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i can see the lawsuit now where the 15 year old kid is sued because he drew a Naruto picture and sold it for $5

don't forget all the cease and disist letters that are going to go out to all the fan art sites

and watch out cosplay you're next. Sorry sir you're getting sued becasue of that horrible costume of Naruto you made. Shocked

Colonel Wolfe wrote:

Otakon is taking it upon themselves to police their own events at their own discretion. If I create a piece of FanArt, I have the right to sell it, it's a right of Fair Use and since they are not mass produced, no license is needed to sell it.

Sadly, fair use is not a right. Fair use is usually seen as an affirmative defense to copyright infringement, an interpretation which I actually disagree with to some extent. It's not a right, however- fair use is simply an exemption that allows use of copyrighted materials that is not copyright infrigement.

You do not necessarily have the right to sell it. Looking at fan art, there are several potential infringments that you'd need to look at to see if your actions are a fair use. For example:

-The creation of a derivative work.
-The display of the derivative work.
-The sale of the derivative work.

Each of those actions is potentially infringing. Luckily, fan communities are such a big part of the anime and manga industry that the copyright holders have not to this point acted against them, with a few exceptions. So it hasn't been a big issue, and I hope it continues to not be a big issue.

hikaru004 wrote:

LaLuna.RuniGustav wrote:

you can't forget Newtype, Animerica and several other respectable AMERICAN Magazines that all want your "FANART" for their books. MMmm fishie........ yeah.........

Someone else needs to confirm this...

Since you mentioned Newtype USA, I really haven't seen a fan art section in that magazine for a while. It looks like it got replaced by the "How to Art" section in which a featured artist explains his technique. In the Feb. issue of Newtype USA, it is Hoden Eizo.

That could be just because the artwork is normally bad and obivoiously copied. - LOL just kidding

But personally I think a How to Art is a better use of space.

prime_pm wrote:

Real fans do not need to sell the work of others, or drawn copies thereof, for money. They are fans because they respect the original author's work. But sometimes, there are lesser men that forget.

I don't think that your analogy of "well, I don't sell my fanvids!" is a particularly good one. A fan vid is a composit of two or more existing source materials -- animation, music, etc. While the editing and effects are your creations, most (or all) of the actual content is directly mined from existing material created by a third party.

However, fanart -- doujinshi, stickers, pinups, dolls, whatever -- use the existing material as inspiration for a new creation. If I write and draw an 18 page doujin that features characters from Rurouni Kenshin, I've essentially used the Kenshin story as a jumping off point -- all of the labor in physically creating the thing is my own. The art is mine, the dialogue is mine, the time taken to make the actual book is mine. I understand that the character designs and concepts are, of course, borrowed from another source, but I don't think that the doujin therefore ammounts to "copying."

A LOT of work goes into fanart, and derivative work is a valid form of expression. Being inspired by someone else's work doesn't make the artist a "lesser man."

Last edited by hikaru004 on Mon Jan 30, 2006 12:10 pm; edited 1 time in total

cjovalle wrote:

Colonel Wolfe wrote:

Otakon is taking it upon themselves to police their own events at their own discretion. If I create a piece of FanArt, I have the right to sell it, it's a right of Fair Use and since they are not mass produced, no license is needed to sell it.

Sadly, fair use is not a right. Fair use is usually seen as an affirmative defense to copyright infringement, an interpretation which I actually disagree with to some extent. It's not a right, however- fair use is simply an exemption that allows use of copyrighted materials that is not copyright infrigement.

You do not necessarily have the right to sell it. Looking at fan art, there are several potential infringments that you'd need to look at to see if your actions are a fair use. For example:

-The creation of a derivative work.
-The display of the derivative work.
-The sale of the derivative work.

Each of those actions is potentially infringing. Luckily, fan communities are such a big part of the anime and manga industry that the copyright holders have not to this point acted against them, with a few exceptions. So it hasn't been a big issue, and I hope it continues to not be a big issue.

It's sad that "fair use" is being used to defend potential illegal activities. Fanart isn't act of parody, isn't used for educational/informational purposes and you're attempting to make a profit out of it. I really doubt that fanart constitutes "fair use".

Fanart is just like amvs. That wasn't an issue until amv.org got a Cease and Desist. If Otakon wanted to be pro-active, the amv policy should reflect what happened at amv.org if it hasn't already. Could you image all the negative publicity if Otakon gets a Cease and Desist?

