38980-swt_23-2 Sheet No. 52 Side A 05/11/2017 09:52:06 R R R R R R R R R R R R R R R . 413 ... 409 ..... 403 ...... 408 AXIMIZE DOJINSHI Yoshimi M. Pelc* M ...... 412 SE TO NALYSIS U A OPYRIGHT ...... 405 ”...... 416 SE C AIR U F AIR ...... 401 397 ARODY DOPT ...... 415 “P EEMED AS A ...... 420 APAN D PARODY AND PARODY U.S. F J CAN PROTECT JAPANESE PROTECT CAN ...... 418 ...... 398 HOULD ...... 421 S ARODY ...... 417 ...... 401 ACHIEVING THE COPYRIGHT THE ACHIEVING P APAN ROTECTION FOR THE J The Fair Use Provision Should Explicitly Prohibit The Fair Use Provision Should Explicitly Worth of the Judges from Evaluating the Artistic Secondary Work The Amount and Substantiality of the Portion Used The Amount and Substantiality of upon the Value of The Effect of the Secondary Work the Original Work Use” as a Japan Should Incorporate “Transformative of the Fair Use Sub-Factor into the First Prong Factors of Japan Should Codify the Definition Prong of the Fair “Transformative Use” in the First Use Factors The Importance of Parody for the Japanese The Importance Culture Works Japanese Copyright Law and Infringing Dojinshi and Tolerated Uses Secondary Use The Purpose and Character of the The Nature of the Original Work P OW VERVIEW OF THE ONCLUSION APANESE NTRODUCTION NFRINGEMENT IN EQUILIBRIUM: HOW FAIR USE LAW HOW FAIR EQUILIBRIUM: C. C. D. A. B. I A. B. C. A. B. I. I * J.D., May 2017, Southwestern Law School. The author would like to thank Professor V. C II. J IV. H III. O M K Silvia F. Faerman, Professor Tigran Palyan, and Professor Robert C. Lind for their guidance and Silvia F. Faerman, Professor Tigran Palyan, and Professor Robert C. Lind for their guidance own. advice in writing this article. Any errors or omissions in the analysis are solely the author’s \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 1 11-MAY-17 9:19 C Y 38980-swt_23-2 Sheet No. 52 Side A 05/11/2017 09:52:06 A 05/11/2017 52 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 52 Side B 05/11/2017 09:52:06 M K 1 ¯ O C Y To 6 UNKA HIHY [Vol. 23 S (May 15, ], B IMES RESENCE IN THE 113 (2010); Salil HUPPAN T P NDUSTRY , S I APAN J UILDING TRONG ¯ OKAI ” Y , S B K RADE AND MAGE I , T ] 222 (2016) (Japan). The Japanese anime and The Japanese HUPPAN 5 S . 155, 158 (2002). ARKET CONOMY EV E M STABLISHMENT OF A ULTURE AND ENKOKU E C L. R NIME & Z A and over seventy percent of electronic and over seventy UTGERS INISTRY OF 3 UBLICATION ¯ UJO P [M OWARDS THE Exporting Culture via “Cool Japan , 55 R ENKY ¯ O [T . (Dec. 5, 2013, 9:02 AM), http://www.hollywoodreporter.com/news/ RAMES OF K Popular animation series, often based on original Popular animation ¯ Manga comprises around thirty percent of the Manga comprises OSH U.S. Reaches Trans-Pacific Partnership Trade Deal with 11 Pacific 4 2 EP , F U UKETE R ANGY H M AGAKU ] 6, 15-18, 22-23 (2010), http://www.meti.go.jp/policy/mono_info_service/ (2010), ] 6, 15-18, 22-23 S EPORT ON THE UE . J. (Oct. 5, 2015, 5:12 PM), http://www.wsj.com/articles/u-s-reaches-trade-deal- K R T -Y S EIZAI ZE Kazuaki Nagata, K SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW OLLYWOOD T NDUSTRY at 16. ALL IKKOKU NI NNUAL See HUPPAN ,H I Id. See See The Government Released Its First Official Measure of How Arts and Culture Affect the The Government Released Its First Official Measure R Copyright and Comics in Japan: Does Law Explain Why All the Cartoons My Kid , W [A ¯ NTRODUCTION The film industry as a whole is without question an important whole is without industry as a The film Many Japanese believed that the industry was being threatened Many Japanese believed that the O ¯ 3. S 6. William Mauldin, 2. 4. 5. 1. O ENP ONTENT ANGY 2012), http://www.japantimes.co.jp/news/2012/05/15/reference/exporting-culture-via-cool-japan/ #.WJaGDtlrldU. Mehra, Watches Are Japanese Imports? Nations hollywood-creative-industries-add-504-662691. Economy with-11-pacific-nations-1444046867. mono/creative/bunkasangyou.pdf (Japan). The Ministry of Economy, Trade and Industry of Ja- mono/creative/bunkasangyou.pdf (Japan). The Japan” to express its commitment to promote Ja- pan had adopted an unofficial slogan “Cool anime and manga contents both domestically and pan’s soft power including the popularity of overseas. N S C 398 I. I com- given that its revenue States economy, to the United contributor services. for goods and the country’s GDP percent of prises three exports, of America’s major serving as one films also With Hollywood the world. has a prominent presence throughout the U.S. film industry (the Japanese considers the animation and manga Similarly, Japan players in the industry as one of the important term for comic books) Japanese economy. \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 2 11-MAY-17 9:19 Japanese printing industry Japanese printing manga, boost sales of character products in neighboring industries, in- of character products in neighboring manga, boost sales and action figures. cluding video games book sales in Japan. economy, just as the is a star player in the Japanese manga industry film industry is in the U.S. part of the Trans-Pacific Partnership while Japan was negotiating to be trade agreement signed by twelve Pa- (TPP) agreement, a multilateral U.S. and Japan in October, 2015. cific Rim countries including the comply with the agreement, Japan needed to enact a law allowing the comply with the agreement, Japan copyright infringement complaints in Japanese police to file criminal without the copyright holder’s cases of commercial copyright piracy 38980-swt_23-2 Sheet No. 52 Side B 05/11/2017 09:52:06 B 05/11/2017 52 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 53 Side A 05/11/2017 09:52:06 14 399 UM- NTEL- [S I ¯ ¯ OTEI NO O ATIFICA- Y R AIY -K G Feb. 4, 2016 [here- AN NO ˆ ASHIPPU - ORUM FOR THE F ˆ ATON CCOMPANY THE ¯ ORITSU P A APAN ¯ H O For that reason, many For that reason, , J 11 which are often based on which are often AW S T O 9 ANSURU L opened for signature TTP (last visited Feb. 9, 2017), http:// Even though the newly cre- ANTAIHEIY K 13 ], K (p.m.a.) to seventy years p.m.a. . (Oct. 2016), http://www.cric.or.jp/english/csj/ They further argued that because They further argued EIBI NI ELEVANT TR 10 S ], 3 (2016), http://www.cas.go.jp/jp/houan/160308/ R . C NFO ECRETARIAT RANSPARENCY OF S note 7, art. 18.63. ¯ T ORITSU NO . & I ARTNERSHIP ES -H As a result, the argument to adopt fair use law As a result, the argument to adopt supra P R ABINET 12 Part II.A. STABLISHMENT OF [C ANKEI ¯ E O ACIFIC K infra SPECTS AND note 5, at 164. note 5, at 175-76. post mortem auctoris -P ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING ANB They feared that enforcement of such a law would dis- enforcement of such a law would They feared that A OPYRIGHT 8 K supra supra RANS , C OMONAU Although one might think that copyright holders would holders that copyright think might one Although T 7 T MARY OF discussion TPP Agreement, ILL FOR THE LECTUAL ROPERTY TION OF THE AIKAKU B P See Development of Copyright Protection Policies for Advanced Information and Communi- See Urgent Appeal on TPP Intellectual Property Provisions Urgent Appeal on TPP Intellectual Property However, their fear turned out to be unwarranted because the fear turned out to be unwarranted However, their 8. Mehra, 9. 7. Trans-Pacific Partnership Agreement art. 18.77, 12. N 10. Mehra, 11. 13. 14. M K EIKETSU NI thinktppip.jp/?page_id=713&lang=en. cation Networks csj3.html. siryou1.pdf (Japan). inafter TPP Agreement], https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific- partnership/tpp-full-text. T It also requires Japan to provide statutory damages to copyright in- It also requires Japan to provide 2017] initiation. \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 3 11-MAY-17 9:19 courage the creation of parodies in Japan, courage the creation was not brought up during the 190th session of the Diet, after which was not brought up during the 190th the bill was approved by the Cabinet. welcome such a law, it created a unique problem within Japan’s anime within Japan’s a unique problem such a law, it created welcome by which the that the manner been argued industry. It has and manga of parody the creation piracy could affect the scope of law defines exception to parody as an not recognize Japan does works because the countries, including like many other infringement copyright United States. manga series. popular anime and ated criminal copyright law might not significantly affect the creation ated criminal copyright law might still impose a negative effect be- of parody, the TPP agreement could for copyright owners. For cause of its overly protective characteristics Japan to extend its copyright term example, the agreement requires from fifty years parody is believed to play an important role in Japan’s anime and to play an important role in parody is believed creations could this potential chilling effect on parody manga industry, of the whole industry. undermine the success idea to introduce a creators actively supported the Japanese parody law. that is modeled on U.S. fair use fair use provision the bill to amend the Japanese Cabinet Secretariat, when submitting of Representatives, specifically Copyright Act to the Japanese House not include secondary works such stated that the scope of piracy will as Japanese parodies. C Y 38980-swt_23-2 Sheet No. 53 Side A 05/11/2017 09:52:06 A 05/11/2017 53 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 53 Side B 05/11/2017 09:52:06 . M K 18 EV . L. C Y . U. M AND [Vol. 23 . L. R , 28 A , 49 V OLUM in order to 19 , 70 C Most problem- 16 The SOPA-TPP Nexus Copyright, Designs and Patents Act, 1988, 17 U.S.C. § 107 (2012) (fair use defense). with note 5, at 179-80 (explaining that Japanese manga note 5, at 179-80 (explaining that Japanese Compare Jonathan Band, see Copyright and the First Amendment supra Infringement Nation: Copyright Reform and the Law/Norm Infringement Nation: Copyright Reform and 20 While these changes will certainly strengthen changes will While these Mehra, 17 Reexamining Copyrights Incentives-Access Paradigm . 537, 549 (2007). Paul Goldstein, EV which is known as a major cause behind increases in the in increases behind major cause as a is known which See generally John Tehranian, L. R 15 art. 18.74. see also . 31, 58-62. TAH SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW EV See, e.g., See id. A fair use provision will serve to maintain a balance between pro- A fair use provision will serve to Although the Trump Administration’s withdrawal from the TPP Administration’s withdrawal Although the Trump L. R Part II, many Japanese “parodies” fall outside the legal definition of a parody and will not . 483, 572; , 2007 U L 19. 17 U.S.C. § 107 (2012). 20. Although the United Kingdom’s fair dealing doctrine is also a viable candidate for a 16. 