Geekscream: Fan Art and Fair Use

21stcenturydigitalboy‘s tossed in his two cents about the Online Fanart Protection manifesto, as has WildArmsHeero of Mistakes of Youth fame. Of the two, it’s actually 21CDB that gets it right – there is no actual legal nor moral controversy towards the use of fanart for blogging purposes, except that both bloggers and fanartists are both in technical copyright violation.

And that’s a very minor technical indeed. So minor, it can be said not to exist, especially in the form utilized by fanartists and bloggers alike.

Legal issue first, since it’s the easiest to knock down: the concept of Fair Use as a means around copyright is damn near universal amongst first-world nations – and given the Japanese doujinshi culture and the decided lack of legislation against Comiket and its numerous clones, it is arguably strongest in Japan. What Fair Use boils down to is simple: if it meets the local culture’s concept of “transformative” work, there is no need to seek the originator’s permission to utilize.

Notably, this doesn’t restrict the use of images to only noncommercial works. The point is, if the usage of the image sufficiently distorts the context in which it is interpreted, it can be reutilized however the second party wishes.

Of course, proving that there has been sufficient contextual transformation can, itself, be a bit of a bitch. It is generally safer to make a blatant parody or satire than to do anything fancy – and in the case of blogs, there is usually a lack of alteration to the picture, making the transformation defense less overtly intuitive.

However, it is only nonintuitive in that blogging is a multimedia platform, and the discussion of fanart is centered upon a singular medium. While there is no alteration to the picture itself, there is, ideally, plenty of obvious recontextualization – namely, in the context of the blog itself, and how it utilizes the fanart to illustrate its points. This naturally differs from blog to blog – though I risk hubris in saying so, I’d like to believe that, excepting the obvious and blatant rips (as with the Saya no Uta review), most of my own uses of visual media are a successful, if occasionally crude, melding of image with narrative. The Deconstruction series, in particular, used images in that specific regard – the idea that one form of media cannot be reinterpreted with the context of another is, frankly, outright absurd, and something all artists should be willing to reject out of hand, given how much of art, regardless whether or not it’s multimedia or single-medium, took inspiration, sometimes blatant and obvious, from something else out amongst the human noosphere.

And to put a final lid on the legal issue, a rip-off of a rip-off is less legally questionable than the originating rip-off itself.

Of course, all the above was just a precautionary analysis, and a way to set a more objective foundation to the debate (though, admittedly, in line with my previous rant on copyright laws, Fair Use is of such nebulous, ad hoc grounds that calling it truly “objective” is asking for a whole can of worms). From what I can see of the Online Fanart Protection manifesto, it doesn’t really threaten legal action against blogs that utilize fanart without prior notification to the artist. Actually, to be frank, I’m not completely sure what they’re asking for, given the cognitive dissonance between what they’re demanding, and what’s actually at stake. But that requires a more philosophical – and even moralistic – analysis of the whole debacle.

A convenient segue, that.

There are two primary components to the rather short Online Fanarts Protection manifesto: that of the accusation of theft on part of the bloggers, and that of a call for more creativity on part of the bloggers – basically, for them to produce their own fanart, so s to avoid the whole “problem” in the first place. Both aspects of the manifesto are intrinsically flawed, the reason of such overlaps with the legal issues I’ve discussed above.

The first part, as mentioned earlier, is that the definition of theft leaves something to be desired. There is nothing actually stolen – normally, bloggers and blog readers fully recognize that the art displayed on the posts in question were not, in fact, drawn or rendered by the writer, but merely discovered through whatever means of image searching. While there have been attempts at actual theft – in this case, defined as the claiming of ownership and origination of the art in question – that is most often done between graphic artists, and not by writers.

In fact, the core of the problem with the idea of fanart theft is that it assumes a classical scarce-resource economic context. That the use of fanart in blog posts somehow demeans the original art, and the effort made to create it. But this is, frankly, bullshit – online media, much to the chagrin of news corporations, music companies and even bookstores, don’t function under scarce resource principals, but under the still mostly theoretical algamic economy – as effectively infinite copies of any one media can be made, barring server and bandwidth restrictions, theft of online media, defined as the unlawful and coerced transaction of finite property ownership, is outright impossible.

