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.

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~ by Gonzo Mehum on August 5, 2009.

46 Responses to “Geekscream: Fan Art and Fair Use”

  1. Congratulations, you just officially ground OFP into the ground and decimated it beyond recognition! Commendable, indeed!

  2. […] 2: Thoughtscream grinds this debate into […]

  3. 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.”

    Every post is a repost of a repost, or so they say.

  4. Probably the most level headed of the posts I’ve read in the last couple hours regarding this issue. Certainly nails the dubious legal side and the meta-argument of inability to compare different types of media.

    I would like to give the OFP the benefit of the doubt and hope that something was lost in translation. One particular item of interest that appears to be a cultural misunderstanding when they say, “We think that website is a place where the webmaster shows what he/she created.” Which; as was stated, is and isn’t the case with many anime blogs. I think the odd juxtaposition between the 1st and 3rd paragraphs becomes a little more clear if you translate the 3rd paragraph as “walk a mile in our shoes” as opposed to “make your own art”.

    I do feel that some of the posts in support of the OFP and maybe the OFP itself seem to bear a sort of entitlement over the bloggers. A little holier-than-thou attitude perhaps which Digitalboy nails the humanist side of the argument right on the head in that “…if you want respect, you can’t go disrespecting the people you expect it from.”

  5. Uh….

    Besides the fact that I think you got the copyright portion wrong, it’s a pretty okay analysis. I should say, by “wrong” I mean you ought to know while the transformative nature in of itself is the most important portion of the four fair use elements (to use American case law…presumably, that’s where most blogs are hosted, anime blogs or not), it is not the only one. There are case laws out there that decidedly rule transformative use of work as copyright infringment. You have to remember that derivative works of the original is still under copyright protection. There has to be something that is “fair” and not merely “they’re so different!” Indeed, Maoyi Snail Porn is decidedly different than anything SHAFT or Nisio Isin would come up with, but it is still a copyright infringing thing, for example.

    Second, copyright determination generally is a matter of law. While I agree that social norms are a factor in determining law and policy (a whole separate topic in of itself when we talk about the proliferation of doujinshi, and how that affects the landscape of copyright law here and abroad), it is still a legal determination that is governed by law and not so much a factual determination.

  6. @omo

    My response to that is that the 2003 Kelly v. Arriba Soft Corporation case already provides strong legal precedent in favor of bloggers. 1. images used by bloggers are rarely, if ever, of the same resolution as the original work, due to size and file constraints (and because it’s faster to load jpg than png), 2. the prior online publication of the work has already legally diminished it as a creative work, 3. while the fanart is otherwise copied in full, its intended use differs vastly from that of the fanartist’s, and 4. as in line with my analysis, the Court also believed that the online propagation of images only increases their value and market, making it a net-positive benefit in favor of the originator.

    There is, however, the continuing problem that fair use determinations are not at all static. The Arriba Soft case’s the most recent one I’m aware of – but I do know that image use online has been a perennial controversy. It doesn’t help at all that copyright laws in general favor conservative protectionism of intellectual property – a stance that is swiftly getting eroded given the near-impossibility of enforcement when everything gets moved online.

  7. This really is a very reasonable summary and response to both sides of the argument as a whole. I’m very impressed with your reasoning and the connections and relationships you put forth here. I thought the artists had a somewhat valid point at first, but the more I thought about it, the fanartists are acting like selfish divas and are going to hurt themselves in the end. I’ve seen something very similar happen in another online subculture. Nothing good came of it. What that subculture could have used is someone like you, who gave a valid, level-headed overview of the situation. Though it remains to be seen if this has a positive impact, I’m certainly hopeful.

  8. @Gonzo
    You can cite Arriba Soft, and your arguments…well, I’ll leave your readers to contemplate the elements for themselves. However your legal analysis in the post drops the ball bigtime compared to what you cited afterward as it omitted all that juicy stuff.

  9. @omo

    Well, as noted at the end, my initial legal analysis was deliberately vague. As a semi-professional journalist, I’d /like/ to think I have a fairly strong grasp of copyright and fair use laws, given how important it is to the industry, but without having the few hundred bucks needed to get the insight of a lawyer, I can only at best say “due to such and such reasoning, this is how I choose to interpret the issue.”

    Not to mention, in the end, the use of fanart really isn’t a legal issue, but a cultural one. WAH got that much right, at least.

  10. Wow this sure is written by a motherfucker who never drew anything in his fucking life. Why don’t you grow some creative bones asshole and start drawing yourself, then you’ll see how much work an effort goes into this stuff.