17. For more detailed discussion, 18. Glynn S. Lunney, Jr., 15. ’ EV NT R 983, 1006 (1970). and anime artists often draw characters from Japan’s collective heritage). the copyright exception, this article exclusively focuses on the U.S. fair use doctrine because scope of the fair dealing doctrine is more limited than that of the fair use doctrine. As explained infra likely fall within the fair dealing categories. c. 48, §§ 29-30 (U.K.) (fair dealing defenses) I Gap tecting the interests of copyright owners and allowing free access to tecting the interests of copyright encourages parody creations. In existing copyrighted materials that TPP agreement, Japan had consid- fact, prior to the entrance to the exception into its Copyright Act for ered the adoption of a fair use 400 fringement, it would inhibit works is unduly restricted, If the access to preexisting parodies. of expressive works, including the overall creation stand between the that the original agreement will made it less likely that the U.S. will at- countries, it is still possible remaining partner that is similar to a bilateral agreement against Japan tempt to impose In such a case, pro-copyright owner the TPP agreement in the future. could be included in the bilateral provisions of the TPP agreement should not disregard. In the case agreement, a possibility that Japan effect in any form—whetherwhere the TPP agreement takes through partnership, Japan should adopt multi-lateral partnership or bilateral U.S. fair use doctrine a fair use provision modeled on \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 4 11-MAY-17 9:19 number of copyright lawsuits and damages awarded. and damages of copyright lawsuits number should also copyright owners, copyright protection the protection for access to preexisting the public’s interest in free take account of to some extent. employ preexisting materials works, as all creations protect parody creations. atic is that the Intellectual Property (IP) chapter of the agreement, chapter of the Property (IP) the Intellectual atic is that safe-harbor omits important U.S. proposal, based on the primarily available to Act makes the U.S. Copyright exceptions that rules and defendants. individual 38980-swt_23-2 Sheet No. 53 Side B 05/11/2017 09:52:06 B 05/11/2017 53 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 54 Side A 05/11/2017 09:52:06 401 GENCY o [The . (Sept. 2011), AG However, the However, 21 (July 1, 2013), http:// One reason why NFRINGEMENT IN IME 24 I , T , WIPO M OPYRIGHT C The Manga Phenomenon EEMED AS D Given the nature of the TPP agreement, Japan Given the nature (last visited Feb. 9, 2017), http://www.bunka.go.jp/seisaku/bunkash- 22 Japan has formally acknowledged both manga and Japan has formally acknowledged Japan Spends Millions in Order to Be Cool ARODY 23 ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING P FFAIRS A Act. No. 11110, Dec. 2, 2011 (S. Kor.). Bunka Shingikai Chosakuken Bunkakai (dai 41 kai) Gijiroku Haifushiry Bunka Shingikai Chosakuken Bunkakai (dai ¯ FOR See APANESE APAN ULTURAL J Japan has recognized the importance of intellectual property in Japan has recognized the importance This article addresses both how and why Japan should adopt U.S. both how and why Japan should This article addresses 24. Roland Kelts, 22. Jeojakkwonbeop [Korean Copyright Act], Act. No. 3916, Dec. 31, 1986, art. 35-3, 23. World Intellectual Prop. Org., 21. C M K world.time.com/2013/07/01/japan-spends-millions-in-order-to-be-cool/. http://www.wipo.int/wipo_magazine/en/2011/05/article_0003.html. Minutes of 41st Meeting for the Council for Cultural Affairs Copyright Subdivision], A Minutes of 41st Meeting for the Council for ingikai/chosakuken/bunkakai/41/index.html (discussing the necessity and feasibility to adopt a ingikai/chosakuken/bunkakai/41/index.html (discussing the necessity and feasibility to adopt general copyright exception similar to American fair use doctrine). amended by A. the Japanese Culture The Importance of Parody for popularity of Japanese manga and recent years. With the increasing anime overseas, 2017] fruition. came to never its efforts though years, several \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 5 11-MAY-17 9:19 should follow suit and adopt a U.S.-modeled fair use exception. and adopt a U.S.-modeled fair should follow suit parodies. Part II pro- in its Copyright Act to protect fair use doctrine of, and the rela- information of the development vides background and copyright law. Part III tionship between, Japanese parody U.S. fair use doctrine codified in the explains the four factors of the application of that doctrine. Part IV U.S. Copyright Act and judicial the U.S. fair use doctrine into proposes how Japan should transplant V which offers the conclusion. its copyright law, followed by Part II. J anime as important industries, and has begun to focus on strategically anime as important industries, and markets. promoting these goods to international Japanese anime and manga are popular, both within and outside of Japanese anime and manga are cartoons and comic books, Japan, may be because unlike American enactment of the amended Japanese Copyright Act in response to en- Act in response Japanese Copyright of the amended enactment to the TPP similar or an agreement the TPP agreement, tering into the for Japan to reconsider opportunity creates a viable agreement, equilibrium order to achieve exception in adopt a fair use option to need to and the public’s copyright owners the protection for between Faced with a similar materials for new creations. access copyrighted ways parallels that of whose legal system in many need, South Korea, identical to the enacted a fair use provision almost Japan, recently trade agreement with when it entered into a free U.S. fair use doctrine the United States. C Y 38980-swt_23-2 Sheet No. 54 Side A 05/11/2017 09:52:06 A 05/11/2017 54 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 54 Side B 05/11/2017 09:52:06 M K 31 30 25 RT UL- C Y APAN A C J UTEUR [Vol. 23 /A featuring ANGA M RTIST APERS IN P A dojinshi DULT , A ANGA Campbell v. Acuff-Rose ORKING , M See W INSELLA Parody manga artists Parody manga K ). 28 Thus, the economic suc- Thus, the , https://missdream.org/sailor-moon- 26 ‘Manga’: Heart of Pop Culture, 111 (2000). URMUEHLIN HARON S REAM Z so that the artists can use the so that the artists D Sailor Moon OCIETY 29 ISS S see also ARILYN , M , M APANESE Thus, Japanese parody manga and anime Thus, Japanese parody manga and Minoru Matsutani, J 32 see also The Significance of Manga in the Identity-Construction of Young The Significance of Manga in the Identity-Construction note 5, at 164, 175; The Key to the Popularity of Japanese Manga Because only a handful of amateur manga artists Because only a 27 , 510 U.S. at 580; 17 U.S.C. § 107. note 5, at 164. ONTEMPORARY note 25, at 2. supra Sailor Moon Doujinshi C , supra supra , http://www.japanese-manga-artist.com/%EF%BD%81%EF%BD%92%EF% SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW TURE Mehra, Rena Seiya, DE OWER IN See Campbell See, e.g. See See ANGA The large base of Japanese artists who actively create these of Japanese artists who actively The large base (May 26, 2009), http://www.japantimes.co.jp/news/2009/05/26/reference/manga-heart-of- & P ., issue 1 art. 2, 2006, 2; 31. 32. 30. Mehra, 29. 28. to Japanese works that borrow characters I use the term ‘“parody”‘ to specifically refer 25. Hsiao-Ping Chen, 26. Chen, 27. M DU IMES characters from the popular manga/anime series doujinshi/ (last visited Feb. 9, 2017) (exhibiting translated version of Japanese Music, Inc., 510 U.S. 569, 580 (1994). BD%94%EF%BD%89%EF%BD%83%EF%BD%8C%EF%BD%85%EF%BC%91-the- visited Feb. 9, 2017). key-to-the-popularity-of-japanese-manga/ (last to depict their own stories. “Parodies” can include and storylines from popular anime and manga on the original. legal parodies, as long as they criticize or comment American Adults: A Lacanian Approach E T pop-culture/#.VlUc_n4vfIU. which requires the work to criticize or comment on the original. which requires the work to criticize on a pre-existing work’s origi- Rather, these “parodies” often expand stories by adding new elements or nal storyline or create derivative characters to the original. 402 their audience. as adults anime target and manga Japanese many accompa- detailed drawings, elaborate and often filled with They are complex plots. engaging and often nied by \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 6 11-MAY-17 9:19 can get their works commercially published, many of them privately commercially published, many can get their works known as “parody manga.” publish what is to increase the visibility of their own publicity of the original manga refer to these works as “parodies” work. While many Japanese people fit the legal definition of a parody, in Japanese, they actually do not cess of Japanese anime and manga is partly owed to the fact that many owed to the fact manga is partly anime and cess of Japanese as entertainment. can enjoy them regardless of age, people, fuel the success of and as amateur authors, works, both professionally by amateur art- and manga. In fact, manga creations Japanese anime of amateur artists are in Japan, as large numbers ists are visibly active the professional for the opportunity to enter constantly competing manga industry. often borrow characters and storylines from popular anime and and storylines from often borrow characters their own stories, manga to depict 38980-swt_23-2 Sheet No. 54 Side B 05/11/2017 09:52:06 B 05/11/2017 54 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 55 Side A 05/11/2017 09:52:06 , 36 34 403 See List ? 4 (Feb. 4, ? 4 (Feb. in Japan, it ARKET has continued M 33 OMIC C dojinshi dojinshi Some scholars believe For this reason, Japa- For this reason, 37 38 39 HAT IS THE , http://www.japaneselawtranslation.go.jp/ ., W First, the JCA protects creative OMM , are considered to be an important , are considered 41 C RANSLATION , https://en.wikipedia.org/wiki/List_of_films_based_on_ which is similar to the American Copy- which is similar to the American 40 dojinshi L. T REPARATIONS IKIPEDIA note 5, at 164 (noting that parody manga is most often produced note 5, at 164 (noting that parody manga is most Legal Fictions: Copyright, Fan Fiction, and a New Common Law Legal Fictions: Copyright, Fan Fiction, and a . P note 33, at 654, 664 (explaining that fan fiction is noncommercial note 33, at 654, 664 (explaining that fan fiction . 651, 655 (1997) (describing that fan authors creating fan fictions . 651, 655 (1997) (describing that fan authors , W APANESE KT J supra EV M supra market serves to develop young talent by securing a develop young talent by securing market serves to o [Copyright Act], Law No. 43 of 2012 (Japan) [hereinafter Japanese Cop- o [Copyright Act], Law No. 43 of 2012 (Japan) note 5, at 164. note 5, at 164. ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING OMIC . L. R Mehra, Berne Convention for the Protection of Literary and Artistic Works, arts. 1-21, supra supra , C NT Tushnet, which are typically sold at large-scale, organized commer- sold at large-scale, organized which are typically translated in Rebecca Tushnet, dojinshi 35 at 197. , with Id. See, e.g. Compare See . L.A. E Despite the massive economic success of Despite the massive economic Although parody manga possesses many characteristics similar to characteristics similar possesses many parody manga Although OY See generally 37. Mehra, 38. 