Fan(girl)Law

March 23, 2010

Australia’s proposed internet filter – submissions go live

Life as a legally-minded fangirl and geek in Australia has been incredibly interesting lately, particularly when it comes to censorship. Or perhaps, particularly because of censorship. First of all there’s been the debate over whether or not there should be a R18+ rating for computer games, something which has taken an interesting turn in the wake of the South Australian elections when the state’s Attorney-General Michael Atkinson announced his resignation. Atkinson, as all Australian gamers know, was widely seen as the biggest opponent of an adult rating for computer games, but it remains to be seen how much of an impact his departure will have on the issue.

The second censorship hot button Down Under is the mandatory filtering of Refused Classification content on the internet. There’s been more than enough noise about it on the Australian tech blogs and forums, and I’m sure I’m not exaggerating when I guess that most of the online, wired population of Australia knows about it and is strongly against it. The problem is, there’s still the majority of the Australian population that isn’t internet-savvy and so doesn’t understand the wider implications of what is being proposed by this filter, let alone why it’s such a bad idea.

I am, however, starting to hope that lack of awareness is starting to change. First good news: Shadow Treasurer Joe Hocket is now on public record as a critic of the filter, then the Reporters Without Borders put Australia on it’s ‘internet enemies’ list which forced Communications Minister Conroy to defend his policy. There’s been the whole showdown between Google and China over censorship which is making headlines around the world and highlighting internet censorship as an issue. Now today, the Department of Broadband, Communications and the Digital Economy has published most of the 174 submissions received on the filter.

Personally I’m rather skeptical about the terms of the call for submissions — the submissions are supposed to be on ‘measures to increase the accountability and transparency’ for the Refused Classification filter list, as if the filter is already a given and the government is just nutting out the details of how it will work, rather than submissions on whether or not Australia should have a filter in the first place — but a look through the submissions is rather fascinating. The big technology companies Google, Yahoo and Microsoft have all made submissions, as has Optus and Telstra and the Internet Industry Association which is unsurprising. There are a lot of submissions from private individuals that I want to look through, and at least one submission from a Christian group. Then there are submissions from academic professors around Australia, including one I’m finding particularly fascinating from Sociology Professor Mark McLelland on what the filter means for anime/manga fans, particularly those writing slash fanfiction (short answer: it’s all bad). Yet even though the terms of reference for submissions are supposed to focus on what can be done to make the filter more accountable and trustworthy, rather than whether or not a filter is needed, I’m keeping my fingers crossed that some good can come out of this and that the issue does gain more traction in the wider community. Especially with a federal election on the horizon …

March 15, 2010

Proposal to amend Tokyo law to ban fictional/virtual child pornography

A legislative proposal was submitted on February 24 to amend Metropolitan Tokyo’s youth welfare law on child pornography to include sexually provocative, “visual depictions” of characters who sound or appear to be 18 years old or younger. Manga creators are understandably worried.

Am somewhat knocked out at the moment by a head cold so I’m not really able to say much other than this seems an appropriate place to reference Helen Lovejoy.

March 2, 2010

Nick Simmons, the internet mob, and copyright

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 [edit]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!

February 27, 2010

Manga-inspired comic ‘Incarnate’ accused of copying BLEACH, Hellsing, other manga

Filed under: copyright,fandom,infringement — Jozebel @ 12:19 PM
Tags: , ,

Last year Nick Simmons, son of Gene Simmons of KISS, launched his career as a cartoonist by releasing a manga-inspired American comic entitled Incarnate which was released through Radical Publishing. The comic is about demons and immortals and secret societies with lots of gore and violence, blah blah, it’s a familiar story concept. The characters, however, also look somewhat familiar.

...Kenpachi?

(Image hosted at Photobucket, linked from Bleachness LJ community)

…Kenpachi?

What some very savvy manga and comic fans have noticed is that a number of the characters bear a remarkable resemblance to characters from published manga such as BLEACH, Hellsing, Full Metal Alchemist and possibly others. Furthermore, not only do various characters look plagiarised, but entire panels of the Incarnate comic may have been traced and copied from those manga series, and in the days since this issue became Big Internet Drama manga fans have been putting up plenty of examples of suspected tracing in the Incarnate comic, with most disseminated at the Bleachness LJ community. Some examples may just be coincidence — there’s only so many angles from which you can draw a fist about to punch someone — but there’s a lot that looks suspiciously similar.

The manga fan in me is applying palm to face — of all things to try utilising Nick Simmons used some of the most popular and biggest selling manga titles, it was only a matter of time before fans starting drawing conclusions. The copyright lawyer in me however is getting popcorn and sitting back to watch what happens because while the question “did Nick Simmons infringe copyright in ‘creating’ his work?” may be fairly simple the question of to what extent is he liable for the infringement definitely is not.

There’s also the contract and licensing issue. Radical Publishing have released a statement saying that they’re aware of the issue and have halted all production and distribution of Incarnate while they try to resolve the matter with the “publishers of the works in question” but which publishers, VIZ COMICS, who holds the license to translate and publish BLEACH in North America, or Shueisha who originally published the manga artwork in Japan? Both? Also if there is going to be legal action taken over this, who’s got the best bankai to win the fight?

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