    Your awful anime blog is not helping these artists in anyway. You’re no different than any other entitled jackass who thinks you can just take something someone worked long and hard on. There’s no excuse for thievery. It just doesn’t effect you because you can’t fucking draw to save your life.

  11. @wah

    The first thing I’d like to note is, quite simply, ad hominem attacks, or attacks of character, are usually considered argumentative fallacies. They offer nothing to a debate, and are instead crude attempts to sidestep around the issues brought up by an opposition. Not to mention that they are presumptuous in nature, and are rarely truthful and valid even on their own measure. Myself, I’ve taken art classes some many years ago, but what meager talents I have tend towards the literary and culinary arts. I can draw decently enough… given, say, +5 hours more than it would take a more talented and experienced artist, and somebody else to do the photoshop tweaking (the latter more being a matter of my ancient-as-the-hills laptop not being able to run even CS2 without coughing, spluttering, and quite possibly dying).

    The second thing I’d note is that none of the arguments you’ve brought to bear – and, indeed, no real arguments’ve been brought up in the comment you made here – addresses the profound dissonance between the claim of theft, and the actual act thereof. There is no theft – there is merely attention brought forth. Furthermore, the argument that the OFP itself is an act of arrogance and a refusal to recognize the merit of multimedia platforms is, again, not addressed, nor even touched upon.

    In the rather artificial realm of competitive debate – and, in fact, often utilized in the realm of public opinion, much to the chagrin of reasonable minds – the concept of “silence is consent” is often utilized to shut down lines of argumentation that’ve been ignored, whether due to neglect or inability to respond. Often utilized, in fact, to claim a “win” in one form or another. Given that, as this paragraph implies, I do not believe in the validity of the “silence is consent” paradigm, I do encourage you to continue this discussion, and provide more insight into the reasoning behind the OFP.

    Provided, of course, you are willing and able to do so without debasing your position with further ad hominem attacks.

  12. Sorry, try again. I did ask for you to avoid ad hominem attacks. – Gonzo

  13. You didn’t make it.

    You’re using it on your blog.

    People don’t want you to use it.

    That is stealing.

    End of story.

  14. If the attacks continue, I should probably warn you I’m not adverse to outright bans. – Gonzo

  15. The ad hominem policy is, in fact, applicable to all commenters. I vastly prefer civil discourse over name-calling – call it a quirk of my competitive debate years. – Gonzo

  16. Also censorship on your blog isn’t cool.

    Are you a communist?

    I’ll let the communist comment ride. But what’s the use of a comment section if the blog owner doesn’t carefully moderate it? If the likes of Cory Doctorow and the BoingBoing gang does it, as do the rest of the largest blogs floating out there, I see no reason to take a passive approach to the cultivation of this blog’s general “voice.”

    Though that does probably mean I need a public comments policy page. Thanks for reminding me. – Gonzo

  17. Also, nice Sankaku RSS and Really Cute Asians RSS feeds you got there. You sure have lots of credibility!

  18. Really Cute Asians regularly steals cosplay from 3dbooru (which yes, rips cosplay off of elsewhere, yet they always reference the source) and panders to the lowest common denominator Japanophile. I sense a pattern.

  19. Hey, much better! We can go somewhere with this.

    The problem with your argument is, of course, the matter of general precedence. As touched upon in the blog entry, all works of media in all cultures have utilized the works of others, regardless of whether or not the originator wished it to be used. This is often the cause of suits involving works of satire or parody – and generally, the only times that the case is won in favor of the originator is when the originator themselves have a right to the intellectual property and can prove A. that the work was not found in the public domain, B. the work does not fall under protected speech, and C. that there is damage to the value to the original work.

    However, as I’ve gone to length on before, the propagation of fanart via blogs, and, indeed, the propagation of images online, is overwhelmingly seen by the courts of the world as applying positive value and gain – regardless of whether or not this was the intent of the media’s originator. The courts – and cultures – of the world also see the utilization of media in /multi/-media productions as valid and protected speech. And finally, in rebuttal to the first point, unless there is some explicit or implicit means of privatizing the work of media, whether it be a copyright or trademark logo, a signature on the work, a message asking viewers not to copypaste or directly link, or a /private/ password lock, it is considered to be public domain.

    Of course, there’s even the issue of whether or not theft is even possible with an online image. What is stolen? What scarce property has been coerced away from the artist? Where, in fact, is the reasoning behind the thought that displaying a copy of an online image somehow detracts from the time spent and emotional effort exerted upon a piece?