39. by the manga industry because many In Japan, the anime industry is heavily affected 41. Because both Japan and the United States are signatories to the Berne Convention and 36. 40. Chosakukenh ¯ 35. Mehra, 34. 33. M K 2008), http://www.comiket.co.jp/info-a/WhatIsEng080528.pdf. studios are based on popular manga series. anime works professionally created by anime of Films Based on Manga law/detail/?ft=1&re=01&dn=1&x=49&y=20&co=01&ia=03&ky=%E8%91%97%E4%BD%9C %E6%A8%A9%E6%B3%95&page=13 (last visited Feb. 9, 2017). the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, both countries are obligated to incorporate the minimum standards for copyright protection into their copyright law. Trade- Sept. 9, 1886, 25 U.S.T. 1341, 828 U.N.T.S. 221(revised July 24, 1971); Agreement on Related Aspects of Intellectual Property Rights art. 9, Apr. 15, 1994, 1869 U.N.T.S. 299. yright Law] for sale), and mostly nonprofit). 17 L manga (last visited Feb. 9, 2017). borrow characters and settings for use in their own writings). borrow characters and settings for use in their would most likely be deemed copyright infringement under the Japa- would most likely be deemed copyright nese Copyright Act (JCA), B. Works Japanese Copyright Law and Infringing 2017] fan-cre- rather sense, but a legal least in all, at parody at not is often fan fiction. are more akin to works that ated cartoon manga is is that parody difference the most significant fan fiction, are not. fan-fiction works American for profit, whereas often sold are called printed for sale that are privately parody manga Japanese dojinshi short-duration spot market for The commercial since its debut in the 1970s. to thrive in Japan \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 7 11-MAY-17 9:19 cial conventions, some of which attract nearly half a million visitors. some of which attract nearly half cial conventions, right Act (ACA) in many ways. part of Japan’s anime and manga industry. part of Japan’s anime that the nese “parodies,” especially nese “parodies,” place for them to improve their skills and foster creativity while re- improve their skills and foster place for them to to support themselves. couping some profit C Y 38980-swt_23-2 Sheet No. 55 Side A 05/11/2017 09:52:06 A 05/11/2017 55 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 55 Side B 05/11/2017 09:52:06 M K 48 C Y —a [Vol. 23 AIBANSHO ONOUR OF 17 U.S.C. Moreo- whereas S H 49 ¯ 50 O dojinshi Thus, when AIK see also 44 RITINGS IN : W Third, fictional char- Third, fictional AW 43 L 17 U.S.C. § 106(2). including copying for pri- 46 see also OPYRIGHT Instead, the JCA enlists a lim- http://www.courts.go.jp/app/hanrei_en/de- C 45 Part IV, these dissimilarities should be Part IV, these dissimilarities should APANESE ., J translated in infra ] Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930); Nichols v. Universal Pictures Corp., 45 F.2d ANEA ET AL G 58-61 (2005). note 5, at 175-76.; Japanese Copyright Law, arts. 30-49. see also Second, both the JCA and ACA accord copyright own- ACA accord both the JCA and Second, ETER o Saibansho [Sup. Ct.] July 17, 1997, 1992 (o) no. 1443, S o Saibansho [Sup. Ct.] July 17, 1997, 1992 42 As discussed AIBANSHO WEB supra , P 51 artist takes characters from an original anime or manga from an original anime artist takes characters and quotations for news reporting, criticism, or research. and quotations for news reporting, SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW CHRICKER [S Japanese Copyright Law, arts. 21, 27-28; Saik ¯ Japanese Copyright Law, arts. 2-(1)(i), 10-(1)(vii) (providing that JCA protects pro- Japanese Copyright Law, arts. 2-(1)(i), 10-(1)(vii) 47 , or parody in general, is relatively low in Japan, a limited , or parody in general, is relatively S ¯ U See See See, e.g. See Although the number of copyright infringement cases involving Although the number of copyright Despite these similarities, there are also dissimilarities between there are also dissimilarities Despite these similarities, 43. 44. 45. 17 U.S.C. § 107. 46. Mehra, 47. Japanese Copyright Law, art. 30(1). 48. Japanese Copyright Law, art. 32. 49. 50. Japanese Copyright Law, arts. 18-20. 51. Visual Artists Rights Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089; 5128-33 (codified 42. dojinshi ANREISH ERHARD § 102(a) (2012). Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.2d 945 (9th Cir. 1954). Warner Bros. Pictures v. Columbia Broad. Sys., duction in which thoughts or sentiments are expressed in a creative way); duction in which thoughts or sentiments are tail?id=1484 (Japan); as amended at 17 U.S.C. §106A). considered for “parody” protection. dojinshi G H These provisions are narrowly interpreted by Japanese courts, and These provisions are narrowly American fair use doctrine. thus, far from comparable to the 404 similar works, cinematographic and works such as literary expressions to the ACA. \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 8 11-MAY-17 9:19 ers exclusive economic rights, including the reproduction right and the reproduction including the economic rights, ers exclusive based on of derivative works the creation create or authorize right to right). (adaptation copyrighted works existing ited “laundry list” of permitted copying, ited “laundry list” of permitted vate use American law limits moral rights protection to narrow categories of American law limits moral rights visual arts. acters are protected both in Japan and the United States. in Japan and the protected both acters are ver, the JCA contains protection for the moral rights of the original ver, the JCA contains protection the work’s integrity, author, including the right to preserve a to create copyright holder’s permission work without the secondary work—hereproduction right or she would likely violate the under both Japanese right of the copyright owner and the adaptation and U.S. law. the creation of paro- Most notable and relevant to the JCA and ACA. to copyright does not include a general exception dies is that the JCA use provision offers rights, while the ACA’s fair owners’ exclusive flexible defenses to certain copying. 38980-swt_23-2 Sheet No. 55 Side B 05/11/2017 09:52:06 B 05/11/2017 55 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 56 Side A 05/11/2017 09:52:06 — 405 Many These AIBANSHO 55 S 56 . In addi- dojinshi 57 AIKO This incident Although the 52 Similarly, a To- 53 54 potentially violates potentially ) depicting characters of Thrilling Memorial dojinshi dojinshi ] 1, http://www.courts.go.jp/app/files/hanrei_ industry coexists and even thrives ¯ O ¯ OH o Dist. Ct.] Aug. 30, 1999, Hei 11 (wa) no. 15575, dojinshi oky ¯ AIBANREI J [S , the ] 1, http://www.courts.go.jp/app/files/hanrei_jp/283/053283_hanrei ¯ in a sexual manner was arrested and fined for arrested and manner was in a sexual U usually sell only some hundred copies for around usually sell only some hundred note 5, at 195. note 5, at 198. ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING artist who depicted original characters from the popu- characters from depicted original artist who o Saibansho [T ¯ dojinshi emon supra supra —most owners. In rights of copyright violate the likely AIBANSHO WEB Pok´ o Chih ¯ dojinshi o Saibansho [Sup. Ct.] Mar. 28, 1980, Sho 54 (o) no. 923, S o Saibansho [Sup. Ct.] Mar. 28, 1980, Sho [S at 165-66, 185-87. . dojinshi oky ¯ ¯ U Id. Id Despite the obvious copyright infringement issues associated with Despite the obvious copyright infringement dojinshi 57. 56. Mehra, 54. 55. T ¯ 53. Saik ¯ 52. Mehra, M K ANREISH HITEKI ZAISAN SAIBAN REISH may also violate the author’s moral rights. In 1966, a famous alpine the author’s moral rights. In 1966, may also violate C jp/668/013668_hanrei.pdf (Japan). .pdf (Japan). H 2017] “parodies”—includ- Japanese that suggest opinions of judicial number ing 1999, a \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 9 11-MAY-17 9:19 lar anime lar anime the plaintiff’s popular role-playing game, the plaintiff’s popular role-playing kyo court granted a permanent injunction to a Japanese video game kyo court granted a permanent from selling videocassettes of a company to prevent the defendant of “parody anime” (an anime version protection for the original authors’ cases highlight Japan’s strong moral rights in the context of “parodies.” C. Dojinshi and Tolerated Uses the creation of and resulting punishment indicates that indicates that punishment and resulting collage was clearly political speech that expressed the parodist’s criti- political speech that expressed collage was clearly of the Alpine re- warning of the over-development cism about and Amano violated the Supreme Court held that Mad sorts, the Japanese of his work. plaintiff’s right to maintain the integrity scholars have attempted to attribute different factors to reach a logical scholars have attempted to attribute One commonly cited reason is explanation for this odd phenomenon. economic sense in Japan, given the because litigation does not make fact that copyright infringement under criminal copyright law. criminal copyright infringement under copyright side-by-side with the mainstream anime and manga industry. side-by-side with the mainstream the copyright holder’s economic rights. Furthermore, other cases sug- economic rights. Furthermore, the copyright holder’s gest that “parodies”—both and as parodies in a legal sense five dollars each, making the damages amount quite low. five dollars each, making the damages photographer brought a copyright infringement action against a fa- a copyright infringement photographer brought he had overlaid an called Mad Amano because mous political parodist plaintiff’s black and Bridgestone tire onto image of a larger-than-life of a snowy alpine slope in Austria. white photograph C Y 38980-swt_23-2 Sheet No. 56 Side A 05/11/2017 09:52:06 A 05/11/2017 56 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 56 Side B 05/11/2017 09:52:06 M K N- C Y I au- au- . L. & has [Vol. 23 (Dec. 19, NVTL . E IMES dojinshi dojinshi T dojinshi note 5, at 179-80 EMP NTERNATIONAL note 9. Japanese Copyright , I APAN . 154, 159 (May 2013), supra , 21 T EE , J See industry could be L supra TUD Even manga artists Even manga , S Many corporate au- Many corporate 58 After all, 62 Mehra, 63 DWARD dojinshi ECEPTION & E note 5, at 184 (suggesting that main- see also do not usually take legal ac- do not usually take market. activities often exhibit general activities 61 HOW & R supra C.K. C dojinshi dojinshi UDIENCE Mehra, Many of the original authors take the Many of the original authors take 64 Like Holding a Bird: What the Prevalence of Fansubbing Like Holding a Bird: What the Prevalence of may well explain why the number of in- may well explain ANIEL , J. A , given the industry’s historical practice of practice industry’s historical , given the D 60 because they became professionals them- they became because see also See note 58, at 159 (suggesting that since dojinshi, as “amateur The Cultural Dynamic of Doujinshi and Cosplay: Local Anime The Cultural Dynamic of Doujinshi and Cosplay: authors because they believe that authors because note 5, 184. dojinshi supra Comiket, Where Otaku Come to Share the Love 84-85, 91 (West, 2nd ed. 2012); dojinshi supra dojinshi ROPERTY SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW P TELLECTUAL Lamerichs, Jun Hongo, Mehra, conventions to advertise their works. conventions to 65 See Urgent Appeal on TPP Intellectual Property Provisions See See See These reasons, coupled with the general tendency of Japanese coupled with the general tendency These reasons, However, this fragile relationship between the professional However, this fragile relationship Likewise, large corporate authors Likewise, large corporate . J. 131, 148 (2003). 