Question

I was wondering when does the federal side of this kick in. We've only been talking about civil consequences so far. Copyright infringement is a federal law violation. So say you get our out of court settlement, can the feds still come after you?

Last edited by kimonostereo on Mon Jan 30, 2006 12:08 pm; edited 1 time in total

While this is still up in the air and there hasn't been a firm decision on this yet, I still wonder out loud whats really going on here.

When I went to the San Diego comic con all those years ago and stood in line to pay for a drawing by american comic artists like Frank Miller or John Byrne, I got to choose what character they drew for me and kindly handed over between 30 - 100 bucks. I highly doubt these people are license holders for characters like wolverine, dardevil, batman or any other marvel or DC character. What the heck would they have drawn for me? Don't regular comic artist still draw unlicensed characters at these conventions or are they all drawing characters they created and none of those DC/Marvel charas?

I understand who the copyright holder is, but seriously, when I go to see these artist I want them to draw a character I love from a series they've done in the past. Seriously, would I rather have a picture of a character i've never seen before or Batman drawn by Mr. Miller? Hmmmm.

KogeDonbo the manga artist behind Pita-Ten, DigiCharat etc draws a Harry Potter doujinshi and sells it as well. Clamp got their start as doujinshi artists as well as a ton of other artists.

I guess when you go to OtaKon, all you'll see is artwork from the adventures of CamelToe Girl and SpongeEater (I made that up).

Just my .02.

hikaru004 wrote:

This sounds like a variation of the legitimacy of fansub arguement that I see so often here. Unfortunately, it really doesn't matter if the person makes $2 or $2 million dollars doing fanart/doujinshi. If the law states the activity is illegal, there should be no complaints otherwise and the activity should cease at public events. Just because an activity was tolerated in the past does not make it legal. It just means that said activity will eventually stop occuring if someone/some organization makes an issue of it.

See, this is all good and logical (though fanart is not the same case as fansubs since the latter deal with the product itself rather than art inspired by it), but the problem is, fandom doesn't operate this way. There are gray areas like fanart, fanfic, amvs, etc which are all technically illegal but companies (mostly) turn a blind eye on them because while they're illegal, they don't technically do harm to them.

Again, I have to point at what Japanese companies and artists are doing with doujinshi. Yes, doujinshi are practically illegal, and the companies have every right to crack down on them. It's totally within every copyright holder's rights to ban selling doujinshi based on their products, and it'd be easy to declare Comiket and other mostly doujinshi-related events illegal and forbid selling doujinshi in stores and online. But what good would that do? Nothing. It would only alienate and antagonize fans and pretty much annihilate many fandoms.

Fanartists don't draw fanart for a living. They mean no wrong to the copyright holders and neather do those who buy the art. As long as fanart is not declared official or artists don't try to pass traced-and-copied official art as fanart I don't see the reason in trying to smash fanartists with the mighty fist of law, simply because "omg selling fanart is illegal and we take law seriously!!1" What good would that do the copyright holders? It wouldn't make people buy more official products, it wouldn't make them more interested in official merchandise, etc. Yes, selling fanart is technically illegal. Still, it's an important element of fandom. I think this is one case when it'd be much wiser to be understanding and generous and just turn a blind eye instad of antagonizing the very same fans they're trying to cater to with the event.

hikaru004 wrote:

Besides, if a person comes to the event with only so much money, spending it on fanart is taking away from a sale of an officially licensed product.

Now that's just nitpicking.

Last edited by redbeangirl on Mon Jan 30, 2006 12:56 pm; edited 1 time in total

hikaru004 wrote:

Fanart is just like amvs.

See my above post -- it really, REALLY isn't just like AMVs at all.

AMVs are created using the intellectual property of one or more sources -- as in, actual animated sequences, tracks of music, etc. I think that AMVs are an interesting and worthwhile way for fans to express their love of a series, but no matter how talented an editor they are they're still "remixing" material lifted from CDs, DVDs, etc.

Fanart is when an existing work is used as inspiration for a new creation -- unless an artist is actually copying an existing piece of artwork (which I don't condone any more than you do) they're using their talent and their imagination to draw/write/build a NEW THING based on existing concepts. A derivative thing, of course, but unique.

Keep in mind that the concepts of "copyright" and "trademarks" and "intellectual property" are very recent inventions, meant to encourage creativity and allow artists and writers and such to make a living off of their work.

