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 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.