59 65. 64. 59. along with the utilitarian theory and Confucianism is one of the theories of copyright, 63. 62. 60. Sean Kirkpatrick, Comment, 61. copyright law. Corporations can be authors under Japanese 58. Nicolle Lamerichs, ECH manga,” are often created as works of love). T 2013), http://www.japantimes.co.jp/culture/2013/12/19/general/comiket-where-otaku-come-to- share-the-love/#.VlWQKH4vfIU; stream manga publishers use dojinshi markets to advertise their works). http://www.participations.org/Volume%2010/Issue%201/10%20Lamerichs%2010.1.pdf. creations as the common heritage of people the natural right theory, which viewed intellectual through free access to them. Under Confucianism, that was necessary for proper socialization copying was regarded virtuous. Can Teach Us About the Use of Strategic Selective Copyright Enforcement Can Teach Us About the Use of Strategic Selective Law, art. 15. (noting the historical practice of “borrowing” of manga characters). (noting the historical practice of “borrowing” Fandom in Japan, USA and Europe manga and anime industry, and the amateur manga and anime industry, and the 406 are manga artists professional some disincentive, to the economic tion towards lenient \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 10 11-MAY-17 9:19 stance that they will tolerate the commercial activities of stance that they will tolerate the harm being done to the original thors so long as there is no obvious works. fringement cases involving “parodies” is low. fringement cases people to avoid litigation, people to avoid thors are often enthusiastic fans of the original works, and their fans thors are often enthusiastic fans are also fans of the original. tion against selves after their success in the their success selves after thors and copyright holders, including major publishing and entertain- holders, including major publishing thors and copyright attended large-scale such as Disney Japan, have ment companies dojinshi who have never participated in never participated who have tolerance towards tolerance some positive impact on their original works. some positive impact “borrowing,” which may be rooted in the traditions of Confucian- the traditions of be rooted in which may “borrowing,” ism. 38980-swt_23-2 Sheet No. 56 Side B 05/11/2017 09:52:06 B 05/11/2017 56 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 57 Side A 05/11/2017 09:52:06 66 407 Scott See . (July 25, . dojinshi EV R oritsu no Seibi ni could file a could file dojinshi SIAN A ], http://www.shugiin.go , it is still possible anyone IKKEI , N dojinshi However, after the enact- However, EPRESENTATIVES 67 fall outside the definition of fall outside the activities on the professional R OUSE OF dojinshi dojinshi [H otei no Teiketsu ni Tomonau Kankeih ¯ incident occurred because Nintendo, the occurred because incident Why Cosplay Fans Fear TPP ¯ UGIIN H series, filed a criminal complaint for copyright a criminal complaint series, filed emon ashippu Ky ¯ (July 27, 2015, 1:00 PM), http://www.crunchyroll.com/anime-news/ aton ˆ Pok´ emon Mariko Tai, , was one of the leading activists for the protection of Therefore, Japan should reconsider the option to Therefore, Japan should reconsider o P ˆ note 5, at 180. ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING 69 Pok´ see also supra RUNCHYROLL Love Hina , C Even though the definition of piracy is narrow enough in definition of piracy is narrow Even though the oritsuan [Bill for the Establishment of Relevant Laws to Accompany the Ratification oritsuan [Bill for the Establishment of Relevant 68 Manga Author Ken Akamatsu Renews Concerns About Trade Deal’s Effect on Doujinshi 67. Mehra, 68. TPP Agreement, art. 18.77. 69. Ken Akamatsu, a Japanese professional manga artist known for a popular manga and 66. is reserved until the agreement enters Japan’s obligation to abide by the TPP agreement M K 2015, 1:00 PM), http://asia.nikkei.com/Life-Arts/Life/Why-cosplay-fans-fear-the-TPP. .jp/internet/itdb_gian.nsf/html/gian/honbun/houan/g19005047.htm (last visited Feb. 10, 2017) (Ja- .jp/internet/itdb_gian.nsf/html/gian/honbun/houan/g19005047.htm the TPP agreement or an agreement similar to pan). Nevertheless, in this article, I assume that in the future and discuss Japan’s options. Accord- the TPP agreement will take effect upon Japan term “TPP agreement” to refer to both the original ingly, from this point of the article, I use the the original TPP agreement. TPP agreement and an agreement similar to anime series Green, and Cosplay 2015/07/27-1/manga-author-ken-akamatsu-renews-concerns-about-trade-deals-effect-on-doujin- shi-and-cosplay; into effect. Kantaiheiy ¯ Kansuru H ¯ of the Trans-Pacific Partnership], S 2017] agreement. the TPP with to comply obligation Japan’s by affected the For instance, \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 11 11-MAY-17 9:19 adopt a fair use exception to alleviate the potential negative effects to adopt a fair use exception to alleviate the creation of “parodies.” scope to exclude Japanese “parodies” like scope to exclude of piracy to include over time, expand the scope that courts would, the drafters of the to the original intention of parodies contrary of such “paro- possibility may deter the creation amendment. This Act expressly guar- even if the amended Copyright dies.” Moreover, parodies and anteed that legal author of the author of piracy, strengthened protection for the interests of secondary artists is protection for the interests piracy, strengthened the competing in- maintain proper balance between still necessary to secondary user, which will be tilted terests of the rights holder and the the TPP Agreement. Although the in favor of copyright holders by actual impact of “parody” and ment of the criminal copyright prosecution law, prosecution the criminal copyright ment of criminal complaint for alleged copyright infringement deemed as infringement alleged copyright complaint for criminal piracy. infringement with the Japanese police. with the Japanese infringement anime and manga industry is unknown, many Japanese people, even anime and manga industry is unknown, believe that the success of authors of original works, firmly progress of Japanese anime and has a positive contribution to the manga culture. C Y 38980-swt_23-2 Sheet No. 57 Side A 05/11/2017 09:52:06 A 05/11/2017 57 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 57 Side B 05/11/2017 09:52:06 . M K C Y Miya court NTELL [Vol. 23 is the under , I 71 75 see also .; Campbell Id Part III of this To determine 73 74 Some commentators ar- Some commentators NALYSIS 70 A SE U AIR , 510 U.S. at 577. U.S. F U.S. 76 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, See Japanese Copyright Law Reform: Introduction of the Mysterious Anglo- Japanese Copyright Law Reform: Introduction see also Campbell . at 577 (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)). Id , Part II.B. , Parts III. & IV. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW 17 U.S.C. § 107. The preamble lists criticism, comment, news reporting, teaching, However, implementing the U.S. fair use doctrine would be the U.S. fair use doctrine However, implementing . The fair dealing doctrine only applies to: (1) research and private study, (2) criticism, . The fair dealing doctrine only applies to: (1) VERVIEW OF THE 72 See supra Id See infra See Even without regard to the TPP agreement, Japan is still in need Japan is still the TPP agreement, regard to Even without Under Section 107 of the U.S. Copyright Act, certain uses of of the U.S. Copyright Act, Under Section 107 (1) including whether such the purpose and character of the use, is for nonprofit educational use is of a commercial nature or purposes; (2) the nature of the copyrighted work; (3) portion used in relation to the amount and substantiality of the the copyrighted work as a whole; and (4) market for or value of the effect of the use upon the potential the copyrighted work. . Q. 2014, 1, 40-70 (comparing the fair use doctrine of the U.S. with an E.U.-style approach . Q. 2014, 1, 40-70 (comparing the fair use doctrine 75. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994). The 76. 17 USC § 107; 70. 71. c. 48, §§ Copyright, Designs and Patents Act, 1988, 28-30 (Eng.). 72. 73. 74. ROP P review and news reporting, and (3) incidental inclusion of copyright material. review and news reporting, and (3) incidental is not scholarship, and research as examples of permitted purposes of secondary use, but fair use limited to these examples. 561 (1985). of states that “[t]he fair use doctrine thus ‘permits and requires courts to avoid rigid application law is the copyright statute when, on occasion, it would stifle the very creativity which that designed to foster.” Sudo & Simon Newman, Divine Intervention via Competition Law? American Fair Use Doctrine or an EU Style to copyright regulation in Japan). 408 III. O current Japa- because copyright protection exceptions to of broader the form of speech in not protect political law does nese copyright with Mad Amano. as was the case parody, \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 12 11-MAY-17 9:19 more appropriate than using the U.K’s fair dealing doctrine because than using the U.K’s fair dealing more appropriate serves the policy goal of copyright. the former better gue that adopting the United Kingdom’s fair dealing doctrine the United Kingdom’s fair dealing gue that adopting whether an unauthorized appropriation of a copyrighted work consti- whether an unauthorized appropriation case on a case-by-case basis tutes fair use, courts analyze each four statutory factors: better option due to both its similarity to U.S. fair use doctrine and to both its similarity to U.S. better option due categories of doctrine being limited to certain the scope of the works. use doctrine, and the current state of the U.S. fair article describes policy goal how Japan can achieve its copyright Part IV explains of a U.S.-modeled fair use exception. through adoption as fair use. copyrighted materials are permitted 38980-swt_23-2 Sheet No. 57 Side B 05/11/2017 09:52:06 B 05/11/2017 57 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 58 Side A 05/11/2017 09:52:06 78 409 Thus, 80 A secondary 88 Additionally, if 86 87 . 