright holder presses the issue.

In my opinion, cosplay should be a fair use- but what conventions and cosplayers need to watch for are whether or not the copyright holders or their representatives are likely to sue. This has not been the case in the past.

RachelAnn wrote:
Hi hi!

For those of you who knew I was sick, I’m much better now! (Hmm… I suppose for those of you who did NOT know I was sick, I’m STILL much better now Laughing)

Welcome back. Glad you feel better. ^_^

I’m sure you’ve all heard that disclaimer they run on every NFL football game broadcast on TV since the dawn of time: “This broadcast is the sole property of the National Football League. Any re-transmission of this broadcast for commerical or personal use without the expressed written consent of the National Football League is strictly prohibited.”

Is it enforced? Well, yes. But at what level is it enforced? Sure, it clearly states that if you tape the game, then play it again in the privacy of your own home, the FBI can legally break down your door and haul your sorry, copyright-infringing butt to federal prison.

And over the past twenty years, I’ve probably broken that rule three or four times. Embarassed *hangs head in morbid embarrassment and shame* Embarassed. I was never caught, though. My door still hangs firmly on its hinges, unbroken-down. In all honesty, if I hauled my OWN sorry, copyright-infringing butt to the Feds, they would chuckle and toss me out.

Why? Because their lack of manpower dictates they prioritize. Sure, if the FBI had a Copyright Infringement Task Force of eighty million people, I should worry. But they don’t. They have a task force that prioritizes on the most egregious offenders.

Small clarifcation. That’s not why the FBI doesn’t investigate. Just because the statement says that private use is prohibited does not mean that it’s legally prohibited. It’s the same thing with “all rights reserved” notices. They really don’t affect private noncommercial copying, although the rights holders like to make people think they do. ^_^

In this case, their declaration is an issue of a license issue rather than statutory copyright law (similar but less useful than a license by assent); it’s completely unenforceable and very likely not valid. The private actions that are ordinarily the exclusive province of a copyright holder are distinct from public actions. If you also look at the notice, and the notices that come in front of movies for that matter, they make it a point to note that criminal copyright infringement may be investigated by the FBI. Private actions, if infringing (which they may not be, since the law mainly covers public performance, public display, etc.) are a civil rather than criminal matter- so the FBI does not have the authority to enter your house for that reason. So you probably don’t actually need to worry there.

Sorry for the nitpicking- I’m a copyright scholar as well as anime fan. ^^;

Other than that, I think the new policy is pretty good. It examines the rights of the copyright holder and the wishes of the author as well as your liability.

1 Comment »

  1. copy this blog » The Melancholy of Suzumiya Haruhi said,

    January 3, 2007 @ 8:29 am

    […] The anime community has had a long tradition of making works available in countries outside of Japan before they’re released in the form of fansubs, copies that are subtitled and distributed by fans. The practice of fansubbing has evolved a great deal since the creation and increase in use of the Internet. At any rate, it’s one of the reasons anime is so popular in the U.S. now. Now, Japan has always had interesting practices regarding fan based works. I’ve mentioned some of them before in the Otakon thread. Basically, a lot of things go on that are technically copyright infringement- such as the creation and sale of derivative doujinshi (fan comics)- but for whatever reason, some companies don’t enforce their copyrights. Even in the US, different companies have been known to appreciate fansubs. The fansubbing community has it’s own ethical standards as well- once a work is licensed in the U.S., distribution generally stops. […]

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