    But then again, the underlying point to this altogether far too verbose reply has been made in the blog entry. Might I suggest rereading it? It’s long, but I think I made some decently valid points – especially regarding the matter of theft and/or lack thereof.

    And finally, like all bloggers and fanartists, I’m a bit of an attention whore. SanCom and RCA has feed exchange programs and a sufficiently large audiences that I can expect some spillover – I make no apologies for seeking (and apparently gaining) an audience. Though thank you for reminding me that I really need to put up that blogroll page soon…

  20. u mad

  21. Using “theft” to describe saving an image off the internet then posting it elsewhere is misuse of the English language. Theft solely describes physical property.

    I can steal an iPod, I can’t steal an mp3. It’s copyright infringement, and that only assumes you have a claim to it.

    Is saving a screenshot of an anime theft?
    Is drawing a near-replica of that screenshot theft?
    Is drawing a mostly-different picture based on the anime theft?
    What if you took those pictures, and put them on a website?

    None of these are thievery, by any definition. If bloggers putting an image on their blog made by a fan artist is stealing, then the fan artist them self who made the original image is also “stealing” from the original work they based their drawing on.

    As an aside,
    “Furthermore, the argument that the OFP itself is an act of arrogance and a refusal to recognize the merit of multimedia platforms is, again, not addressed, nor even touched upon.”

    Pretty sure he touched upon it.
    “Wow this sure is written by a motherfucker who never drew anything in his fucking life.”

    It seems he’s agreeing with you by giving you an actual example.

  22. I don’t see how much more simple I can get beyond “it’s rude to shamelessly use something you didn’t make”

    I don’t care about all that other stuff you’re going on about. A guy in Japan doesn’t what you to use that Miku image as your header. Don’t use it. It’s mean.

  23. Well, to be fair, it counts as theft under the ruleset proposed by the RIAA and MPAA.

    But my view on the two largest media gatekeepers in the States is Decidedly Public.

    And rather Unfriendly.

    Hell, I still have this even /longer/ blogpost in the works on them…

  24. @wah

    Actually, to be fair, I was planning to replace the Supercell banner some time this year – prior posts mention attempts at creating a blog mascot (you know, just because it’s kinda cool to have one), though that got momentarily set on the backburner due to my freelance writing obligations and summer school. I’ve got a few possible artists I can commission a final draft from, thankfully.

  25. I like how won’t admit how it’s wrong to take another person’s work and use it without permission/not credit them at all.

  26. Well, again, because it’s not. And the entire second half of the argument made in my blog entry is exactly about why multimedia works has just as much right as singular-media works to utilize materials unsourced.

    It isn’t a matter of east or west culture. Or even really about entitlement. It’s basically a matter of perception of effort. And I continue to assert that the perception you are endorsing is inherently flawed.

  27. It’s flawed to think that using something someone toiled over for days without their permission or even a credit is bad?

    Ok dude hope you enjoy pissing off all of the Japanese fanbase, which happens to be what your fandom is founded on GG GJ thanks for all the fish see you in hell game over

  28. Translation: I am still horribly attempting to justify why I steal the works of Japanese artists with irrelevant tangents.

  29. So the current argument boils down to “Don’t be mean”?

    Everyone shamelessly uses things they didn’t make all the time. The difference is whether you let on, or explicitly claim that you were the creator when it’s a lie. I’m sure Gonzo’s never claimed he drew the Miku header.

    Using fanart without permission isn’t “against the rules”. You might claim it’s a dick move, or “It’s mean”, but that doesn’t mean people care. Vast majority of internet users, bloggers included, could not be fucked learning moon runes or obtaining a translator, so that they can ask for permission to use a drawing someone else made.

    Take a quick look at almost any anime community forum, and you’ll see thousands upon thousands of avatars, signatures, profile page designs, etc. based on fanart that they didn’t draw. It’s completely ubiquitous. No amount of humming and hawing will change the fact that once it’s on the internet and it spreads around, it’ll be everywhere. Blogs, community sites, image boards, *boorus, the list goes on.

    Asking for permission to use the art, or tracking down the source artist and accrediting them, are both acts of courtesy. I’d honestly never bother doing the former, and probably be too lazy to bother with the latter under most circumstances. Everyone else probably feels the same way, which is the reason hardly anyone’s agreed to the OFP.

    This is the internet – you can’t stop the memetic mashup, no matter how angry you get about it.

  30. “Because everyone does it, that means it’s ok” huh?

    nice convincing argument there buddy. hope you enjoy living in king shit of the world america where you can do anything you want and be as rude as you want to other cultures because they won’t do anything about it.

