I’ve been following the Incarnate/BLEACH drama over the past few days with half an eye, mostly out of professional curiosity as to whether who if anyone is going to go so far as to file a court action for copyright infringement, fascination at how the internet mob’s campaign to bring Nick Simmons to account wandered into discussions on why fanart and doujinshi sold at conventions is different and can be justified, and more often than not, frustration at the endless misunderstandings people have on intellectual property law. As things went on, however, with various online news outlets from Anime News Network to the New York Times blog beginning to pick up the story and a petition being started calling for legal action against Nick Simmons, I’ve found myself increasingly uneasy and/or faceplaming about the direction the outrage is taking, particularly given that very few people seem to understand the significance of what they’re calling for in demanding legal action to be taken against Nick Simmons, for a few reasons.
1) Although closely related, there’s a difference between plagiarism and copyright infringement. Plagiarism as anyone who’s been to school should know, is intellectual dishonesty where someone uses writing, ideas or concepts taken from someone else without crediting or citing the source and represents it as their own. Copyright infringement on the other hand is an unauthorised use of a work protected by copyright. They’re very similar and both terms can be applied to the same thing, but only one is definitely actionable at law. The other will seriously damage your reputation and credibility as an author or artist but won’t be actionable at law unless it’s also an infringement of copyright. For example, I could copy a Shakespeare sonnet and put it up online claiming I wrote it, but while I would get lynched and ridiculed by the internet it’s not an infringement of copyright because the works of Shakespeare are in the public domain. Similarly, I could write a war novel where one character makes a stirring battlefield speech that is essentially a rewrite of short minor passage from The Lord of the Rings but while LOTR fans might make an outcry the chances of me being legally found to have infringed copyright are pretty low. Nick Simmons ripping off concepts or plot points from BLEACH or Hellsing doesn’t automatically mean he’s infringed copyright, if nothing else because copyright doesn’t protect ideas, only the expression of them.
2) Court action is complicated, time-consuming, stressful, and expensive. It’s not something people jump into lightly or quickly (let alone on the basis of petitions from interested but legally uninvolved third parties), and even huge corporations will get legal advice first on their chances of success and whether or not it’s worth taking legal action. With Incarnate it’s even more complicated as there are several artists ranging from professional manga-kas to amateurs on DeviantArt whose art has apparently been used in Incarnate. Each of them would have to identify the specific instances in the Incarnate comic where their copyright has been infringed and assess whether those instances are strong enough to take action over. All those examples put up at the Bleachness LiveJournal community? Not all of them are going to be worth arguing, and while there are certainly panels that look traced or copied there are others that are more likely to be seen as generic. Then, once potential infringements have been identified they would have to think about whether it’s serious enough to sue over, and whether it’s going to be worth the cost. Keep in mind that many of these artists live outside of America in Japan — you think court proceedings are stressful and complicated in your own language and legal system, imagine how hard it would be for someone who doesn’t speak English and has to get a crash course in a foreign legal system and copyright law. And then how expensive it would be run said legal case from Japan. Unless you’ve got a strong enough case and could potentially win enough damages to make it worth the expense, suing for copyright infringement in this case just might not be worth it.
3) “But it’s the principle of the matter!” some fans say. “He shouldn’t get away with ripping off an artist’s work!” Putting aside the double-edged sword of this statement (how many BLEACH fans read scanlations online or download fansubs?) if it’s the principle of the matter then I would say Nick Simmons has probably already been punished. Radical Comics has halted the production, distribution and sales of Incarnate and has suffered a huge blow to its reputation as a comics publisher for encouraging Nick Simmons and/or allowing this to take place. Nick Simmons himself has lost whatever credibility he had with the fan community (the comments on his DevArt page speak for themselves) and will find it extremely difficult if not impossible to publish any other works in the near future. That’s the power of the internet and fandom for you, and I don’t see any reason to add court action on top of it all, especially given the legal and procedural difficulties of doing so.
4) If this matter was taken to court and a judge decided that Nick Simmons had infringed copyright, it might be the worse thing to happen to fan-art and doujinshi in America[/edit]. For all that people argue that fanart and doujinshi is different to Incarnate because fan-artists do it out of love, don’t make any claim to the original work and credit the original creator (see Deb Aoki’s article for a great look at this argument from fans), as far as the law is concerned there’s unlikely to be much difference: both make an unauthorised use of a copyrighted work, both are published and sold for money. Sure, there’s the grey area of fair use in America and people love to point out that the manga/anime industry in Japan deliberately turns a blind eye to doujinshi despite the hugeness of Comiket (this, it should be emphasised, exist in a very specific cultural context and is unlikely to work anywhere else least of all America), but it’s this grey area which allows fan-art and doujinshi to be exist and be at least overlooked or tolerated by copyright holders. If a judge came down with a decision that set the boundaries what was and wasn’t allowed by holding that Incarnate infringed the copyright of Kubo Tite and the others, that might very well start clarifying the legal status of derivative (read: fan) works. In fact, under such a decision doujinshi and fan-art could arguably be considered worse infringers than Nick Simmons and Incarnate in that although there are visible links between Incarnate and BLEACH at least Incarnate attempts to be original and is therefore further removed from the original work, whereas a doujinshi makes no secret of the fact that it uses another artist’s characters and creations. Admittedly the very small pockets of fan-artists and doujinshi artists make them very small targets for copyright infringement actions — but no one wants to be the first to be hauled up and made an example of.
This is not to condone what Nick Simmons (or his colourists, assistants, editor, whoever) has done. Certainly he’s crossed a line of good authorship, and to be perfectly frank it’s disappointing to see an artist of average skill at best get a comic book deal due to his celebrity status when there are so many hard working and highly talented artists out there who deserve a break. However, as far as calling for him to be brought to justice in court goes I’ve yet to be convinced that’s in anyone’s best interests.
Oh, and those picking apart Nick Simmons’s statement on the matter for not apologising or admitting what he’s done are really expecting too much. There’s a potential lawsuit at stake here; no one least of all Nick Simmons is going to be saying anything that could be an admission of liability.
EDIT: There’s been quite a few comments coming through on this which is fantastic, however while I’d love to respond to each of them I do have my “day time” job to take care of, so please be patient if I take a while!