The focus of my research was participatory fan culture. I investigated the practices of dojinshi and fansubbing in Japan and tried to understand why these infringing fan activities are generally permitted. Dojinshi is homemade manga that is sold by amateur fan artists. Fansubbing (which I focus on to a lesser degree) is the practice of copying and dubbing Japanese animation into English. Then, I tried to determine whether the rationale that permits dojinshi and fansubbing in Japan could be imported to the United States to govern the treatment of creative fan endeavors like fan fiction and fan films. I've concluded that to allow a dojinshi-like commercialization of fan work in the U.S., we would have to refine fair use analysis to protect derivative work that complements (rather than competes with) underlying work.

 

This letter, posted on a website that monitors the “legal climate” on the internet, contains a cease-and-desist order to a Texas fan fiction website manager responsible for displaying adult fan fiction based on the Harry Potter series on her website. The law firm that issued the order, Theodore Goddard, represents Christopher Little Literary Agency and J.K. Rowling, the author of the Harry Potter novels books. The attorney who writes the letter explains that the sexually explicit fan fiction, which posted on the site in question has concerned (i.e., distressed) clients Rowling and Warner Brothers (the studio behind the Harry Potter films), who wish to preserve the integrity of the Harry Potter franchise. While the firm acknowledges that “innocent” fan fiction does not upset Rowling and Warner Brothers, the sexual material on the website in question threatens the integrity of the Harry Potter brand and could quite easily be accessed by children, especially given the Harry Potter's popularity among youth. The attorney requests that the material in question be removed from the internet and not be disseminated in any other way.

This letter significantly complicates the argument that fan based creative activities do not harm underlying work. Here, works of fan fiction with erotic themes are seen as a threat to the integrity of the work that they are based on. Illicit fan fiction's potential to tarnish the reputation of original work could harm the market of underlying work and could thus disqualify fan fiction from fair use protection. This consideration must therefore be reflected in arguments that attempt to defend fan fiction, particularly by those who wish to legally commercialize it. If anything, the existence of illicit, market-harming fan fiction—with no aims of legitimate parody—proves that a generalized, sweeping concession allowing fan fiction is inappropriate. Rather, fan fiction writers must individually decide whether to consider their work fair use; in the meantime, cease and desist letters such as these will continue to make up many writers' minds for them.

This article focuses on the practice of literary rewriting, where characters and plots of existing literature are developed into new works. It defends the recent body of literary rewrites as a genre unto itself, but warns that its practice is threatened by oversimplified copyright doctrine. The author first discusses 3 modern literary theories that complicate notions of originality and in doing so challenge copyright's authority to bar rewriting. The ideas of “the death of the author,” “the anxiety of influence,” and “marginality” in literature destabilize the concept of authorship and suggest that rewriting is a necessary method for creating new, valid works. It cites Alice Randall's The Wind Done Gone as a rewrite of Gone with the Wind which acts on the literary theory of marginality by giving a voice to slaves from the world of the original novel. The novel's allowance as parody, however, is an oversimplification of its nuanced commentary. This parody-based fair use qualification ends up limiting works of rewriting that don't necessarily criticize underlying work, but take new perspectives and shed new light upon it. The article further argues that rewriting always occurs in respect to significant “canon” work. The existence of literary rewriting simply identifies works that have been already been rewarded with success; it does not inhibit innovation or bar progress.

This article is significant for its support of rewriting as a valid means of expression that propagates new ideas, rather than opposing it as a lazy practice that inhibits innovation. Although rewritten work does not always parody underlying work, it is innovative because it offers new and original (to the extent that the word may be used) perspectives on older works. Furthermore, rewriting tends to identify original works by copying only those works that are considered significant, or “canon,” enough to be worth updating. The article does not refer to Japanese dojinshi. However, a similar understanding of rewriting appears to guide the response to dojinshi in Japan, where original characters are rewritten into new situations or altered in a way that changes our understanding of original work.  The idea that work can be fair use without being parody has become a major theme in my research and supports the argument that certain types of creative fan endeavors should be protected as fair use.

 

 

In this article, Daniel Pink presents a number of insights into the world of Japanese manga, focusing specifically on the practice of dojinshi, or the fan-based creation and sale of derivative manga, and its apparently unchallenged transgression of Japan's well articulated copyright laws. Pink investigates why publishers tolerate the sale of dojinshi, work that borrows the characters of official manga, in markets across Japan. He proposes several reasons for the stable relationship between manga copyright holders and the infringing party. First, dojinshi is practiced by many manga readers; allowing it keeps the fan base happy, and even nurtures new artists that eventually enter and sustain the mainstream manga industry. Secondly, dojinshi tends to promote the sale of manga that has inspired it. Finally, by monitoring trends in dojinshi sales, the mainstream industry can conduct a sort of free market research. Publishers' acknowledgment of these benefits of dojinshi results, Pink explains, in an unspoken agreement between publishers and dojinshi artists, whereby artists may sell their derivative work provided they only print limited editions of their work and do not attempt to compete with the manga from which they “borrow.” Pink offers that this approach to dojinshi—a tolerance and unspoken agreement that benefits both parties--is a viable business model for handling intellectual property, one which companies in the United States might do well to adopt.