1105, 1111 (1990) (discuss- EV —i.e., secon- whether the . L. R 82 ARV Campbell v. Acuff-Rose Music Campbell v. Acuff-Rose , 103 H Although secondary works created Although secondary 83 it cannot be the sole determining factor it cannot be the sole determining 84 court has adopted Judge Leval’s definition of “transformative” court has adopted Judge Leval’s definition of , 471 U.S. at 562. Campbell ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING note 79, at 1110-11. note 79, at 1111. Toward a Fair Use Standard . art. I, § 8, cl. 8. , 510 U.S. at 584. , 510 U.S. at 578. supra First, the statute suggestively calls for inquiry into whether suggestively calls for inquiry into First, the statute ONST , supra 81 The following sections discuss each of the four factors and the four factors discuss each of sections The following at 585. at 584. at 579. The 77 Thus, commercialism is merely a single consideration within Thus, commercialism is merely Campbell Id. Id. Harper & Row Campbell Id. —to Arts.” Progress of Science and useful promote “the 85 The central inquiry under the first factor according to Judge The central inquiry under the The U.S. Supreme Court in The U.S. Supreme 79 80. U.S. C 82. 17 USC § 107(1). 83. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985). 84. 85. 86. 87. 88. Leval, 81. Leval 77. 78. 510 U.S. 569 (1994). 79. M K ing “transformativeness” and its significance to fair use analysis). ing “transformativeness” and its significance Leval, an influential figure in the development of the modern fair use Leval, an influential figure in the is “transformative.” doctrine, is whether the new work use. Pierre N. Leval, 2017] to- be weighed must all of them and are interrelated, factors These gether. under the first factor purpose of the assessment noted that the central of copyright the secondary use fulfills the objective is to see whether law \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 13 11-MAY-17 9:19 the secondary use is commercial in nature the secondary use bar a finding of fair use solely based the first factor, and courts cannot secondary work. on the commercial nature of the the courts’ analyses under these factors. analyses under the courts’ A. Use of the Secondary and Character The Purpose because whether the commercial nature of the secondary work affects because whether the commercial depends on the context of each the outcome of the fair use analysis case. relevant, courts may account for the propriety of the nature of the relevant, courts may account for weighs against a finding of fair use if secondary user’s conduct, which an immoral way. he acquired the original work in if the new work adds something work can be deemed transformative meaning, or message, rather than valuable through new expression, dary user intended to profit from exploitation of the original work to profit from exploitation dary user intended a licensing fee. without paying for commercial use (as opposed to noncommercial use) tend to weigh (as opposed to noncommercial for commercial use against a finding of fair use, courts are to assess the following sub-factors in light of the copyright the following sub-factors in courts are to assess objective. C Y 38980-swt_23-2 Sheet No. 58 Side A 05/11/2017 09:52:06 A 05/11/2017 58 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 58 Side B 05/11/2017 09:52:06 . M K EV C Y . J.L. [Vol. 23 L. R OLUM William W. Campbell If the sec- If the 89 , 31 C ORDHAM was not par- But cf. courts usually 93 , 77 F 91 , which retold the Court emphasized 1659, 1768-79. Accordingly, being . 95 EV from the black slaves’ This means that courts 96 . L. R note 89, at 1768-69 (analyzing “trans- note 79, at 1111. Campbell ARV supra Catcher in the Rye supra Unbundling Fair Uses , 101 H This is an important element be- an important element This is 90 Fisher, Leval, In contrast, the U.S. District Court for In contrast, the U.S. District Court took substantial portions of protected 94 The Wind Done Gone The Wind Done But cf. Although the see also Gone with the Wind 92 Pamela Samuelson, Transformativeness and the Derivative Work Right see also note 79, at 1111. , 510 U.S. at 581. , 510 U.S. at 579. , 510 U.S. at 579; supra at 583; SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW The Wind Done Gone Salinger v. Colting, 641 F. Supp. 2d 250, 256-68 (S.D.N.Y 2009). SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269-76 (11th Cir. 2001). Reconstructing the Fair Use Doctrine See See Campbell See id. Campbell Campbell 467, 485 (2008). What is notable about judicial analyses involving “transforma- about judicial analyses involving What is notable How courts determine whether the secondary work is transform- How courts determine whether the RTS 96. R. Anthony Reese, 95. 94. 91. 92. 93. 90. Leval, 89. & A 2537, 2550 (2009) (reiterating the presumption that parodies have an “obvious claim to 2537, 2550 (2009) (reiterating the presumption that parodies have an “obvious claim transformativeness”). formativeness” as a somewhat subjective, rather than static, element). formativeness” as a somewhat subjective, rather Fisher III, 410 work. of the original off free-riding or superseding merely work is trans- courts tend to presume the secondary tive” use is that a parody. formative if it is \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 14 11-MAY-17 9:19 the Southern District of New York found that an unauthorized novel the Southern District of New York that depicted a sequence of the novel work reserved for the original au- ody, but rather a kind of derivative use protection. thor, and thus not entitled to fair deemed as a parody in a legal sense would significantly increase the deemed as a parody in a legal sense to be protected as fair use. likelihood for secondary works courts typically focus on the ative varies by jurisdiction. However, user’s purpose in using the origi- transformativeness of the secondary content that has been added by the nal work, rather than the actual work. secondary user to create the secondary ondary work is transformative, this sub-factor weighs in favor of the weighs in this sub-factor is transformative, ondary work use adds that the secondary of the new value user because secondary to the original—exactly to protect intends the fair use doctrine what society.” enrichment of “for the needs to be analyzed transformative work, still that parody, a highly use, three factors to qualify for fair under the other the works fair use. Therefore, following find highly-parodic for the Eleventh Cir- the U.S. Court of Appeals Court’s instructions, novel titled cuit held that a story of the famous novel cause the more transformative the secondary work is, the less signifi- work is, the the secondary more transformative cause the such as commercialism, become. cant other factors, to fair use defense, despite the perspectives, was a parody and entitled fact that elements of the original work. 38980-swt_23-2 Sheet No. 58 Side B 05/11/2017 09:52:06 B 05/11/2017 58 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 59 Side A 05/11/2017 09:52:06 see 411 105 Cariou v. Under this ap- Under this 97 which is precisely 103 99 104 . L.J. 445 (2015). ECH . T A Critique of the Reasonable Observer: Why Fair Use OLO , 13 C ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING Shoshana Rosenthal, Thus, the reproduction of an entire concert poster in a of an entire concert poster Thus, the reproduction 98 However, this approach has received much criticism because However, this approach has received concluded that, in comparing the appropriationist-defen- concluded that, in comparing at 707-08. Cariou v. Prince, 714 F.3d 694, 706-08 (2d Cir. 2013) (implying that the content of Cariou v. Prince, 714 F.3d 694, 706-08 (2d Cir. . The Second Circuit has noted that although derivative works . The Second Circuit has noted that . Some courts went even further and conducted a side-by-side even further and conducted Some courts went 102 101 See generally Id. Id See 100 Additionally, the Second Circuit court’s analysis is particularly in- Additionally, the Second Circuit On the other hand, recent cases show that more and more courts recent cases show that more On the other hand, 97. 98. 1146, 1165 (9th Cir. 2007). Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 99. Ltd., 448 F.3d 605, 609 (2d Cir. 2006). Bill Graham Archives v. Dorling Kindersley Twin Peaks Prods. v. Publ’ns Int’l, Ltd., 996 F.2d 1366, 1376 (2d Cir. 1993). 103. 104. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). 105. Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 143 (2d Cir. 1998); 101. 714 F.3d 694 (2d Cir. 2013). 102. 100. M K Fails to Protect Appropriation Art also the secondary work is significant in determining transformativeness). it allows judges to act as art critics to an extent, it allows judges to act as art critics analysis, comparing aesthetic similarities between the plaintiff’s and aesthetic similarities between analysis, comparing the Second Circuit in defendant’s work. For example, Prince photographer plaintiff’s original pho- dant’s collage paintings with the works were transformative tographs side by side, the secondary “employ[ed] new aesthetics with because the defendant’s artworks distinct from” the plaintiff’s pho- creative and communicative results why their aesthetics are dif- tographs, without giving any explanation ferent. structive to transformativeness analysis involving parodic works or structive to transformativeness dojinshi “a new mode of presentation,” such transform an original work into that are not transformative. works take expression for purposes are focusing on the contents of the secondary work to determine if it is contents of the secondary work are focusing on the transformativeness, ascertain the secondary work’s transformative. To focusing on its pur- its contents, rather than these courts evaluate pose. 2017] if the secondary transformative are works that secondary to find tend purpose than different work for a completely the underlying user uses the original. she created author when of the original \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 15 11-MAY-17 9:19 biography of a musical group which hosted the concert, for instance, group which hosted the biography of a musical under this approach. would be transformative what Justice Holmes intended to prevent since the early development what Justice Holmes intended to analysis. of the Supreme Court’s copyright proach, courts may find transformativeness even though the secon- even though transformativeness courts may find proach, at all, as the original work the content of has not altered dary user of the origi- from that some degree different purpose is to long as the nal author. C Y 38980-swt_23-2 Sheet No. 59 Side A 05/11/2017 09:52:06 A 05/11/2017 59 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 59 Side B 05/11/2017 09:52:06 M K C Y note [Vol. 23 supra For this Creative 113 § 13.05[A][2][a] 110 is deemed trans- is deemed OPYRIGHT C dojinshi Publication of an original 112 IMMER ON note 110, § 13.05[A][2][b]). , N Therefore, this factor tends to This is especially true in cases in- supra , IMMER 111 116 N Conversely, if a work is transformative, if a work is Conversely, IMMER AVID 106 note 110, § 13.05[A][2][a] n.136.2. & N & D 114 supra the more creative the original work is, the more the more creative , IMMER IMMER 109 , 150 F.3d at 143. 