  31. Well, while the straw man fallacy is very popular indeed in political circles, it is still very much a fallacy. It was never my intent, nor the substance of the post, to suggest that artists don’t have a right to their work – rather, that barring explicit or implicit action to safeguard their ownership, it may very well be considered, and usually is considered, public domain and fair use.

    And, I note, the practices mentioned by Chris (who’s a dirty Canuck, idly) is just as prevalent in Japanese fan communities as it is in Western sites. Really, the OFP only has as much weigh as it has signatories – and I note a decided public lack thereof.

    Not to mention that, again, the validity of a multimedia platform, which is rather central to the debate, is being ignored. Let’s put it this way: I am very much in favor of the underground doujinshi remix music culture, and their American (and Aussie and Kiwi and Brit) equivalents. The same argument as to why musicians ought to be able to sample widely and reinterpret even entire songs applies to illustrations and writing too – the main difference is that in the case of blog posts, it’s a fully multimedia act of communication – or even, perhaps, given the role of text, meta-communication as well.

    Barring a direct note from the artist, my priorities are in line with any other communicator of any form of media in any first-world culture – the conceptual intent of the product takes first and foremost consideration. It is, after all, the same priority that fanartists themselves utilize.

  32. At any rate, the purpose of a discussion is rarely to directly, or even actually, convert anybody to your way of thinking. We’re both advocates, not judges, in this issue, at least for as long as this discussion is held. I think both sides’ve pretty much said all they really can say on this subject matter, so, at least on my part, I’m on a moratorium on this subject. Thanks for the debate, WAH.

  33. Thanks for hating japan dude

  34. It seems to me the people in support of the OFP feel this is a moral debate and the people who aren’t feel it’s a more legal debate. Well maybe not necessarily a solely legal debate, but not a debate in which the legality can be divorced from it quite so easily as the fanartists would like or have tried.

    I don’t feel that, with the responses to this issue, their is absolutely zero moral controversy. The stances seem clear and a few bloggers are even changing their tune. Upholding that they will try to track down sources, and asking the artists to make it easier by signing their work. While others say this process is too time consuming, may have a language or cultural barrier, and with regard to the fanarts widespread use and the nature of the internet, just not realistic.

    I see that as moral controversy. Something in which both sides could delve deeper into if they wanted to take the time and if a fanartist with a more level headed explanation to their feelings stepped forward.

    So far (and it could just be bias from the fiery posts) I have an image in my head of the debate up till now:

    On one side of a street there is a noisy dustcloud of anger and accusations. While on the other side we have people who either make sense out of the cacaphonous anger or try to make sense of it. Maybe I should draw a picture of it. We really haven’t heard anything from the artists side.

    I feel like a lesson in Dialectical Behavior Therapy might be in order.
    http://www.learningconnections.org/going_home/docs/dear_man_0908.pdf

  35. And it seems I too long to type this up as I was still on “because everyone does it that means it’s okay” post

  36. Maybe this was already covered, but methought that part of the idea of fanart (and posting to the web) was that the art was intended to be seen by as wide an audience as the Web would allow. It seems to me that by posting, there’s some sort of permission given to take the image and use it, remix it, or pass it along to other people who might be interested in it.

    That may not be legal permission upholdable in any court of law, for I am not a lawyer, but the things that someone wants to keep hidden should probably not be posted to a public forum where others can see it.

    If that angle’s already been covered, then I’m just noise and can be deleted freely. But I don’t think anyone’s really explored the idea that posting something and then saying “don’t distribute” creates a dissonance. Kind of like how the AP was saying “don’t excerpt us, link to us”, actually.

  37. So, if I understand this correctly, wah’s side is arguing that if you copy a picture and put it online, that’s theft. Gonzo and his crew are arguing essentially that if you don’t want it public, don’t put it online.

    Having read quite a few implicating emails in my day, I’m going to have to go with Gonzo.

    Also, randomly, doesn’t parody law cover this, at least in the United States?

  38. Well, then we get into a debate about what actually constitutes parody, and whether or not it applies to carbon copies… …though, at that point, I again assert that sufficient multimedia recontextualization ought to count.

  39. @Gonzo
    If you’re not a lawyer, please don’t state your notion of law with authority. At the very least you need to cite them or paraphrase or copy-paste your statements from somewhere.

    Let’s just say that if you were a lawyer you’d at least be trained enough to do one of the following:
    1) not get it so wrong, that anyone who actually studies copyright law would see the glaring error,
    2) put a DISCLAIMER saying this is just your off-the-cuff opinion, or
    3) ask someone who is a lawyer.

  40. @omo

    “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.”