This article explains the genius of the Japanese manga industry's intellectual property policies by showing how it successfully reconciles clever business with strict copyright law by simply choosing not to litigate. The industry's leaders recognize the benefits of fan infringment. They also understand that fans want the freedom to continue practicing dojinshi too much to risk it by attempting to compete with the mainstream market. They further realize that attempting to amend Japan's Copyright Law would be tremendously difficult and ultimately unnecessary as long as the current system works. The industry's initial response to dojinshi, that of watchfulness instead of hasty litigation, appears to have paid off. This recurring idea in my research has led me to contend that the tacit agreement resulting from the manga industry's watchfulness may ultimately be the most intelligent way to conduct business in a world governed by strict copyright laws that would be difficult to change.

    This spring 2007 ComiPress article (a translation of Japanese newspaper Asahi Shinbun) reports the official apology of a dojinshi artist to Shogakukan, a publishing company that accused him of infringing the copyright of the manga intellectual property Doraemon. The artist also agreed to return a portion of his profits to the publisher. The amateur artist had allegedly sold over 13,000 copies of Doraemon—The Last Episode, a dojinshi manga which he claimed was the “final” installment to the Doraemon manga series. The manga was apparently highly regarded for its art and story, both of which seemed true to the original series. The original Doraemon series was never actually “concluded” because its author, Fujiko F. Fujio, died in 1996. Shogakukan considered the massive scale of the dojinshi comic to be infringing on its rightful market. An official for Fujiko Productions, the studio that handles Doraemon manga today, claimed that while the company allowed dojinshi sales among “dojin circles" (fan groups), the sales of the amateur manga were too significant to ignore.

    This article documents a significant breach in the tacit agreement typically honored by both dojinshi artists and the mainstream manga publishing industry. The dojinshi author's incredibly widespread sale of his infringing work appears to prove that the industry's tolerance of dojinshi sales is misguided. However, Shogakukan's handling of the issue suggests otherwise. The publisher did not immediately file a lawsuit, but rather complained to the infringing dojinshi artist. The artist, in turn, acknowledged his mistake and was willing to pay the company damages settled out of court. Rather than bringing the issue to court in a drawn-out, protracted lawsuit, the parties involved reached an agreement to maintain the balanced system that benefits both sides.

 

 

In this article Salil Mehra discusses the practice of dojinshi, or Japanese fan-made derivative comics, and its implications for copyright law in both Japan and the United States. He investigates the economic and social incentives fueling both sides of the dojinshi movement, making particular effort to understand the Japanese system in context of American copyright concepts of fair use and economic efficiency. He divides his dissertation into four parts, focusing on the ubiquity of comics in Japanese culture; a comparison of Japanese and American copyright law; the Japanese comic industry's tolerance of dojinshi's infringement; and the implications of this tolerance. After briefly discussing the artistic and economic history of manga and anime comics, Mehra compares American and Japanese copyright law and precedent rulings, specifically in regard to cartoon character copyright. He even attempts to evaluate dojinshi by the four factors of fair use analysis and court precedent involving cartoon character infringement, and finds that dojinshi would not pass by American standards. The similarity of the two copyright law systems, he offers, suggests that the grounds for a legal action against dojinshi are certainly evident should the comic industry choose to pursue it. The fact that the industry generally has not taken filed complaint against dojinshi artists, however, indicates that there are rational incentives for tolerating dojinshi. Mehra notes that culturally, Japan is a less litigious nation than the United States, and winning copyright cases are typically not nearly as lucrative as American ones; this is likely a deterrent to lawsuits in the manga industry. Furthermore, mainstream comic artists might tolerate dojinshi in order to appease their fan base--an artist could ruin his reputation among fans by filing a lawsuit against a loyal, albeit infringing, fan. Discussing commercial reasons to not litigate, he posits that dojnishi ultimately promotes the original work and raises new artists that can eventually enter the mainstream system with ideas of their own. He closes by calling for a reevaluation of the American notion that greater protection yields more or better intellectual property, as well as acknowledgment that a system akin to dojinshi may promote innovation and benefit collective industry.

