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.
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.
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.
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.