Derivative work is a time-honored tradition -- creations that range from "Wicked" to "Rosencrantz and Gildenstern are Dead" to "Sandman" to "The Wind Done Gone" to....well, really the collected works of Shakespeare were inspired by existing works.

Because copyright is such a young concept -- and because things like fandom are drastically changing the way people consume and react to media -- we have a long way to go in terms of fine-tuning the legality of this kind of situaion.

My point is -- fan work shouldn't be dismissed out of hand. The issue isn't nearly so clear-cut as many posters have been suggesting.

hikaru004 wrote:

Insane E wrote:

Now I must ask, can you see any publisher taking Otakon to court over sales of fanart?

If something like that occured, it would prob end in an out of court settlement imo. But if that did occur, Otakon's reputation would be tarnished.

One of the issues here is that even if such a hypothetical law suit were settled out of court, Otakon's image would not only be tarnished, which would likely be a surmountable problem, the financial reprecussions would be severe. The legal fees associated with retaining a lawyer specializing in IP, researching and preparing a defense, and formalizing a legally binding settlement would probably be immense and could cripple our programming and capital improvements over several years, if not much worse.

For reference, in recent years Otakorp has already been forced to fight a legal skirmish of much smaller scale about trademark defense, and our legal costs were well into five figures even though a suit was never brought and compliance was swift. It's important to remember that for conventions the size of Anime Expo, Otakon, and San Diego Comic-Con, there's unfortunately a lot at stake when it comes to legal issues such as this, and we're constantly trying to identify and assume policy positions that both respect our members' expressed desires and keep our corporate liability at an acceptable level of risk.

Jonathan Harmon

Relations Section Head
OTAKON 2006
T: (919) 622-8413
F: (919) 962-0722
E: [email protected]

redbeangirl wrote:

My point is -- fan work shouldn't be dismissed out of hand. The issue isn't nearly so clear-cut as many posters have been suggesting.

Redbeangirl has a very salient point here, in that this isn't settled law anymore, because there's no longer definitive legal precedent to which to turn now that digital copyright cases have brought back mixed judgments and muddied the waters of Intellectual Propery law. That's precisely why this issue is so tricky and dangerous. One needs look no further than these boards to see how divisive this issue is, but there are likewise equally mixed opinions in the legal profession right now.

Jonathan Harmon

Relations Section Head
OTAKON 2006
T: (919) 622-8413
F: (919) 962-0722
E: [email protected]

hikaru004 wrote:

If something like that occured, it would prob end in an out of court settlement imo. But if that did occur, Otakon's reputation would be tarnished.

I think it may be too late for that. I think that Otakon's attendance this year may be affected in some way and it may even endanger their convention for next year over this change in their policy and the organizers themselves taking this upon themselves without so much of a complaint from the industry themselves.

Furthermore, Otakon's attendees, I would assume, are mostly from other states, which could also add further insult and endanger the future of the convention itself. I'm sure that their forums are going to opene up this "attitude" about their policy changes for their Artists Alley.

Last edited by cjovalle on Mon Jan 30, 2006 12:34 pm; edited 2 times in total

hikaru004 wrote:

I was wondering when does the federal side of this kick in. We've only been talking about civil consequences so far. Copyright infringement is a federal law violation. So say you get our out of court settlement, can the feds still come after you?

Copyright is mainly considered federal law and case law (there are a few exceptions, such as pre1972 sound recordings due to a New York case, but we'll ignore that for now). The law is mostly encoded in Title 17 USC. There are other related laws involving trade, but we'll ignore those for now too. The applicability of case law depends on what circuit you're in. Anime smile

The law is intentionally vague in some places (like fair use). It's complicated, contradictory, and unsettled. Certain determinations have to be made on a case by case basis, and if no case exactly matches, then people have to muddle through with what cases have been decided.

Copyright infringement is the violation of federal law, but has both civil and criminal aspects associated with it. Title 17, Chapter 5, §506 describes criminal copyright infringement. The feds can go after you for that. For civil copyright infringement, action must be initiated by the copyright holder. For the most part. ^^;

mufurc wrote:

hikaru004 wrote:

This sounds like a variation of the legitimacy of fansub arguement that I see so often here. Unfortunately, it really doesn't matter if the person makes $2 or $2 million dollars doing fanart/doujinshi. If the law states the activity is illegal, there should be no complaints otherwise and the activity should cease at public events. Just because an activity was tolerated in the past does not make it legal. It just means that said activity will eventually stop occuring if someone/some organization makes an issue of it.