Mehra's article is unique in its attempt to reconcile dojinshi with Japanese Copyright Law. His investigation of court precedent in cartoon infringement suggests that dojinshi is indeed a unique situation. By comparing Japanese and American copyright laws and demonstrating how alike they are, he proves that the creation and sale of dojinshi is not simply allowed in Japan because it has weaker copyright laws than the U.S.--other factors (cultural, economic, etc.) must account for the dojinshi phenomenon. Mehra is also unique among dojinshi scholars for making pains to demonstrate that the industry's tolerance of dojinshi has as much to do with the legal atmosphere of Japan as the commercial benefits of allowing the practice to continue. Furthermore, he emphasizes that with the dojinshi system, individual artist's interests are sacrificed for the collective good of the manga industry. In other words, an individual artist must agree not to protect his work from infringing artists in order to maintain the system that benefits the industry. This is all important for my paper because I investigate whether the fan policies of entertainment industries in Japan are transportable to the United States. The comparison of American and Japanese laws and cultural circumstances is thus critical to determining my argument.

In this article Cathy Young acknowledges common complaints against fan fiction but offers that the practice may not entirely deserve the stigma that has been attached to it. While Young concedes that there are many, many poor-quality fan fiction stories circulating the internet, she disagrees with broad generalizations that the practice constitutes intellectual laziness or theft. In many works of fan fiction, she argues, there is a significant degree of creativity and effort; some fan fiction is arguably quite good. She refers to one Australian fan fiction writer who has done significant historical research to write a sequel to the 2004 Phantom of the Opera film, in which she develops the film's characters in original and unexpected ways. The challenge in many other fan fiction pieces, Young continues, lies in inventing new circumstances or alternate universes for underlying works and adapting existing characters to them. Because fan fiction is available to virtually anyone on the internet, the best works tend to receive the widest readership. Young also maintains that rewriting and appropriation is not an old practice, but one that has resulted in significant artistic works throughout history. She cites Goethe's Faust as based on an older work by Christopher Marlowe; likewise, Shakespeare's Romeo and Juliet is a classic retelling of an story, and it continues to be reworked in new ways. The only way to vindicate fan fiction and entirely erase its stigma, she concludes, is to continue encouraging high-quality fan fiction that will raise standards and draw in more talented writers.

Young's argument is interesting—and serves the purposes of my research—because it praises the democratic aspect of fan fiction, whereby anyone can write, but only the best fan fiction tends gets popularized by recommendation throughout fan circles. This counters the argument that fan fiction lowers the bar of entry to writing and allows all sorts of “artistic” drivel to be seen by all. Rather, the fact that so many people read and review this sort of work means that the best writing will be praised and that bad writing will be discouraged and improved. By extension, all creative fan endeavors that reach wide circulation from today's technology may be likely to increase in quality and effort, as the public has greater opportunity to comment on it.

 

In this article Nathaniel Noda discusses fan-based creative activities and their relationship to the copyrighted works that they draw from. He focuses specifically on the practices of “fan subbing” and “dojinshi,” but emphasizes the application of his findings to other derivative creative efforts (or “fan-based activities”), including the writing of fan fiction. Fan subbing, or the fan-based copying, translation, and circulation of Japanese cartoons, has been considered a key factor in popularizing Japanese animation in the west. Dojinshi, the fan-made and fan-sold cartoons that reuse characters from mainstream commercial manga, has proven to promote its underlying work and cultivate new artists for the professional manga industry. Both practices are technically illegal, but have been allowed due to their admitted benefits to the industry and, perhaps to a lesser degree, their ensconced position in our culture. Noda goes beyond other scholarly fan-related essays by arguing that the tacit agreement affording these fan-based activities is not enough, and that American fair use doctrine should be refined to acknowledge and protect the public benefits and incentives for authorship that fan-based activities provide. First he develops a formal definition for “fans” and uses it to form the two criteria for determining something as a “fan-based activity:” the activity complements the underlying work, but does not compete with it; secondly, a fan-based activity promotes the economic and creative incentives of the copyright holder whose work they are fans of. Noda then proposes that two changes be made in the traditional judicial interpretation of fair use to accommodate these innovative, arts/progress-promoting works. First, he posits that the first factor of fair use be refined so as to distinguish whether a work’s purpose is competitive or complementary. This, he suggests, would better align fair use analysis with the original aims of copyright law, and weaken the “commercial vs. noncommercial” distinction that never acknowledged that a commercial, complementary work (like these fan-based works) could actually, in some cases, benefit the author. Secondly, he offers that the fourth factor be applied to also evaluate a work’s benefit to the potential market of the underlying work. This is a much more nuanced, balanced evaluation of a work’s benefit to author and society than the traditional application of the fourth factor, which only looks for instances where a work could hurt an underlying work’s market.