108 IMMER , 510 U.S. at 586. The underlying principle of this factor is that not all principle of this factor is that not The underlying B. N Part III.A. , 510 U.S. at 586. —courts generally give little weight to this second factor 107 & N Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994); Leval, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 115 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW ELVILLE Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345-48 (1991). Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., at 551 (citing N IMMER Id. Id. Campbell See supra See Campbell See See Castle Rock See id; However, it is important to note that because the significance of However, it is important to note As copyright law accords greater protection to creative works accords greater protection to As copyright law The second fair use factor calls attention to the original work. use factor calls attention to the The second fair 112. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985). 113. 114. 111. 115. 116. N 110. 4 M 108. 109. 106. 107. (2015). 79, at 1122. works are equally protected by copyright; some works are more wor- protected by copyright; some works are equally use defenses less than others, thus rendering fair thy of protection likely to succeed. in their overall fair use analysis. this factor tends to be affected by the other factors—especiallythis factor tends to be affected the first factor than factual works, 412 must be works transformative Circuit, Second to the according Thus, derivative works. more than \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 16 11-MAY-17 9:19 it is not a derivative work. Accordingly, if Accordingly, a derivative work. it is not a derivative work. it will not be formative, B. Original Work The Nature of the the underlying courts will consider: (1) whether Under this factor, work is published or or factual and (2) whether the work is creative unpublished. weigh against a finding of fair use when the secondary use involves a weigh against a finding of fair use unpublished works receive creative or expressive work. Similarly, works. greater protection than published it should be protected against unauthorized copying. it should be protected against by the original author would work by a third party prior to publication right to decide when and whether seriously interfere with the author’s use cannot be called fair. to make the work public, so the reason, the fact that the original work is unpublished tends to negate reason, the fact that the original the defense of fair use. works are considered to be “closer to the core of intended copyright works are considered to be “closer protection” than factual works. 38980-swt_23-2 Sheet No. 59 Side B 05/11/2017 09:52:06 B 05/11/2017 59 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 60 Side A 05/11/2017 09:52:06 . at 413 127 id Courts 118 , 471 U.S. at 565). It is more difficult to 123 Perfect 10, Inc. v. Amazon Harper & Row The portion taken must be “no more The portion taken 119 117 Therefore, an extensive copying could qualify Therefore, an extensive copying , 471 U.S. at 565-66. 124 Furthermore, this factor may also be influenced Furthermore, this note 79, at 1123. note 79, at 1122. 122 ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING note 79, at 1123 (interpreting supra supra Part III.D. where the Ninth Circuit held that Google’s thumbnail where the Ninth Circuit held that , 510 U.S. at 588-89). Generally, the more transformative the secondary work, more transformative the secondary Generally, the supra 126 , Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013) (referencing Bill Graham Cariou v. Prince, 714 F.3d 694, 710 (2d 121 Leval, at 1123; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) (citing ; Leval, The extent of permissible copying varies depending on the copying varies depending The extent of permissible . at 1165-67. This notion is well illustrated in This notion is well illustrated in see infra Id. See Harper & Row Id See See Id. 120 Campbell 125 Courts seem to primarily focus on the degree of transformative- Courts seem to primarily focus The third factor asks whether the amount and substantiality of and substantiality the amount factor asks whether The third 123. 125. Leval, 124. 122. 126. 508 F.3d 1146 (9th Cir. 2007). 127. 121. 119. Enters., 471 U.S. 539, 564 (1985). Harper & Row Publishers, Inc. v. Nation 120. Grp., Inc., 150 F.3d 132, 144 (2d Cir. 1998) Castle Rock Entm’t, Inc. v. Carol Publ’g 117. U.S. 569, 586 (1994). Campbell v. Acuff-Rose Music, Inc., 510 118. M K 1110-11); Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006)). (citing analysis of the first factor: “the purpose and character” of the secon- factor: “the purpose and character” analysis of the first dary use. portion of the a taking of a large and substantial the more reasonable original becomes. images fell under fair use because it reproduction of Perfect 10’s full artistic expression to improve access was transformative; it altered the served the public’s interest, and to information on the internet, which images would supersede Per- the danger that Google’s reduced-size of the images was “incidental.” fect 10’s cell phone download use ness of the secondary work to determine how much of and when a ness of the secondary work to Some courts strictly apply this taking is reasonable in a given context. 2017] publicly copy invariably “almost parodies because parody volving expressive works.” known, C. Used of the Portion and Substantiality The Amount copying. is justified by the purpose for the the secondary use \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 17 11-MAY-17 9:19 by the analysis of the fourth factor, which considers the danger of ad- the fourth factor, which considers by the analysis of work. verse market impact on the original than necessary” to serve the legitimate purpose of the secondary to serve the legitimate purpose than necessary” work. of a work if there is danger of justify a taking of even a small portion market substitution. and no adverse market im- as fair use if there is strong justification pact. .com, Inc. look at both quantity and quality of the portion used in relation to the and quality of the portion used look at both quantity as a whole. copyrighted work C Y 38980-swt_23-2 Sheet No. 60 Side A 05/11/2017 09:52:06 A 05/11/2017 60 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 60 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 131 For exam- Harry Potter 128 the court con- the court 129 , According to the Court, 137 132 Court noted that to serve the parodic Court noted that Court held that the defendant’s copying Court held that the defendant’s Courts are to balance the substantiality of the Courts are to balance the substantiality Once enough has been taken to assure identifi- Once enough has been taken to Campbell 135 , 268 F.3d at 1273-74. 134 Campbell , 510 U.S. at 588-89. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Warner Bros. Entm’t, Inc. v. RDR Books, 575 F. Supp. 2d 513, 546-49 (S.D.N.Y. Warner Bros. Entm’t, Inc. v. RDR Books, at 548-49. at 546-49. Because the purpose of each of these books were very simi- of each of these books were Because the purpose Warner Bros. Entm’t Inc. v. RDR Books Bros. Entm’t Inc. Warner Thus, the Id. Id. See Campbell See SunTrust Bank Id. Id. See In summary, although copying cannot be excessive in relation In summary, although copying 130 133 On the other hand, courts generally employ a lenient standard for courts generally employ a lenient On the other hand, 136 131. 132. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 588 (1994). 133. 134. 135. SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1271 (11th Cir. 2001). 136. 137. 129. 575 F. Supp. 2d 513 (S.D.N.Y. 2008). 130. 128. 2008). to the purpose and character of the parody, fairly modest amounts of to the purpose and character of parodies. copying are generally allowed for lar, the court assumed that any borrowing for purposes more than re- that any borrowing for purposes lar, the court assumed author. facts was reserved for the original porting fictional this factor when a highly transformative work is involved, especially in a highly transformative work is involved, this factor when The cases of parody. to “conjure up” work, it must copy enough purpose of the secondary the original to make its target recognizable. 414 the secondary of of transformativeness degree the when standard to serve more than necessary copying that is low, finding any work is secondary user. against the purpose the transformative \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 18 11-MAY-17 9:19 cation, any further taking must specifically serve the parodic goal of cation, any further taking must the secondary work. copied, while also taking into ac- parodic purpose against the portion serving as a substitute for the origi- count any danger of the parody nal. ducted a detailed inquiry into whether the amount and value of the the amount and into whether detailed inquiry ducted a purpose the transformative in relation to was reasonable portion used original reference guide to the of creating a complete official companion creative expressions from the series that took book. features—thetaking the most distinctive or memorable “heart” of the original—does excessive if it is necessary for the not make the copying will know which work was paro- parodist to make sure the audience died. of the opening riff and the first line of the plaintiff’s song “Oh, Pretty of the opening riff and the first line —allegedly the “heart” of the song—wasWoman” necessary to create “conjures up” the original song in the parody because it most readily the listener’s mind. ple, in 38980-swt_23-2 Sheet No. 60 Side B 05/11/2017 09:52:06 B 05/11/2017 60 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 61 Side A 05/11/2017 09:52:06 415 , 150 F.3d Court’s however, 145 146 Castle Rock note 110, § 13.05[A][4]). Campbell supra , Some courts, especially 147 IMMER The main focus here is the focus here is The main Some courts have acknowl- 138 & N 144 Notably, the Second Circuit has 148 IMMER Courts must also consider whether “un- Courts must also Court noted that the protectable derivative Court noted that This inquiry is only as to the market in which This inquiry is only Furthermore, courts must take account of not Furthermore, courts 140 142 141 , 471 U.S. at 566. This is provided that copying to criticize the original This is provided , 510 U.S. at 591. , 510 U.S. at 591-93. ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING Campbell 139 , 510 U.S. at 578). , 510 U.S. at 590 (quoting N .; Cariou v. Prince, 714 F.3d 694, 704 (2d Cir. 2013) (quoting The (quoting Harper & Row Pub., Inc. v. Nation Enters., 471 U.S. 539, 568 (1985)). (quoting Harper & Row Pub., Inc. v. Nation . at 592. Campbell Id. Harper & Row Id See Campbell See id Id. See Campbell Campbell 143 Original Work Original The fourth factor is even more interrelated with the first factor The fourth factor is even more The last factor is “the effect of the use upon the potential market the potential of the use upon factor is “the effect The last 143. 144. 145. 146. Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 145 (2d Cir. 1998) 147. 148. 142. 138. 