Communitas: Fair Use In Fandoms

This story was originally posted at SporRepor.com on May 5th 2017 as Part 2 of a 4 Part series on the intersection of sports and anime fandoms.

During my time at college, fair use law was one of the largest topics I tackled in my journalism studies. As a journalist, as well as someone who simply creates content and shares it online, fair use law has become a growing part of the online ecosystem the past decade. The same can be said for the sports fandom and anime fandom.

In case you do not know what fair use law entails, I’ll keep this description brief. Long story short, fair use law allows for content that is protected under copyright and trademark laws to be used by individuals who do not hold those rights under certain circumstances. Set factors, laid out by the law, ultimately dictate whether a piece of content can fall under fair use or if it infringes on the rights of another party. I can get further into fair use law further but, two years later, I still have nightmares from writing that term paper.

Japan, compared to the United States, is far more strict legally with regards to fair use. By and large, if a work is not for personal or academic purposes, you must seek out permission from the original author in order to use their work. Japanese copyright law does not take into consideration how the new work affects the original work as well as the nature of the work. For example, under Japanese law, Pepsi could’ve prevented Saturday Night Live from using their logo while mocking their Kendall Jenner ad because parody isn’t protected.

So you’d think that means the anime community is far more restricted with regards to how they used copyrighted properties in their fandom, right? Wrong.

Even though they are under far stricter legal restraints, anime fans are given far more room to express their passions, and profit off of them, than sports fans.

Deeply embedded within the anime community is what is known as dojinshi. Dojinshi describes amateur works, such as manga and novels, within the anime and manga communities. Most dojinshi, though not all, will often use well-known characters as the basis for their works. From there, the artist uses this character in whatever way they see fit in order to express what they want to get across. Sometimes it could be as simple as drawing a character in a new outfit or using a different art styles. Other times…well, just look up Rule 34 and connect the dots yourself.

While dojin artists make sure to not take their freedom for expression for granted, often limiting the amount they sell in order to not draw the ire of the original creators, it’s an intrinsic part of the community. Successful manga artists and anime creators will often sharpen their pens as dojin artists before making it big. Given the independent nature of dojinshi, even current well-established mangaka will still produce dojinshi in their spare time under pen names. Dojinshi is also credited for being the backbone of the manga industry and, without it, the level of art and amount of it would severely suffer.

Stateside, American dojinshi artists are often offered the same protections.

At Sakura-Con, beneath the vast show room, lies the artist alley. The artist alley is a place of individual artists, who often hop from one anime convention to another, gather to sell what could be described as westernized dojinshi. Amateur mangas and novels, pillars of the Japanese dojinshi scene, are nowhere to be found. In their place, however, is a vast amount of art that could only be described as an in-person Etsy mall. Art prints in various sizes are by and large what you’ll find in the artist alley with trinkets such as custom buttons and acrylic keychains filling out the roster.

Most of what is sold in the artist alley is, to be perfectly frank, copyright infringement. There’s no dancing around the bush on that one. While all of these works are original, the assets they use to create them are not. Even using the United States fair use law guidelines, most, if not all, of these works aren’t transformative enough to fall under fair use.

Yet, the anime community, and those who hold financial stakes in it, let it go on because it’s an important and large part of the community.

On the flip side, lawyers who protect the copyrights and trademarks for professional sports teams in the US are a bit more…aggressive with protecting their client’s works.

I’ve, personally, had to deal with this myself. Without getting into too much detail since I don’t want to cross the streams, I run a sports shop online fully independent from Spor Repor. A few months ago, on this shop, I debut a new design. These designs were nothing more than a geometric pattern that used corresponding two-color palettes. No one on the street would identify, at first glance, them as representing a specific sports team by any means. They were that bland.

For example, one was Los Angeles Lakers purple and yellow. In the title of the item, I only included the word “Laker.” In the meta description, which isn’t publicly visible, I included “Los Angeles Lakers” to garner more hits.

A week went by. I got ten hits on the item. I had zero sales. I also had a DMCA cease-and-desist letter in my mailbox from representatives of the Los Angeles Lakers to remove the item from my shop for infringing their copyrights and trademarks. Funny enough, the Clippers sent me one the next day. To prevent my shop from being terminated by the site it’s hosted on, I had to remove every other item using that design.

My case is not unique by any means. Sports franchises are inherently overprotective of their works. So much so, you could connect it to a lack of artistic creativity within the sports fandom. Not saying their aren’t creative individuals within them. What I am saying is the sports fandom, at its core, lacks what the dojinshi community brings to the manga and anime communities: artistic expression.

The sports fandom lags far behind the anime fandom in that respect. The Seattle Sounders’s Posters By The People is one of the rare examples of a team allowing fans to participate in artistic expression, whether it be admiration or financial compensation, by their fellow fans. Even then, the program is still under the guidance of the Sounders organization. Because of that, certain forms of artistic expression (yes, Rule 34) are still not allowed to potentially find a foothold in the community. I don’t expect something like this to go mainstream within the sports community by any means. However, it is a bit disheartening when on Etsy the majority of items which use protected marks such as teams logos aren’t doing anything more than slapping them on a different nicknack.

There are people who try to break through and, for a short period of time, have a foothold in the community. Regarding the Pacific Northwest, Homers Apparel is a creator I bought at least a half dozen Seattle-based sports shirts from. But, two years ago, they went dark with no notice as to why. Given the fact that they had Macklemore’s endorsement, I reckon they could’ve stayed afloat if they had shifted over to a print-on-demand site. Then again, if the Seahawks and Mariners blitzkrieged them with DMCAs, pulling the cord suddenly seems reasonable.

What am I trying to get at with all of this? It’s that it’s quite interesting that an industry based in a country with stricter copyright laws allows for their works to be more freely used by their fans than in an industry based in a country with far more lax copyright laws thanks to fair use. Given the longterm byproducts of both fandoms over the decades, one might wonder what would happen if sports franchises eased up a bit and let their fandom have more artistic expression.

I still have more to say on how sports and anime fandoms intersect and divert from one another. Stay tuned.