Noda distinguishes himself from other fan culture scholars by urging that existing copyright law be revised to protect fan activities. He is also very specific, proposing criteria for deciding what constitutes fan activity and therein explaining why it is necessary to protect: it is innovative work that does not negatively affect underlying work. He then makes a compelling case for refining fair use evaluation, and is practical in suggesting how to implement it. Rather than attempting to force the change through legislative reform, an effort which would likely fail, Noda argues that the necessary change simply entails a refinement of interpretation at the judicial level. This is a departure from a number of other proposals, including suggestions that a dojinshi-like tacit agreement be attempted, or that publishers collaborate with fans to publish fan fiction anthologies. Because of its specificity and clarity, Jenkins's argument is the strongest one I have read for reforming and standardizing fan policy in entertainment businesses.

 

In this article Henry Jenkins discusses the series of events that gradually elevated Japanese animation to prominence in the Western market. He suggests that Japan's allowance of early fan piracy was able to promote international expansion of the cartoon business when its own publicity efforts could not. Early attempts to broadcast Japanese animated cartoons in the US were rebuffed by censor groups who considered them inappropriate, and Japanese cartoons largely disappeared from American television. When videotape recorders became available, however, it became common practice for Japanese and American animation fans to tape their favorite shows and exchange them, circumventing both copyright laws and the limits of television broadcasting. In the US, many of the Japanese tapes were exhibited at science fiction fairs around country, and fan clubs sprang up to collect and translate these foreign cartoons in a practice called “fansubbing.” As Japanese animation gained popularity, some fan groups actually won the rights to distribute Japanese cartoons in the US and began the first legal distribution companies. Eager to see more work imported, fans collectively agreed to stop circulating pirated shows that had been licensed, so as to avoid competing with the official legal cartoons and encourage growth of the foreign market. In addition to fansubbing, fan clubs worked to translate and explain the unfamiliar cultural elements of Japanese cartoons to American viewers. They also worked to identify Japanese cartoons that could be commercially successful in the US. This has resulted in the introduction of new animated genres in the western market, and massive global growth in the industry from 1994 to 2004.

A few ideas here are central to my research.  Jenkins remarks that the Japanese industry's tendency to not interfere with fan practices has largely encouraged its own international growth and innovation. The industry has followed a similar policy domestically, too, largely supporting fan-made cartoons (called “dojinshi”) and using them to promote official work. Moreover, this article emphasizes the commercial advantages of thoughtfully monitoring a trend before taking action for or against it, as the Japanese animation industry has done. The industry has pleased its consumer base and ultimately strengthened itself by exploiting a form of piracy that it could not completely control anyway. In Japan, apparently, new technology is not considered inimical to business, a philosophy that western entertainment businesses might do well to embrace.

 

 

Sean Jordan opens this blog with a common sentiment about fan fiction: that it is “lazy” and generally “bad.” He is not concerned here with evaluating the merits or shortcomings of fan fiction, however, but with the opportunities that the internet has created for the dissemination of fan fiction. Fan fiction is technically illegal, but is generally tolerated provided its creators do not claim copyright or attempt to sell their work. Here Jordan compares ordinary fan fiction to Japanese dojinshi, where such fan fiction is allowed and often taken quite seriously to create polished knock-offs of original manga. The problem with either type of fan fiction today is that the internet allows any fan author to show his work to anyone else in the world, giving them just as much power as an original author to promote his/her work. Fan fiction artists today could potentially distribute and sell fan fiction on a large scale while evading publisher scrutiny. Jordan muses on the potential legal steps that could be taken to prevent internet-enabled fan fiction from becoming such a massive infringement business. He envisions a system in which the publishers themselves print and distribute fan fiction, keeping the profits for themselves but granting the fan fiction writers exposure for their work. This would make a lucrative business out of a phenomenon that can hardly be prevented anyway: the demand for fan fiction is significant, he argues, no matter how bad it is. He concludes by pointing out the painfully obvious point that authors would likely object. If the authors could be persuaded to let fan fiction writers borrow and rewrite their intellectual property, then the system would work quite well.

This blog is significant in my research on fan-created derivative work for three reasons. First, it emphasizes the problem that modern technology poses by allowing anyone to show his/her work to anyone else in the world. Creative fan work may once have been tolerated because it was generally practiced at home and in small circles of fans; today, fan fiction is so widely available that it poses a more tangible “threat” to original authors and artists. Second, the article reflects an important popular sentiment regarding fan fiction, that it is lazy and generally quite “bad.” This stigma is likely to discourage original authors from allowing the commercialization of fan fiction, for fear of tarnishing their own reputation. Finally, the blog opines that a dojinshi-like system would likely not work in the west because authors prefer to have absolute creative control of their work than to see it emasculated by undiscerning fans, even if a good deal of money could come of it. This opinion opposes applied rationale of Japanese system, where the practice of dojinshi is now so entrenched that the manga industry accepts it and attempts to reap whatever benefits may rise from it.  In this sense, it contradicts (or at least complicates) my argument that Japanese fan policies could be successfully imported to the U.S..