See, this is all good and logical (though fanart is not the same case as fansubs since the latter deal with the product itself rather than art inspired by it), but the problem is, fandom doesn't operate this way. There are gray areas like fanart, fanfic, amvs, etc which are all technically illegal but companies (mostly) turn a blind eye on them because while they're illegal, they don't technically do harm to them.

Again, I have to point at what Japanese companies and artists are doing with doujinshi. Yes, doujinshi are practically illegal, and the companies have every right to crack down on them. It's totally within every copyright holder's rights to ban selling doujinshi based on their products, and it'd be easy to declare Comiket and other mostly doujinshi-related events illegal and forbid selling doujinshi in stores and online. But what good would that do? Nothing. It would only alienate and antagonize fans and pretty much annihilate many fandoms.

Fanartists don't draw fanart for a living. They mean no wrong to the copyright holders and neather do those who buy the art. As long as fanart is not declared official or artists don't try to pass traced-and-copied official art as fanart I don't see the reason in trying to smash fanartists with the mighty fist of law, simply because "omg selling fanart is illegal and we take law seriously!!1" What good would that do the copyright holders? It wouldn't make people buy more official products, it wouldn't make them more interested in official merchandise, etc. Yes, selling fanart is technically illegal. Still, it's an important element of fandom. I think this is one case when it'd be much wiser to be understanding and generous and just turn a blind eye.

It seems to me that you are attempting to legitimize an activity that is illegal in the US no matter how important fans regard it. (I feel the same way about amvs, but reality is reality.) If they wanted to be legit, then they should create their own characters and storyline 100% from the ground up or get permission from the copyrights holder to do said activity.

If they can't, then they should recognize the fact that they are involved in an activity that will eventually be halted at public events unless US law changes to allow it.

It's only a matter of time before someone has an issue with it and makes it a legal matter.

mufurc wrote:

hikaru004 wrote:

Besides, if a person comes to the event with only so much money, spending it on fanart is taking away from a sale of an officially licensed product.

Now that's just nitpicking.

Yeah, but that's what happens at cons. Reality cannot be denied because it's inconvenient.

Colonel Wolfe wrote:

I can see your point, Jonathan. Thanks for addressing the issue with the attendance cap, which clarifies things a little better. I think the problem with Otakon is that there are too many rules and too many policy changes to result in anything that could be considered a true anime event.

Well, I'd wholly disagree with you there, but that's ultimately a matter well within the realm of personal opinion... Wink

I'd personally say give Otakon a try, since it's difficult, if not impossible, to judge an event to which you've never been. Anime Boston is certainly, however, an excellent event to attend, although I must confess to Patrick - if he's reading - that I enjoyed it more in its first year.

In the end though, I do feel obliged to note that we are in the process of trying to fine-tune the Artists Alley/fan art policy, and that's why Jim Vowles, the convention chairman, stated that this is not settled policy. The posting of that information on the Otakon BBS was rather pre-mature, and it unfortunately caught a lot of people in relevant planning and policy positions unaware.

A contrite apology to everyone affected in the fan community is deserved for the considerable confusion, and I promise that a definitive statement from Otakon will be shortly forthcoming.

Jonathan Harmon

Relations Section Head
OTAKON 2006
T: (919) 622-8413
F: (919) 962-0722
E: [email protected]

I've been checking out the standards for Copyright Law at ( http://www.copyright.gov ) and while it does protect original works the Copyright Law does not express anything involving fan-created artwork. It only protects the original work created by the aretist, writer or creator of a piece of work. It also protects a piece of work created at a professional level for sale in the industry through book merchant stores. However, there is no mention of a piece of artwork created by a fan based on an established piece of work such as FanArt or Fan-Fiction.

Such work is designed for a very small audience, possible where FanArt is concerned, only one piece of work created from a fan's view and designed to be sold to another or traded/bartered off to another.

Now, judging from this such FanArt would probably be in violation of the Copyright Law if such work were mass produced, say like 50 copies of the same piece of work, such as a print, were sold in such a manner as to profit extensively from selling that merchandise.

FanArt isn't made nor sold as such and this could set Otakon up for a legal dispute as well.

To Jonathan,

Thank you for clarifying that valid point. I think the problem here was that Otakon officials prematurely made that topic a matter of public discussion and has caused this to ripple like a domino effect through the entire anime online community. To make matters worse, after reading the various comments here, it's becomming obvious that there are lot of fans who are shaking their heads at the thought of a change in this direction.

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