Debate and Discussion

Fan art: legit or copyright infringement?
jalford at 1:02PM, Jan. 29, 2006
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Saw this statement on Anime News Network

“Otakon has announced via their forum (registration required) that the sale of fan art based on properties that the artist does not own the copyright for or have a license to produce will not be permitted at the Otakon artists' alley this year.

The full text of the statement reads:

Otakon's Artists Alley will be actively disallowing the sale of unlicensed copyrighted materials. If you own it, you can sell it. If you have license to it, you can sell it. But if it has material (images, sounds, etc.), in whole or in part, to which you DO NOT have permission to sell, then that material will not be allowed in the Artists Alley. Anyone found in violation of this rule loses their retail space in Artists Alley for the remainder of the convention. (The above statement will be officially/legally worded and posted on the site during February, after our lawyer and Otakorp President have approved it.)

5b. Policy for the DISPLAY of unlicensed copyrighted material - provided it is NOT FOR SALE - is currently under review.

Works of parody, for which the U.S. legal code permits fair use exemptions to copyright, may be permitted. These will be reviewed on a case by case basis.”

So do you think fan art(this isn't fan comics!)should be sanctioned at American anime/comic cons, or have to be put through this kind of scrutiny?
last edited on July 14, 2011 1:06PM
T_K at 1:18PM, Jan. 29, 2006
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selling fanart shouldnt be legal I think but drawing it and not selling it no sweat.
last edited on July 14, 2011 4:36PM
ccs1989 at 1:28PM, Jan. 29, 2006
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Wow. Way to go Otakon. They just made a bunch of unhappy artists.
http://ccs1989.deviantart.com

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last edited on July 14, 2011 11:37AM
ozoneocean at 2:37PM, Jan. 29, 2006
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It's fair enough, they probably just don't want to get into trouble. What if some grumpy bastard tried to sue? That'd mean no Con for anyone, with the legal fees… Some of the copyright owners are real big fish.
Plus, it could encourage the production and sale of more original work by eager young artists eh?
 
last edited on July 14, 2011 2:23PM
skoolmunkee at 2:52PM, Jan. 29, 2006
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As long as you aren't somehow making money off of it, it's considered a parody, and acceptable by most copyright laws.
  IT'S OLD BATMAN
last edited on July 14, 2011 3:38PM
ozoneocean at 3:23PM, Jan. 29, 2006
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skoolmunkee
As long as you aren't somehow making money off of it, it's considered a parody, and acceptable by most copyright laws.
That's true (to a point), but their rules seem to cover that (although it's “under review”). The issue just seems to be with the actual selling of fan art at the moment.
-But only parody is considered parody. ^_^
 
last edited on July 14, 2011 2:23PM
isukun at 5:06PM, Jan. 29, 2006
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Generally the issue of money is irrelevant when talking about parody. It is a misconception most people have about parody laws that materials depicting parody can't be sold. There are many people who sell parody works and are protected under parody laws. The issue is what motivates the sale. Does the parody piece stand on it's own, or is it selling through the value of the property it is representing. Unfortunately for the artists at Otakon, fan art most definitely sells because of the licensed content. Anime distributors in the US have become increasingly anal about these things lately, so it's in otakorp's best interest to not allow it.

.: isukun :.
last edited on July 14, 2011 1:03PM
Hawk at 6:59PM, Jan. 29, 2006
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I read an interesting article about fanart, fanfics, and stuff on 1up.com several months back. Among the things it talked about, there was a story about a very prominent fan artist that I can't remember the name of. This guy was really good at drawing Megaman and often posted his art on the internet. Well, one day he was in a store looking at Megaman merchandise. He looked at a sheet of Megaman stickers and noticed that one of the stickers was actually his art! This product was actually sactioned by Capcom, too. The thing was, we couldn't do anything about it. Capcom nor the sticker manufacturer owed him anything because they owned the rights to Megaman.

To my knowlege it has always been illegal to sell self-made merchandise based on somebody else's intellectual property (barring parody exceptions). That's why my friend couldn't sell Harry Potter bookmarks she made. That's why so many videogame sprite comic authors can never make a dime off their comics. I think this law has been blurred in peoples' minds for two reasons:

- People sometimes get away with these sales because they're not prominent enough to be worth suing.
- Japanese law allows for legal sale of copyrighted characters through doujinshi and some other methods. Anime fan artists may be confused and feel that they fall under protection of these Japanese laws.

