WHEN HOLDING ON MEANS LETTING GO: WHY FAIR USE SHOULD EXTEND TO FAN-BASED ACTIVITIES Nathaniel T. Noda†
In a celebrated children’s song, Malvina Reynolds observes that love is “just like a magic penny, / hold it tight and you won’t have any. / Lend it, spend it, and you’ll have so many / They’ll roll all over the floor.”1 Just as love sometimes means letting go, the doctrine of fair use recognizes that the purposes of copyright are sometimes better served by allowing certain forms of infringing activity to occur. The four-factor test for fair use, codified at 17 U.S.C. § 107, affords courts sufficient latitude to fine tune the analysis in light of changing circumstances. The recent surge of interest in anime and manga, or Japanese animation and comics,2 brings with it distinctive examples of what may be dubbed “fan-based activities,” which indicate how courts can adapt the fair use analysis to best balance the public’s access to creative works with the interests of copyright holders. The joint popularity of anime and manga is no coincidence: the origin and evolution of manga is entwined with the origin and evolution of anime, representing a symbiosis between the
† Mr. Noda is a J.D. Candidate 2009, William S. Richardson School of Law, University of Hawai`i at Manoa. This paper arose within the context of the WSRSL Second-Year Seminar. The author would like to thank Professor Charles D. Booth for his invaluable advice and guidance. 1 Charles H. Smith & Nancy Schimmel, Magic Penny, by Malvina Reynolds, available at http://www.wku.edu/~smithch/MALVINA/mr101.htm. 2 See, e.g., Paul West, Japanese Anime Imports Invade America, THE DAILY OF THE U. OF WASH., Jan. 16, 2003, http://thedaily.washington.edu/2003/1/16/japanese-anime-imports-invade-america/ (commenting that anime’s “worldwide popularity ranks alongside--and likely surpasses--Disney animation”); Masami Toku, Shojo Manga: Girl Power!, CHICO STATEMENTS, Spring 2006, http://www.csuchico.edu/pub/cs/spring_06/feature_03.html (observing that “[a]t the beginning of the 21st century, the popularity of Japanese manga has spread all over the world”).
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industries that persists to this day.3 It is this symbiosis that nurtures and maintains groups of dedicated, cross-media, multinational fans, many of whom engage in two potentially copyrightinfringing activities, which, despite their propensity for inflicting creative and economic injury, the respective industries tolerate, and, at times, even embrace. One of those activities, the creation and sale of fan-made comics, or doujinshi,4 represents a form of fan activity that paradoxically infringes upon the rights of the copyright holder, yet garners active support and participation from the anime and manga industries.5 The other, the production and distribution of anime episodes subtitled by fans, or fansubs,6 represents a form of fan activity that exploits what some characterize as a “grey area” of copyright law: the sharing of anime episodes not yet commercially licensed in the United States.7 3
The 1963 anime series Astro Boy (Tetsuwan Atomu or “Mighty Atom” in Japanese), considered by many to be the first example of the anime aesthetic, was itself adapted from a 1951 manga series under the same name. This practice of adaptation from manga to anime continues to this day (e.g., the manga series Lucky Star, which saw adaptation into a 2007 anime series after garnering a fervent fan following), and occasionally functions in reverse (e.g., Neon Genesis Evangelion, a landmark 1995 anime series that gave rise to an ongoing manga adaptation by the series’ character designer, Yoshiyuki Sadamoto). See e.g.,https://exc2.law.du.edu/exchweb/bin/redir.asp?URL=http://www.sonic.net/~anomaly/japan/manga/matom.htm. 4 “Doujinshi” are fan-made comics, commonly deriving characters and milieus from manga, anime, or video game sources, which are sold by...
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