17 U.S.C. § 107(4). 139. 140. 17 U.S.C. § 107(preamble). 141. M K (quoting at 145). because the degree to which the secondary work is transformative af- because the degree to which the fects the likelihood of market substitution. 2017] D. the Value of the Work upon of the Secondary The Effect work.” of the copyrighted for or value \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 19 11-MAY-17 9:19 work, which would likely harm the market for the original, is a typical likely harm the market for the work, which would use. example of fair the secondary user conduct of the sort” by restricted and widespread the potential mar- substantially adverse impact on would result in “a ket” for the original. edged that this is the most important factor of all four; edged that this is the most important work is transformative, it is not a established that if the secondary only any potential harm to the original, but also of harm to the market harm to the original, but also of only any potential for derivative works. license others to de- would generally develop or the original author velop. danger of market substitution, not mere harm to the market for the harm to the market not mere market substitution, danger of original work. the Second Circuit, are of the opinion that if the secondary work is the Second Circuit, are of the opinion danger of market substitution be- transformative, there is no apparent cause it targets different markets. market does not include the market for criticism, including parody, market does not include the market original authors will license critical because of the unlikelihood that reviews or lampoons of their works. based on the other courts take a contrary stance, recognition that “[a]ll [factors] are to be explored, and the results recognition that “[a]ll [factors] purposes of copyright.” weighed together, in light of the C Y 38980-swt_23-2 Sheet No. 61 Side A 05/11/2017 09:52:06 A 05/11/2017 61 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 61 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 In doing and thus 151 154 AXIMIZE THE M the four fair use factors, which As the JCA aims for a note 49, at 11. court found this factor in this factor found court SE TO 153 supra U ., AIR Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Cariou F Folsom v. Marsh See note 59, at 84-85. hand, has Japan, on the other ” ANEA ET AL DOPT supra Thus, transformative works are generally works Thus, transformative , A ARODY EE 150 in order to achieve the goal of promoting in order to achieve the goal of “P & L 152 ), which deems that author’s rights extend to their creations as a HOULD HOW For example, the example, For S 149 17 U.S.C. § 107 (2012). . art. I, § 8, cl. 8. Part III.A. APAN , 714 F.3d at 706, 709. ONST J droit d’auteur see also SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW OW ROTECTION FOR See supra Cariou P Japan should introduce a fair use provision to promote its copy- a fair use provision to promote Japan should introduce Some people might argue that U.S. copyright law’s utilitarian Some people might argue that [t]he purpose of this Law is, by providing for the rights of authors and the rights neigh- [t]he purpose of this Law is, by providing for as performances, phonograms, broadcasts boring thereon with respect to works as well of the rights of authors, etc., having regard and wire diffusions, to secure the protection products, and thereby to contribute to to a just and fair exploitation of these cultural the development of culture. 151. JCA Article 1 provides its purpose as follows: 152. Judge Joseph Story first established in 153. U.S. C 154. The United States’ copyright theory is the utilitarian approach, which provides authors 149. 150. adopted the “author’s right” approach. G were encoded into the current Copyright Act. were encoded into the current Copyright Act. Mass. 1841); Japanese Copyright Law, art. 1. with financial incentives through copyright to create new works that serve a larger end for the with financial incentives through copyright to create new works that serve a larger end of “au- public good, whereas continental European countries’ approach is based on the tradition thor’s right” ( matter of natural right. C right goal: “to contribute to the development of culture.” to the development of right goal: “to contribute 416 work. derivative \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 20 11-MAY-17 9:19 “the Progress of Science and Useful Arts.” “the Progress of Science and Useful similar goal, adopting the four factors of the U.S. fair use doctrine similar goal, adopting the four its copyright goal. would benefit Japan in achieving right” approach, goal is different from Japan’s “author’s favor of the appropriationist who transformed the plaintiff’s black and the plaintiff’s who transformed the appropriationist favor of and beauty of Rastafarians the “natural depicting white photographs color col- and provocative” into “hectic environs” their surrounding towards en- were marketed because they placed on canvas lage works audiences. tirely different found to pose little risk of market substitution for the original and its risk of market substitution for found to pose little likely find this fac- and the Second Circuit will most derivative works, secondary work is the secondary user when the tor in favor of transformative. IV. H so, Japan should adopt the four statutory factors stipulated in the so, Japan should adopt the four permitted uses under the U.S. fair use ACA to capture the spirit of the these four factors over the cen- doctrine. U.S. courts have developed incentives to create works and the turies to balance authors’ economic expressions upon which they can public’s interest in accessing existing expand new creations 38980-swt_23-2 Sheet No. 61 Side B 05/11/2017 09:52:06 B 05/11/2017 61 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 62 Side A 05/11/2017 09:52:06 417 158 does 156 Moreover, As the fair 159 162 Therefore, the JCA Therefore, the 160 However, the fact that U.S. copy- the fact that U.S. However, the secondary work must be suffi- which clearly distinguishes between distinguishes which clearly . 155 Id 163 157 note 49, at 11-12. supra ., note 79, at 1109, 1136. and an adoption of a U.S.-modeled fair use excep- and an adoption ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING 161 supra Part II.B. .; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, n.10 (1994). . at 1111. ANEA ET AL G Leval, . at 12. authors’ moral rights and economic In contrast, the monistic approach links Japanese Copyright Law, art. 1. See id See id See Id. See supra Id See See into the First Prong of the Fair Use Factors. into the First Prong of the Fair Use Although each of the four factors of the U.S. fair use doctrine Although each of the four factors be made to the U.S. fair use doc- One key adjustment that should 163. 162. 161. 160. By placing the word “thereby” preceding the phrase “to contribute to the development 158. 159. 157. 155. Japanese Copyright Law, art. 1. 156. M K of culture,” JCA suggests that contribution to “the development of culture” is its ultimate pur- of culture,” JCA suggests that contribution to “the development of culture” is its ultimate pose. rights to a non-separable bundle of rights. 2017] protec- the “to secure be enough not would use doctrine fair the U.S. rights of the authors.” tion of the would not sig- level of economic rights protection Thus, changing the as previously dis- moral rights protection. In fact, nificantly affect strong. rights protection is already cussed, Japan’s moral \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 21 11-MAY-17 9:19 ciently transformative so that it can be considered as a new creation, ciently transformative so that it economic rights on the one hand, and moral rights on the other. on the one hand, and moral rights economic rights goal. that the JCA can achieve that tion will help ensure adjustments need to be made in should be adopted by Japan, minor within Japanese copyright law.order to make them work effectively I described in the subsequent propose the following three adjustments sections. A. Use” as a Sub-Factor Japan Should Incorporate “Transformative use” as a sub-factor under the trine is to incorporate “transformative of the secondary work first factor, because the transformativeness in fair use analysis. should be the central consideration has an objective similar to that of the ACA, which is benefitting soci- similar to that of the ACA, which has an objective ety as a whole, right law does not protect the “author’s rights” or moral rights or moral the “author’s rights” does not protect right law the language of JCA Article 1 clearly suggests that “the development JCA Article 1 clearly suggests that the language of of the rights of ultimate end and “the protection of culture” is the a means to achieve that end. authors, etc.” is use exception aims to promote new creations that benefit the ad- use exception aims to promote vancement of arts and culture, not mean that adopting a U.S.-modeled fair use exception into the fair use exception a U.S.-modeled that adopting not mean Japan has protection. First, moral rights jeopardize Japan’s JCA would the dualistic approach, adopted C Y 38980-swt_23-2 Sheet No. 62 Side A 05/11/2017 09:52:06 A 05/11/2017 62 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 62 Side B 05/11/2017 09:52:06 M K 164 C Y [Vol. 23 There- 168 Furthermore, the 167 On the other hand, when 170 the proposed fair use exception should re- should fair use exception the proposed 166 are also relevant to the first factor. However, con- first factor. However, relevant to the are also —will constitute infringement on his or her integrity 165 Part III.C. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW art. 20. Japanese Copyright Law, arts. 20, 28. Thus, a creation of a derivative work based on a pre-existing Thus, a creation of a derivative dojinshi . at 592. Id. See supra See Id 169 Most importantly, the new fair use exception should codify the the new fair use exception should Most importantly, Moreover, this distinction between transformative works and de- Moreover, this distinction between the First Prong of the Fair Use Factors. the First Prong of 170. 168. 169. 164. Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4901). 165. 17 U.S.C. § 107(1). 166. