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This section of the United States Code prohibits the "unauthorized Fixation and trafficking in sound recording and music videos...without the consent of the performer or performers involved." In other words, it makes it clear that it is illegal to distribute music or music videos, online for example, without consent. According to the language used, it sounds like music videos are defined as recordings of live performances, rather than more abstract videos edited to reflect the content of the music. Elsewhere in the Copyright Code, phonorecords are defined as being separate from audiovisual works. But when music videos are available online, they become one more way for internet "pirates" to obtain a digital "phonorecord" without paying or receiving permission from the artist or copyright holder.
This is the only area where noticeable steps have been taken to stop the distribution of anime music videos. That is, stepping in on behalf of the interests of the musicians to control the distribution of their songs. Record companies are not beholden to the niche audience of anime fans, so are willing to act on the law when an infringement is brought to their attention. For the record company an entire creative work is being reproduced and transmitted in a music video; whereas for the copyright holders of a given anime, only relatively small portions of (if even the "heart" of) their works are reproduced. As they have done in various areas of internet music trafficking, music companies have the (moral or ethical) right perform the same way a domestic anime copyright holder would when faced with illegal distribution of an entire film or series. When a music video is downloaded, it is possible to detach the audio from the video and acquire the song on its own, or even just enjoy it in full as it plays over the video. Therefore using a song in a music video is closer to a clear-cut act of piracy than editing the video.
In this Japanese court decision, Spec Computer is sued (this is the appeal) by game manufacturer Konami for copyright infringement. Spec Computer loses and is forced to pay Konami. Konami had created a game that simulated a love story, where the player/main character would progress over a specific set of days, building personal "stats" and romantic relationships. Spec created a memory unit that could boost a player's stats and start the game at any point in the game's calendar. Konami argued, and the court agreed, that this action changed the essential contents and purpose of how the game was meant to be enjoyed, thus infringing upon the author's "right to preserve the integrity of a work." The case is similar to the Nintendo of America v. Lewis Galoob Toys case in the US, where Nintendo challenged Galoob's right to produce the Game Genie (which did basically the same thing as Spec Computer's product); Nintendo lost. Yet in Japan, the original game creator won out over the party who created the means to modify it. When comparing these two cases, it seems as if Japanese copyright law is enforced more strictly than American.
As other sources indicate, Japanese anime and manga artists happily live with fan-made comics starring copyrighted characters (called dojinshi, or doujinshi). In fact, much of the talent and creativity within the industry can be attributed to artists starting out in the dojinshi field. But in Konami v. Spec Computer it is clear that such infringement is technically against Japanese law as much as it would be against American law (even more so, given this case's similarity to Nintendo v. Galoob). So it is not the law that dictates the products of Japanese fan-culture, but rather common opinion and recognition of the positive effects to come out of certain forms of infringement.
Call#: Annenberg Library Reserve P94.65.U6 J46 2006
"The studios are now, for the most part, treating cult properties as "love marks" and fans as "inspirational consumers" whose efforts helped generate broader interests in their properties. Establishing the fans' loyalty often means lessening traditional controls that companies might exert over their intellectual properties and thus opening up a broader space for grassroots creative expression" (pp. 191)
And yet, American copyright holders still try their best to limit what kinds of fan fiction can be easily found online, in hopes of keeping some control over the perception (or decency) of their brand. None have tried to actually take a sexually explicit fan fiction author to court for fear of alienating fans and setting the wrong precedent, but they have tried to quash such expression. And the more affinity towards the fanbase, the more the fans will be willing to censor themselves in order to please their benevolent masters (of the copyright).
On page 155 (chapter 4), Jenkins mentions "song videos" as a form of fan fiction. He talks about fan fiction here in contrast to the kind of fan productions LucasFilm endorses, which can only be parody-flavored or about the fans themselves. "Song videos" are often the kind of production preferred by female fans, who take the time to explore and develop certain relationships and themes that may or may not have been present in the original work. LucasFilm acts along the same lines as the law might approach various kinds of derivative works-though it is comfortable with parodies, anything that might be seen as "expanding upon" the original universe could technically be illegal derivative work and therefore to be avoided. The difference between monolithic character properties such as Harry Potter and Star Wars and an entire (niche) medium is also very important to note. Unlike the more specific fan cultures, the anime fan culture is both less mainstream (and therefore even more dependant on the loyal and active few) and unable to be corralled and manipulated by one corporate body. Since an entire genre of cinema and comics are the focus and instead of one copyrightable property, lots of varying interests are at stake and no single one can control fans as a whole.
In 2002, American website Anime Tourist conducted a convention interview with two of the founding members of the respected Japanese anime production company Gainax, Hiroyuki Yamaga and Takami Akai. The two discuss their current and upcoming projects at Gainax, provided some details on their past at the company, as well as explaining some of the themes and such of their more famous works. Finally they speak on American localization of their works and American fandom.