Whatever the case, I wouldn't be too upset about this since I never go to that con and I never sell art at cons anyway. I guess some artists will have to flex their brains a little to create and sell original art… though it's nearly a guarantee that less art will be sold. People usually buy art of their favorite characters, don't they?
last edited on July 14, 2011 12:45PM
Aurora Moon at 7:47PM, Jan. 29, 2006
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I believe it can be legit, up to a point.

I mean, like for example if you wanted to sell harry potter bookmarks using your own original artwork on it for only like 90 cents, that's not going to hurt the companies out there and or Rowling, is it?

This reminds me of a while back when this one site used to sell custom keychains, only of your own made-up Fan-made Sailor Senshi.
It just so happened, that I was an Fan of the Sailor Moon series and were waiting until my paycheck so that I could have one made of my own fan made character, Sailor Aurora (basically just me in a Sailor Suit.. not very creative, but still..).
But when I went to get the key chain made on the site by showing them one of my favorite fan art that one of my friends had made me, I was told that they could no longer make it.

Mainly because somebody got upset that they were selling key chains of characters loosely based on the Sailor Moon series, even though they were clearly not part of the Universe expect in FANDOM.
This person actually thought that them profiting off the key chain sale by a mere one dollar per person would actually HURT the Sailor Moon creator and the companies who makes Sailor Moon stuff. Even though those Sailor characters have never actually appeared in the Anime or Manga, only in Fanart and Fanfictions.

I mean, how can one person “steal” away money from an company who has MILLIONS of toys and things sold everyday and have made more than a couple millions of dollars, by just selling key chains for one dollar per person?


When you think about it, it's kinda ridiculous. that's why the Japanese tolerate doushijji, for Pete's sake.
Because the official companies who owns all the popular stuff, will always make more money than the avenge Joe who makes fan art or fan-made objects of the said popular item.

for example, one person who happened to have a very extremely well-drawn manga of the Sailor Senshi doing dirty things, and happened to sell prints of that… it would most likely only cater to a small percent of the population, and it's not going to affect the sales of the official manga or the anime series.
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last edited on July 14, 2011 11:09AM
isukun at 8:24PM, Jan. 29, 2006
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though it's nearly a guarantee that less art will be sold. People usually buy art of their favorite characters, don't they?

Yes and no. Less art may be sold at the con, but many artists may be mor forward with their contact info. If they can still put up their fan art for display, they may be able to sell it outside of the convention getting around the new rules.

Also, something like this could be better for the art gallery. Although not necessarily a problem at Otakon where the hanging fee is pretty steep, at many cons, you'll get a lot of amateur artists trying to sell off their work by using recognizable characters. Quite often, the quality can be very poor, but the work will sell because it's original work of a character fans obsess over. I've seen original works in friends' houses that were truely wretched, yet they still bought them and hang them proudly. People are less likely to buy work that isn't recognizable, unless the quality of the work is fairly high. So this could discourage the less talented artists from wasting space in con art galleries.

I mean, like for example if you wanted to sell harry potter bookmarks using your own original artwork on it for only like 90 cents, that's not going to hurt the companies out there and or Rowling, is it?

Actually it is pretty harmful. Allowing people to make minor sales like that sets a bad example in the fan community. One 90 cent bookmark could encourage others to do the same. Before you know it, that one sale has brought about thousands of fans making similar goods and selling them illegally and it becomes much harder for the person who actually has the legal rights to the franchise to curb illegal sales.

Japanese law allows for legal sale of copyrighted characters through doujinshi and some other methods.

Technically, Japanese law doesn't allow for the legal sale of any copyrighted material. Publishers have and still do successfully stop doujin circles from publishing their manga in Japan (Nintendo being a major offender). It is just such a well established subculture that most companies are willing to overlook doujin as free advertising and a source for new talent.

.: isukun :.
last edited on July 14, 2011 1:03PM
jalford at 1:18AM, Jan. 30, 2006
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You'd think that the whole point of setting up a table at a con as huge and costly as Otakon would be so you COULD make a profit.

I mean let's talk numbers here. Airfare to Baltimore, average in at least $125 a night at a hotel, registration, artist alley table fees, and other general living and transportation expenses, we're talking well over $500.00. HELLS YEAH, it's about making a profit after all that!

Now, I'm not sure how they differ between selling original fan art, prints of fan art at the aritist alley, doing commissions there and what not. Then, there's the actual selling of either original art or prints for the con's art show/art auction, of which the con does make a profit from too.

Con's try to pull stuff like this all the time. Like the anime music videos(or “AMVs”). That's a good portion of the con's bread & butter, but the whole thing is basically a copyright infringement. Sure, the AMV creators aren't selling bootleg DVDs of their work at tables in the dealer's room(or at least they shouldn't), but the con profits from that event just as mush as they do from the cosplay contest, and at least the cosplayers usually get some kind of prize for their troubles. AMV guys get only a fraction of that kind of gratitude from the con, if anything.

