Tushnet, Rebecca. "Payment in Credit: Copyright Law and Subcultural Creativity." Law and Contemporary Problems. Duke Law.
According to Tushnet, fan creativity "concieves of the rights and responsibilities of authorship in ways distinct from standard models of creativity under copyright." Fan cultures create a communal experience around a work that the work itself cannot offer. She outlines the growth of fandom as it grew alongside of mass media to its eventual existence on the web, which has allowed for an explosion in content and accessibility. However, this visibility has copyright holders worried about the images of their characters in these fan cultures. Next she explains how fans justify their work as legitimate. Most believe, in some way or another, that what they are doing is fair use, and even those who believe it's illegal do not concern themselves too much because their work is considerably marginal. Tushnet goes on to explain why she believes fandom is fair use. Most importantly, fans are adding their own creativity to the original work and in that way making it partially theirs.
Fandom also has its own sort of "code" which it abides by in regards to copyright. Fans originally used disclaimers that spelled out the owner of the original and often asked not to sue, but this began to fade with the internet. However, attribution is still very important, but most fans believe the creator of the original will be obvious and they actually pay more attention attributing other fans whose work they use. In short, fans have their own set of rules and norms by which they abide when dealing with the problem of copyright. She relates these to the idea of moral rights; fans often know more about the characters than corporations that are in charge of authorized works and will point out the flaws. She returns to fair use and what courts tend to consider fair use and not, explaining the satire-parody distinction and examines the commercial value of hybrid forms like fan works.
What started as fan fiction has become its own culture, and really, its own online community. What this article describes is yet another way that copyright problems have been solved by the community that needs them. Fandom "treats authorship as a question of propriety, not property". It is not the same model that UbuWeb offers, where the site is simply acting as distributor of original works. Fan culture is a remix culture, again something CC was designed to make legal. However, fan works are complicated, as Tushnet alludes to in her discussion. Even though the characters are of course copyrighted, fans are creating a new and likely transformative use. However, there is often a lack of attribution, as part of the norms of this culture, since it is assumed that the audience will know who the original creator is. Instead, they are more focused on attributing each other, the "insiders" instead out the "outsiders". It is a flourishing culture online though, and another very successful way to circumvent copyright problems.
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.
Chapter 4 of Henry Jenkins's book deals with fan cultures, fans' newfound means of expression afforded by new technology, and the changing relationship between fan cultures and the “culture industries” to which they are inextricably connected. Although new iterations of technology always seem to alarm the entertainment industries with the degree of control they give fans over content, the difference today, Jenkins argues, is the degree of “visibility” that the internet has given to fan culture; with the internet, fans can show their home-made digital videos and fan fiction to anyone in the world. This trend of widely available fan appropriation of content has vexed the culture industries and driven them, Jenkins argues, to one of two responses: the “prohibitionist approach,” whereby the industry attempts to subjugate fan activity, or, less often, the “collaborative approach,” where industries attempt to actively include fans in the development and promotion of content. Jenkins examines George Lucas's Star Wars franchise as a heavily fan-dependent, cross-media cultural phenomenon whose mixed responses to fan activities reflect the confusion of the larger culture industry. Lucas first encouraged fan fiction, then tried to eradicate it, and then set up a website to contain it—with the stipulation that everything posted on it would become the property of Lucasarts. Lucas has likewise attempted to regulate fan films, sponsoring Star Wars fan film competitions but prohibiting works that proposed new, “non-canon” stories set in the Star Wars universe. Such mixed messages sent by mainstream content creators have confused fans, but have not—and ostensibly never will—successfully end their attempts to participate in the work that they love. Jenkins concludes by asserting that the interests of mass culture industries like Star Wars are identical to those of the fan base that supports them--fans want the franchises they support to succeed just as much as the men and women who created them do. He predicts that the franchises that recognize this mutuality will flourish, while those that stubbornly cling to copyright privileges and commit themselves to quelling fan creativity will decline.
Jenkins makes the unique argument that the “visibility” of today's fan culture is at stake, not its expression; fans will continue to privately engage with the works that they love, even if companies force them to do so “underground.” He warns, however, that such a prohibitive policy will ultimately harm culture industries which depend so heavily on the support of their fans. Jenkins's article is significant in my studies because it focuses on American fan culture; he does not refer to foreign fan phenomena like dojinshi, where Japanese cartoon companies abide the sale of infringing amateur manga and have accordingly grown in popularity and profit. However, the benefits of American fan activity that he itemizes are incredibly similar to those of the Japanese system: both have fostered artistic innovation, raised new professional artists, and promoted the underlying material. The great difference between the two is the widespread acceptance of dojinshi and the generally negative (or, at best, schizophrenic) corporate reaction to American fan activities. If western companies were to follow Jenkins's rationale and regard their fans as collaborators and creative participants, rather than mere consumers, Jenkins contends (and I agree in my paper) that a cooperative and successful industry akin to Japan's dojinshi system might appear.
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 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, 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.
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.
This is a somewhat informative essay, particularly if one is interested in the production and distribution of anime films, but the argument it makes is an exceptionally simple one (although it dons the clothes of profundity). Cubbison’s essay basically wants to say that form effects content, and that now consumers are allowed to dictate (to a certain, very limited extent) form. She also adds that the form consumers desire is based on an idea of authenticity, but this aspect of the essay is only explored through the relation of a few contrasting anecdotes and resulting in the conclusion: nobody is really certain what an authentic text is but there are lots of opinions about what it may be. To get back to form, content, and consumers, though, one must admit that her argument is not a very novel or complex one. Form and content have always been interrelated, and have always been seen to mutually affect one another. Cubbison’s argument that anime fans have some control over the form (or work) of the anime VHS or DVDs they buy is interesting, but as she herself admits, the debate over what form the work takes is moot at this point since DVDs are now able to provide dubbed and subtitled, original and edited versions of any given work (whereas before VHS had to make formal judgments that often upset fans). DVDs have rendered the debate amongst fans about the most authentic form an anime work can take irrelevant because they can now offer every potential “authentic text.” Anyway, this essay is an interesting look at the way that anime fans have been involved with the distribution of anime films historically, and how these debates have been waged over “authentic” anime texts, but as you will find if you read this essay the tensions and squabbles surrounding the distribution of anime films has been squelched by the capacity of DVDs to provide all possible “authentic texts.” So, for a historical glimpse of the debates about form amongst anime fans definitely read this article, but beyond this the essay is little more than a rehashing of a now dead debate.
"Written from an insider's perspective and providing vivid examples from fan artifacts, Textual Poachers offers an ethnographic account of the media fan community, its interpretive strategies, its social institutions and cultural practices, and its troubled relationship to the mass media and consumer capitalism."
This is the best source for fan culture theory. Very well written and easy to understand. Plus everyone cites it, you should too. The section I focused on dealt with the creation of meta-texts based on primary sources of fan interest in the media. This is just one of the many charachteristics of fandom Jenkins defines.
Article about Latino Morrissey fans in the context of an annual Smiths convention in Los Angeles. Klosterman is one of very few authors who directly addresses the issue of race; he writes that the "predictably pasty" Smiths fans of the past were replaced with Latino fans who treated it as a contemporary event, instead of a nostalgic festival of rememberance. He also addresses the issue of Morrissey's sexuality: Klosterman suggests that a religious, machismo culture chooses to ignore Morrissey's presumed homosexuality. The reaction of two Anglo fans at the convention is also mentioned, who accuse Morrissey's new fans of being "too enthusiastic" and express contempt for the Latino fans, a sentiment that is not expressed in any other articles.
(The book linked is the only source in print or internet the article is currently available)