An audience member asks the creators for their opinion on the music videos made from their work by American fans. Akai seems not to have been aware of them (the translation perhaps makes it a bit confusing), but Yamaga appreciates the fan-made works. He discusses the often-pointed-to model of manga and anime creators getting their start in the industry by writing and drawing dojinshi, or unlicensed fan comics based on copyrighted properties: "as Gainax, they got their start doing similar stuff so it's very hard for them to say, ‘No, We won't allow that.'" As a company, they have to plead ignorance that such fan material exists or else even Japanese copyright law would dictate that they shut infringers down. He points to the line between fan/hobbyist and professional as the deciding factor in whether or not infringing work is worth going after legally; in the Japanese manga business, the line is extremely blurred as young artists very often earn their stripes and build their skill on dojinshi before tackling original projects of their own. Japanese creators such as these may not be aware of the American arm of fan's use of their characters and work, but they are used to letting such forms of use slide within their Japanese fan culture.
Lessig writes about the recent development of a record company, Wind-Up Records, requesting AnimeMusicVideos.org (perhaps the largest online collection of anime music videos and "AMV" artists) to remove all links to music videos containing music by their artists. These artists included Evanescence and Creed, bands popular among fans and with a large number of music videos on the site, roughly 3,000. He points to the AMV movement as a sign of the growing read-write culture allowed by the internet and computers that new generations are increasingly participating in. Where content owners try to enforce a "Read-Only" environment where viewers/users can look, but not touch, Lessig advocates the development of creativity and benefits thereof for those (often young) fans who take it upon themselves to add to the artistic tableau of a medium. He even relates a personal anecdote about his son, in which the only way he was accepted to a prominent university was by showing them the AMVs he had made as an example of his artistic talent. Lessig sees the struggle between copyright holders and young, artistically motivated fans as the new battle to be fought, and one in which it should be easy to see which side is in the right. Of course, according to current US copyright law (backed by copyright holding corporations) such employment of "Read-Write" culture is illegal. The internet, however, has afforded both an opportunity to put such artistic expression on easy display and an at least temporary hurdle for content owners to leap in order to stomp down on "unfair" uses due to its expanse and level of anonymity.
Hatcher examines the workings of the American anime industry, paying the most attention to the history and physical process of fansubbing. Fansubbing is the process by which fans take Japanese anime (taped from broadcast television or DVD/home video), translate it and edit the video to include their own subtitles. Fansubs used to be distributed on VHS either in stores or among fan clubs, but are now almost exclusively found online. Hatcher suggests that the anime industry, though it has unquestionably benefited from fansubbing and other forms of high-level fan involvement, is now "held hostage by the internet and their otaku-consumers." By now professional licensing and localization companies can do much of their own advertising and market research due to the growth and age of the domestic marketplace; yet such companies know that to crack down on the core loyal fans will almost certainly result in a huge backlash from those on whom they rely most. In contrast to common internet "pirates," fansubbing groups commit infringing acts in the open (as publicized on websites or individual named in credits attached to their work) and are confident in the moral high ground of their actions (if a work is not yet licensed in America, it is seen as "perfectly legal" to make it available in fansubbed form, for example-despite international copyright laws); the common conception of "anime fair use" makes many technically illegal uses practically immune to legal retaliation
The almost forced acceptance of the fan use of anime in America, in order to maintain loyalty and relevancy among fanbase, makes anime music videos relatively easy to allow for domestic copyright holders. A lawsuit that attacks a now established tradition within the community would alienate much of a company's fanbase, driving them to other sources-including illegal ones if nothing else is available. Given the companies' general tolerance of (or lack of legal action against) the availability of full episodes or movies online, music videos are a much easier sell as "advertisements" for their products as opposed to replacements or illegal derivative works. And given the industry's heavy stake in the convention scene, it is clear that the community aspect of anime fandom must be maintained and courted in order to stay viable.
Leonard's paper on American fans' use and distribution of anime goes into great depth on the legal issues raised, and often ignored, in regards to copyrighted works. The original Japanese copyright holders spurred on American fan-imports and fansubs by "abandoning" the market early on; in this way it was law-breaking American fans, clubs and conventions that created almost single-handedly what is now a visible and profitable market for the Japanese owners and the American licensors. Currently, though the Japanese owners do finally play in the American marketplace, they are nearly as willfully ignorant (in practice) of fan infringement than they were when America was still written off as an impossible market. But while first this ignorance was a result of their not thinking any American infringement could possibly hinder them financially, reasons for this now include the historical and continued support and "free publicity" for anime that American fans would not be so willing to embrace legitimately had it not gained buzz from prior illegal distribution among fan networks. Yet Leonard outlines all of the various ways that obtaining, translating, distributing and showing fansubs break any number of American and international copyright laws. Though fans often cite fair use as a defense for their actions (though a case has never been brought to court), Leonard dismisses all of the potential factors that would constitute fair use save for the "purpose and character" in the commerciality of fansubbing; in this case, fans often do their work for no profit and as a courtesy to fellow fans. In every other sense, their use is wholly unfair.
Here we see the rough legal guidelines that both Japanese and American anime copyright holders tend to adhere to when dealing with fans. In general, fan's use of anime is forgiven and often ignored, unless it exists in direct competition with legitimate localized releases. Anime Music Videos (not mentioned by Leonard) are another, altogether less potentially dangerous (than importing and fansubbing) form of "free advertising" for anime and of strengthening the fan networks that built and maintain the American anime audience. Again, Japanese copyright holders are shown to display a willful ignorance of American fans use for the most part.