Plus, there's always dealers at American cons selling Japanese dojinshi(or “fan comics”). These are comics based on already existing copyrighted characters, either from anime, manga, video games, movies, and whatnot. You don't see those dealers getting taken to court in America from guys like Funimation for selling Fullmetal Alchemist yaoi comics.

To not allow fan art at the cons basically goes against the concept of actually having an artist alley in the first place. Most of the material are crew does is all original work, but still alot of the stuff the actual artists try to sell at cons is fan art. Why? Because that's the only stuff the average doesn't-know-any-better-about-anything-they-haven't-already-seen-before congoer can identify with before they even bother to look at any of the original material the artist might have with them either for sale or display. They need fan art in order to get them interested in the artist's style. That way, the artist might have some slim chance of working in some of their original work too(God forbid!).
last edited on July 14, 2011 1:06PM
LostPriestess at 2:03AM, Jan. 30, 2006
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Otakon may have made a lot of artists unhappy, but in the end, they probably did the smart thing. LIke it or not, fan art is a violation of copyright laws, there reall isn't any way arround that. Someone's intelectual property is being used without their concent. Fan art isn't something that is commonly prosecuted ( I can't think of a single case off the top of my head, thoug I"m sure something exists)

However, the potential exists for Otakon as well as the individual artists to find themselvs in a good deal of legal trouble if some irate creator ever decided to go after them. Yes, people are going to be unhapppy, but it will likley end up proving to be a wise move for Otakon in the end. Having a huge galery dedicated to copyright violation always seemed like asking for trouble to me.
last edited on July 14, 2011 1:45PM
ozoneocean at 3:39AM, Jan. 30, 2006
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jalford
To not allow fan art at the cons basically goes against the concept of actually having an artist alley in the first place. Most of the material are crew does is all original work, but still alot of the stuff the actual artists try to sell at cons is fan art. Why? Because that's the only stuff the average doesn't-know-any-better-about-anything-they-haven't-already-seen-before congoer can identify with before they even bother to look at any of the original material the artist might have with them either for sale or display. They need fan art in order to get them interested in the artist's style. That way, the artist might have some slim chance of working in some of their original work too(God forbid!).
Ok, I don't see the problem here… From the original thing you posted it seems that all they're disallowing is the sale of fanart. Those artists who use fan art to gather in the punters to get them interested in and buy their original art are still allowed to display the fan-art they've made, they're just not allowed to sell it.

As I said before, it's a small thing when you consider the idea of not having a con at all… Because that's what can happen if they get into legal troubles with the big publishers! People are much more litigious at the moment.
As for doshinji and anything like that, I’m sure they’ll work something out if they go over it intelligently.
 
last edited on July 14, 2011 2:23PM
jalford at 3:47AM, Jan. 30, 2006
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This is an anime con staff we're talking about. Intelligence isn't even along for the ride!
last edited on July 14, 2011 1:06PM
ozoneocean at 4:27AM, Jan. 30, 2006
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jalford
This is an anime con staff we're talking about. Intelligence isn't even along for the ride!
And that's a big problem then…
The initial ruling up there isn't so bad, but just like all laws and rules: it's about intelligent and considerate application.
If the guys enforcing the rules are morons, it’s doomed to fail.
 
last edited on July 14, 2011 2:23PM
isukun at 9:50AM, Jan. 30, 2006
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This is an anime con staff we're talking about. Intelligence isn't even along for the ride!

Actually, decisions of this sort are rarely voluntary. The staff is usually pressured into it by some company. In this particular case, some companies like ADV and Bandai have been pressuring cons to limit the sale of fan art due to articles like homemade T-shirts making their way into the art galleries. Bootleg merchandise is becoming more common in anime shops around here and most of it got its start at cons.

As for the doujin, that's a totally different matter. Doujin doesn't present a conflict of interests for most distributors. In fact, it often increases interest in a series or movie bringing in more sales. Besides the fact that suing a doujin circle in Japan is a bit more difficult than suing a local artist, litigation against copyright violations are usually over some sort of loss. A company can only get restitution if they can claim damages. While they could conceivably do this, it probably isn't worth the time or money in this case. Copyright has to be enforced by the copyright holder, so they can pick and choose which violations are worth their time and money in court.

