When Holding on Means Letting Go: Why Fair Use Should Extend to Fan-Based Activities
WHEN HOLDING ON MEANS LETTING GO: WHY FAIR USE SHOULD EXTEND TO FAN-BASED ACTIVITIES
Nathaniel T. Noda†
INTRODUCTION
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,
Nathaniel T. Noda†
INTRODUCTION
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,