Mehra explores the disconnect between Japanese (and American) written law and the tolerated success of dojinshi, a growing industry that could even be seen as direct competition for its copyright-holding cousin manga. Part of this issue is explained by the differences in which America and Japanese copyright law (especially that concerning character copyrights), though very similar on paper, are interpreted by courts and the common man. The few key differences include affording authors moral rights (Mehra points to the Konami case mentioned above as an example, given their ability to control how their characters are portrayed) and lacking a "generalized fair use provision." Mehra discusses the various reasons manga artists and copyright holders generally do not prosecute dojinshi artists; such reasons could include the social norms among artists where the good of the industry (in recruiting new talent, filling a niche unfillable by traditional manga, or catering to all its audience's favor) as a whole is placed before individual needs and the lower profitability of Japanese litigation (not to mention the average dojinshi author's common lack of real funds). Taking the dojinshi model, Mehra claims that "in some contexts, a certain level of fair use may help generate an economically efficient level of collective action;" in other words, allowing some level of infringement can foster a stronger and more creative artistic industry.
The reaction of the Japanese manga artist is examined here in relation to artifacts of fan culture. As manga and anime have penetrated foreign markets, it has brought some of that mindset with it, particularly to America. To begin with it sprang from fans' proactivity creating the American market itself, but the Japanese fan mindset has only been strengthened by the original authors' willful ignorance, and in some cases support, of classically infringing fan works. Despite the differences in American and Japanese case law concerning character copyrights, Japanese characters remain for the most part fair game for dojinshi, music videos, and the like on either side of the Pacific.
This case concerned a search engine run by Arriba Soft displaying thumbnail images of Kelly's copyrighted photographs. In deciding that the use was fair and therefore acceptable for Arriba to continue, the court set an important precedent in applying the guidelines of fair use to determine infringement. Four basic principles could be applied to a use to weigh whether or not it is legal: the purpose and character of the use, the nature of the original work, the amount or substantiality of the portion used, and the impact upon the potential market for the original work. According to how a use fares in each of these categories, the court may decide that it is fair.
First of all when it comes to anime, the nature of the original work is almost never anything but pure entertainment-and thus not favorable for allowed fair use. Sometimes anime music videos honestly transformative, when they display completely new stories or mash-ups of various anime. All (or most) by definition add a certain basic level of creativity not necessarily found in the original. But they all still use copyrighted characters in a (most often) non-parody work of original fiction. They also "quote" heavily (given that a single anime is the focus) from a single artistic source for arguably no critical/analytical point; although usually only 2-5 minutes of footage are taken, those few minutes will often contain the "heart" of the original work. AMVs are often concerned with bringing out themes, relationships, plots or action sequences already visible in the original anime. Thus, they are a sort of highlighted text thrown into a tumble dryer. While a level of creativity is evident in virtually every anime music video, that alone may not excuse the distribution of material centered on copyrighted and protected characters. And although they are not sold for profit and their character is largely to enrich the fan community and inspire creativity, there are still ways in which distributors indirectly benefit financially-through internet ad space, or through expensive convention tickets where AMV contests/showings are a main attraction. However, it would be hard to make a case claiming AMVs impacted the market for the original product. They surely straddle the line between fair and unfair use, but as far as the American copyright holders are concerned, the most important aspect of music videos seems to be their usefulness as tools to excite existing fans and advertise to new ones.
Clean Flicks was one of several companies that would purchase a normal retail DVD, edit it to remove offensive material such as sex, profanity, and violence, then sell it to consumers who wanted family-safe entertainment. The Colorado District Court decided that such a product infringed upon the creator's original intent and vision for a given work and creating and unlicensed derivative work; further, it constituted illegal copying and distribution over which the copyright holder should have control. The court denied a fair use defense completely. In addition, DVD encryption must be cracked to produce these copies, and that itself is illegal. The Family Entertainment and Copyright Act of 2005 clarified that this kind of product was illegal, where programs that changed movies on the fly (creating no "fixed" clean version) were permissible.
Here the major modern precedent is set for the illegality of the sale and distribution (even if not infringing on the market for the originals) of derivative works that change the expression of the original authors without their consent. If films with swearing edited out do that, so surely do music videos where a 26-episode plotline is boiled down to a 3-minute montage, for example. But where Clean Flicks was found to be adding nothing creatively to the original works, AMVs add both a new soundtrack, wholly new editing, and a new or simply focused narrative (or at least a novel collection of moments). This is a strong precedent for the ability of anime copyright holders in America to take action against distributors of music videos containing copyrighted footage. As further sources demonstrate, however, legal action against fans (especially those ardent enough to create music videos) is exactly what anime distributors want to avoid doing no matter how flagrantly the law is being broken. Worse than the music video issue is that of fansubbing, which only transforms works to the extent that subtitles are added, and nothing more; these are distributed over the internet and (mostly in the past) through retail and continue to exist without real legal action against them.