In fact, rather than diluting the value of the original art, the use of fanart in blog posts more often than not brings more attention, if initially indirect, to the artist than he or she would’ve gotten under ordinary, classical economy means. Like blog posts, the attention brought necessitates a high enough quality to be worth the attention in the first place, of course, but the fact of the matter is that even the likes of Supercell (whose Love is War art adorns the top of this blog), or Minami (of Chibi Miku-san comics fame), would not be nearly as well known today if it wasn’t, in part, due to the rampant imagesharing culture that now defines the online otaku subculture community. All it takes is one good piece to get people starting to ask for your name, just so they can get more.

So there is no theft going on. Rather, good fanart only increases in value for the artist as more and more attention is cast upon it, and a greater demand for the artist’s style and output grows. But what about the second part of the manifesto – the call for more creativity from the bloggers that use the art?

Fair enough. Thomas Keller, the World’s Greatest Chef, and the only American cook that the French wants to claim for their own, famously said that “there is very little creativity – in anything.” Certainly, even most of what I write are downright rehashes of popular thought – though I’d like to think I write well, I’ll be damned if I get accused for being creative. All of us bloggers are reviewers at best, pundits at worst – we rely on the shoulders of giants and midgets alike for our output. There is some creativity in blogging – the incorporation and synergy of previously overlooked relations, trends and patterns can elicit some truly fascinating insight – but, for the most part, it’s much of the same old same old, in varying levels of detail and articulation.

Of course, the same thing can be claimed of fanartists too, can’t it?

This is my problem with the OFP: every damn thing about it is elitist and wrongheaded in nature. It takes an inherently high-handed stance on the graphics versus text debate on “what is art,” implying strongly that if it isn’t visual, as opposed to conceptual, symbology, it not only isn’t art, it isn’t creative. Even if this wasn’t the intent of the OFP’s writer, this is ultimately the root of the manifesto’s ideology. It is effectively a declaration of superiority of visual artists over bloggers – when, in fact, art is merely a categorization of expression, and the comparison of differentiating media is only as meaningful as declaring that both apples and oranges are seed-bearing fruit.

Quite in contrary to WildArmsHeero’s stance on Twitter that the rejection of the OFP from American otaku bloggers is a sign that we arrogant Americans can’t conceptualize Japanese humility, my analysis of the OFP holds it as nothing but a veiled act of arrogance on their part – not upon nationalistic or racial lines, but amongst the Japanese fanart culture as a whole, or at least of those in support of the OFP. Quite in contrary to WAH’s derogatory call for the “children” of the western fandom to give more respect to the community at large, my interpretation leads me to believe that this manifesto is, in fact, an effort to divide the community – to instate an artificial caste system, where only those that produce visual art are worthy of respect, and have monopoly on the direction and usage of the common icons and symbols of our subculture.

The meta-creation of a well-written blog post can be just as meaningfully “art” as that of anything created by the best fan artist, just as we hold the works of Renault to the same general level of esteem as Bach and Dostoevsky – and the comparisons between them just as meaningless. On the converse, just as most written and visual works today are the easily forgotten and discarded trash of the trendy and shallow, so are most fanarts and blog posts null-value statements.

If the intent of the fanartist is, in fact, to turn null-value into positive-value – as far as I’m concerned, the only intent that makes sense in the online paradigm – then I suggest that they look back to their predecessors. The use of an artistic signature or stamp to greater increase an artist’s exposure and infamy has been a time-honored practice in all major civilizations and cultures, from the artists of the Renaissance and Romantic period to the swordsmiths of Japan. And it has value even today, when all other forms of communication are suffering upheavals at the very core of their purpose. It, and a timestamp, prevents the true theft of their works – that of the origination-claim by another party – and makes it much easier for new fans of their works to track them down.

As a concluding note, two things: my analysis of the legal reality of fanart is vague for a very good reason: I’m no bloody lawyer. Take it all with a grain of salt – though given that my research for the above was with aid of the ever-reliable Electronic Frontier Foundation, I’d be shocked if anything of substance was actually wrong in any significant manner.

Also, this post is image-free in protest. That, and it’s late, and I’m really lazy at 2:30 AM. Enjoyed the TL;DR? Muahahahahaha.

~ by Gonzo Mehum on August 5, 2009.