    Taken, in fact, from the blog article itself.

  41. The tl;dr translation: don’t look at me for legal advice, but I’m fairly confident about my position.

  42. Hmmmm…I go on vacation and come back to see massive image controversy.

    Still, I am amused by this “don’t use Japanese fan art” mantra when in fact there are lots of Japanese sites that are filled with — Japanese fan art and American fan art. While I don’t collect fan art (preferring official stuff instead), shouldn’t those Japanese sites and blogs (who do not credit the artists) be dealt with first, assuming this is as big a problem as claimed? After all, isn’t that where a few Western fans initially acquire the Japanese fan work to spread it to the West?

    I was also amused that this was such a huge controversy because I didn’t realize how much Japanese fan art there was on Western blogs and sites. Then someone reminded me of the overwhelming amounts of porn fan art out of Japan (doujinshi) as well as manga porn and different artists collections of drawn porn. *_* For some reason, I couldn’t help but wonder if this aspect is what is at the root of all the controversy (which feels pretty artificial).

  43. […] Likewise, can relate to the arguments offered that it’s not always easy to track back the creator of an artwork and that the artist who created fanart does not hold any legal copyright to the original characters or work it may be based on (which along with fair use can be somewhat of a grey area as Thoughtscream wrote). […]

  44. “[…]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.[…]”

    Many Japanese artists desperately need to control the amount of attention they get. The “gray area” of the doujinshi world only works as long as you keep your head down. Get too much attention, and you may get your nose snipped off, so to speak.

    It’s true that some Japanese doujinshi circles become madly popular, or even turn a profit. But there’s a risk there. You could be the next pro artist culled from the masses, or you could get your website shut down. As long as doujinshi stay in print form, the number of copies can be controlled by the artist, but as soon as they’re scanned…

    It should always be the artist’s choice whether they want to take that risk. :)

  45. What’s interesting about this argument about the OFP is, one of my favorite artists, NewMen (New Erotic Works Solution alias NEWS) has appointed himself and his co-workers to be part of the OFP union base for quite some time. Only recently via hentairules.net was it discovered that THAT specific work was given to a translator so people can read his recent work, Etc.- a compilation of his new works since his duology- Secret Plot and Secret Plot Deep, published by Eros Studios. The latest work was given praised after ETc. was a colored book by
    the name of Class Officer 2, another coloring book. However, this
    version is only available to those who plan to purchase it in
    Japan and nowhere else.

    Case in point: seemingly that with the union on the notice of
    people trying to claim properties of other people’s artwork,
    publishers are limiting ways in which only their own country can
    purchase the artists’ work in their area and nowhere else. In this
    example, NewMen as well as other artists are trying to keep their
    works intact while deciding the proper time when to publish them,
    whether by their own studios or with someone they hire legally,
    and they can all be put to risk once they have their stuff printed
    out either way.

    Hentairules.net is just one of the millions that scan many mangas,
    both from translated groups, european books, AND even some totally
    untranslated. Yet, they’re still around because people request
    artists from almost anywhere you can think of: Distance, Tony Taka, etc.. the list goes on. Are those artists aware that other
    people are seeing their works while they continue to create such
    illustrious mangas out in the open, even without permission at
    some times?

    This is the ironic part when you have a union such
    as the OFP standing out in one side of the table, while you
    have other people just daring to find mangas, scan them for other
    people or sites to show them on, and not be caught by lawyers
    who are just hungry to sue them for legal damages and how. The
    only thing that’s not stopping those that continue to distribute,
    translate, and even those that purchase the manga to have them
    scanned is of the fact that the copyright lawyers aren’t sending
    spies or anyone just keeping an eye on those who scan books and
    send them to sites so everyone else can see them for free.

    For those who are interested in the HP of new men, here’s the site…http://www.k2.dion.ne.jp/~nhp/

    Included is the website of the OFP, which, to me, isn’t very
    clear on what they mean. But, seemingly that it exists, it’s
    making the view of almost every new manga out there not as
    guaranteed to be seen to the Western world.

    Seriously, would anyone want to spend 6800 yen for a 300 page book
    seeing hot manga chics in bikinis? You know what that translates
    to me? 2 1/2 volumes of Masamune Shirow’s Appleseed, which I can
    read it for free since I bought the entire series…

    ..TO BE CONTINUED…

  46. Whats up this is somewhat of off topic but I was wanting to know if blogs use WYSIWYG editors
    or if you have to manually code with HTML. I’m starting a blog soon but have no coding know-how so I wanted to get guidance from someone with experience. Any help would be greatly appreciated!

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