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 167. work without the original author’s permission—whichwork without the original author’s is often the case of 418 work. original the that “supersede[s]” work derivative a not merely element that is the only transformativeness not mean that This does such as other elements under the first factor; be considered needs to commercialism \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 22 11-MAY-17 9:19 flect the importance of the transformative use. Therefore, Japan of the transformative use. flect the importance under the first transformative use as a sub-factor should stipulate factor. B. Use” in the Definition of “Transformative Japan Should Codify This codification is use in its provision. definition of “transformative” works from deriva- it distinguishes transformative important because in Part III.D., the line-drawing be- tive works. As already discussed mere derivative works affects the tween transformative works and market substitution includes potential fourth factor because the risk of that the original authors “would harm to the derivative work market to develop.” in general develop or license others right if the creation constitutes a “distortion, mutilation, or other right if the creation constitutes will. modification” against the author’s the original author’s right of the secondary work is transformative, sidering that the degree of the transformative use affects the weights use affects of the transformative that the degree sidering other factors, given to degree of transformativeness of the secondary work would also affect degree of transformativeness of of permitted copying. the reasonable amount and quality fore, defining “transformative” use within the proposed fair use provi- fore, defining “transformative” use analysis of other fair use factors. sion would substantially affect the for Japan because of its strong rivative works is particularly important the author’s right of integrity. protection of moral rights, especially a derivative work of the original, When the secondary work is merely integrity extends to the derivative the original author’s right of work. 38980-swt_23-2 Sheet No. 62 Side B 05/11/2017 09:52:06 B 05/11/2017 62 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 63 Side A 05/11/2017 09:52:06 419 to dojinshi typically are Under this defi- 174 Dojinshi . dojinshi because Japanese courts have indicated Japanese courts because to the copyrighted work, and which also to the copyrighted work, and which creator. Thus, it is critical for creator. Thus, it 173 note 49, at 57. supra dojinshi dojinshi ., ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING Part II.B. Part II.A. However, it is not a “transformative” work under the However, it is not a “transformative” most likely infringes upon the original author’s right of the original infringes upon most likely Therefore, if the proposed fair use exception properly de- fair use exception if the proposed Therefore, ANEA ET AL 175 G which would lead to the second and fourth factors being to the second and fourth factors which would lead 171 as transformative works, which qualify them as fair use, as- as transformative works, which 172 Id. See supra See supra See dojinshi Taking account of this concern, Japan should adopt the definition Taking account of this concern, Japan Importantly, the proposed definition could cover parodies and Importantly, the proposed definition For these reasons, the definition of a transformative work should the definition of a transformative For these reasons, 175. 171. 172. 173. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 174. M K unauthorized derivative works for sale that exploit expressive works for sale that unauthorized derivative works, the weighed against movie’s purpose is not transforma- proposed definition because the tive—contrarily, the elements of the original its purpose is to re-cast such a way that it accurately repre- novel through different media in novel. Nor does the movie add new sents the world of the original novel; it merely traces the original meaning or message to the original media. As demonstrated, the pro- meaning or message in a different transformative works from posed definition effectively distinguishes derivative works. dojinshi copy- suming that they do not “supersede” the original works and the fines a “transformative” use, it could also resolve the issue associated resolve the issue use, it could also fines a “transformative” right of integrity strong protection for the author’s with the JCA’s its moral rights provisions. without amending works to ensure works from derivative differentiate transformative “parodies” including the protection of 2017] because work the transformative to not extend does arguably integrity a signifi- would have work. This distinction the author’s it is no longer for cant implication \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 23 11-MAY-17 9:19 be deemed as a transformative work to escape infringement liability. transformative work to escape infringement be deemed as a work that adds a “new mean- of a transformative work as a secondary ing, message, or purpose” falls outside the scope of derivative works. Under current Japanese falls outside the scope of derivative that has adopted pre-existing ma- law, a derivative work is a creation creative elements. terial and includes newly-added that integrity. nition, a movie based on a novel is a derivative work because it is an nition, a movie based on a novel with new creations such as the actors’ adaptation of the original novel of the novel’s “sentiments and performances, music, and depictions thoughts.” C Y 38980-swt_23-2 Sheet No. 63 Side A 05/11/2017 09:52:06 A 05/11/2017 63 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 63 Side B 05/11/2017 09:52:06 M K 177 C Y will [Vol. 23 dojinshi dojinshi . Court’s reasonable Id Campbell Other types of Other types 178 and (2) whether that meaning, 179 Under this assumption, legal parodies most likely most parodies legal this assumption, Under 176 that uses original characters to depict the original to depict original characters that uses , 510 U.S. at 581-83. Parts III.C. & D. , 510 U.S. at 582. This approach parallels the This will prevent Japanese courts from playing the role of This will prevent Japanese courts SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW 180 dojinshi SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269-71 (11th Cir. 2001). Campbell See supra See Campbell See In addition, the provision concerning the transformative use In addition, the provision concerning Evaluating the Artistic Worth of the Secondary Work. Evaluating the Artistic Worth of 179. 180. Japanese Copyright Law, art. 1. 176. 177. 178. observer approach to determine whether the secondary work is a parody. an art critic to subjectively determine whether the new work is artisti- an art critic to subjectively determine Under this instruction, courts are to cally different from the original. alleged legitimate purpose can be objectively determine whether the evidence, including the sec- reasonably perceived from circumstantial not to focus on the value of the new ondary work itself. Courts ought users to determine whether the new elements added by the secondary prevent courts from conducting a work is transformative. This would creations, which requires expertise side-by-side comparison of the two in order to fairly determine whether in the subject matter of the works of significance or value. These the secondary work adds something with the proposed instruction, aforementioned adjustments, coupled effectively assist Japanese courts in objectively determining whether 420 reasonable. ing is Thus, a \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 24 11-MAY-17 9:19 qualify as fair use because they use the original work for a new pur- original work for they use the fair use because qualify as original. comment on the to criticize or message, namely pose and story from a new perspective, offering a new interpretation of the a new interpretation offering a new perspective, story from as parody. work, could be protected original message, or purpose will help “to contribute to the development of message, or purpose will help “to culture.” could qualify as transformative works if, for example, they depict the transformative works if, for example, could qualify as a different genre in a new storyline that falls under original characters and meaning original. It arguably adds new message from that of the exchanges be- it draws interactions and emotional to the original as perspectives. Moreo- placed in new settings and tween the characters work because as an to “supersede” the original ver, it is unlikely for the original it would unlikely act as a substitute entirely new work, and works. Thus, qualifying “parodies” or its derivative likely be protected under this proposed definition. likely be protected C. Explicitly Prohibit Judges from The Fair Use Provision Should courts should only determine (1) should explicitly state that Japanese or purpose can be reasonably per- whether a new meaning, message, ceived from circumstantial evidence 38980-swt_23-2 Sheet No. 63 Side B 05/11/2017 09:52:06 B 05/11/2017 63 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 64 Side A 05/11/2017 09:52:06 421 The 185 Excessive that contrib- 184 (Nov. 11, 2008), http:// Y ’ OL because “parodies” dojinshi P 183 but also could ultimately but also could OREIGN 182 , F Japan’s Gross National Cool ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING Part II.A. Part II. Part I. ONCLUSION See supra See supra See supra which could create a chilling effect on all creations of secondary a chilling effect on all creations which could create Japan needs to adopt a U.S.-modeled fair use exception to miti- use exception U.S.-modeled fair to adopt a Japan needs As evidenced in Japan’s cultural history, free flow of information As evidenced in Japan’s cultural 181 184. 185. 181. 182. Japanese Copyright Law, art. 1. 183. Douglas McGray, M K foreignpolicy.com/2009/11/11/japans-gross-national-cool/. works. This stunted growth of new creations would not only under- growth of new creations would works. This stunted of culture,” mine Japan’s “development 2017] to contributes use that fair a legitimate issue is use at the secondary of culture.” the “development V. C would likely be cre- chilling effect on “parodies” that gate the possible Agreement. Japan’s compliance with the TPP ated through Japan’s of its copyright pro- agreement will tilt the balance entrance into the and copyright own- the overprotection of authors tection towards ers, \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 25 11-MAY-17 9:19 affect Japan’s so-called “gross national cool” affect Japan’s so-called power. pillars of Japan’s soft are one of the important protection for copyright owners’ exclusive rights must be avoided be- owners’ exclusive rights protection for copyright law. We must always remember cause that is not the goal of copyright copyright law is to promote that the ultimate objective of Japanese must also remember that all new “the development of culture.” We materials, whether they are unpro- creations are based on pre-existing Thus, we need to ensure that tected ideas or protectable expressions. creators upon which they can enough materials are left for future build new creations. creativity, resulting in active cre- enhances artists’ inspiration and Japan’s copyright objective. ations that are essential to achieve fair use exception proposed in this article will properly strike the bal- fair use exception proposed in this rights of copyright owners and the ance of protection between the rich in arts and culture. This will public interest in having a society “parodies” and necessarily protect the deserving culture.” ute to Japan’s “development of C Y 38980-swt_23-2 Sheet No. 64 Side A 05/11/2017 09:52:06 A 05/11/2017 64 Side Sheet No. 38980-swt_23-2