.: isukun :.
last edited on July 14, 2011 1:03PM
Aurora Moon at 10:55AM, Jan. 30, 2006
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isukun
Actually it is pretty harmful. Allowing people to make minor sales like that sets a bad example in the fan community. One 90 cent bookmark could encourage others to do the same. Before you know it, that one sale has brought about thousands of fans making similar goods and selling them illegally and it becomes much harder for the person who actually has the legal rights to the franchise to curb illegal sales.

I suppose. although in my experience, some fan-made goods sometimes doesn't live up to the durability that the official goods offers.. which is the reason why some of those are often so cheap. So with that reasoning, most people would want the offical goods over the homemade stuff, and only the cheapsakes would go for the homemade stuff.

and I was thinking of people being requested to make bookmarks out of original fan-made Harry potter characters, rather than images of Harry potter or the other original crew themselves.

After all, if people made their own characters that just happened to live in a certain universe made by an famous company or author, and wanted to pay somebody out there to make bookmarks/whatever out of their original characters, that wouldn't be so bad would it?

Like I doubt that my Sailor Aurora key chain that I wanted, could actually affect the sale of Sailor Moon Items because Sailor Aurora is just my own Fan made character.
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last edited on July 14, 2011 11:09AM
jalford at 3:11PM, Jan. 30, 2006
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You'd think that anime distributors in America wouldn't be so sensitive about this. One thing is that fan art is indirectly giving them free advertising for their anime or manga that they sell. Another is that it helps further the levels of fandom concerning their target audience.

Funny how only the American anime companies are throwing up arms over this. I mean, we've all been to a comic or sci-fi con and seen guys in the artist alleys there selling fan art pics of Spiderman, Harry Potter, or Lord Of The Rings dudes. You don't hear to much about New Line Cinema or Marvel coming down on those guys for doing the exact same thing that anime con fan artists do.
last edited on July 14, 2011 1:06PM
Hawk at 7:55PM, Jan. 30, 2006
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jalford
Funny how only the American anime companies are throwing up arms over this. I mean, we've all been to a comic or sci-fi con and seen guys in the artist alleys there selling fan art pics of Spiderman, Harry Potter, or Lord Of The Rings dudes. You don't hear to much about New Line Cinema or Marvel coming down on those guys for doing the exact same thing that anime con fan artists do.

I think it's because for the most part it's not worth it. If they tried, they ‘d be chasing down thousands of people.

I assume the reason any company (American, anime, or otherwise) takes full advantage of the rules is because if they didn’t have specific rules, then a person could make a great picture of Ninja Turtles, then mass produce it and sell it on posters, and stand to make quite a profit. Why would people buy REAL Ninja Turtles swag? This guy's art is just as good and he sells it cheaper.

But I agree that most of this con stuff is pretty harmless. In fact, it does technically stand as good advertising (at least if the person's a half reasonable artist).

isukun
Actually, decisions of this sort are rarely voluntary. The staff is usually pressured into it by some company. In this particular case, some companies like ADV and Bandai have been pressuring cons to limit the sale of fan art due to articles like homemade T-shirts making their way into the art galleries. Bootleg merchandise is becoming more common in anime shops around here and most of it got its start at cons.

So you're saying that this specifc con's decision isn't an isolated ocurrence?

I can understand them not wanting bootleg shirts to be sold.

isukun
Yes and no. Less art may be sold at the con, but many artists may be mor forward with their contact info. If they can still put up their fan art for display, they may be able to sell it outside of the convention getting around the new rules.

THAT's pretty clever. No rules against POSTING fan art, right?
last edited on July 14, 2011 12:45PM
ozoneocean at 7:59PM, Jan. 30, 2006
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I can understand very well why American Anime compaines would be making a big stink about this: They've bought someone else's creative work and now they're pimping it in the states. They've probably had very minimal input into it, maybe some minor promotion and translation work of a product that's already had a fanbase developed for it by enthusiastic fans.

They simply want to take over exclusive ownership and make as much money out of their ‘investment’ that they can. They consider any other usage of it to be infringing on their turf.
 
last edited on July 14, 2011 2:23PM
isukun at 6:46AM, Jan. 31, 2006
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I suppose. although in my experience, some fan-made goods sometimes doesn't live up to the durability that the official goods offers.. which is the reason why some of those are often so cheap. So with that reasoning, most people would want the offical goods over the homemade stuff, and only the cheapsakes would go for the homemade stuff.

That really depends. Most companies only focus on certain aspects of a franchise. They may release bookmarks with a title character and ignore the rest. Fan made goods tend to be more broad and cater to what the fans want to see.

As for selling images of original characters, I haven't seen any court cases reguarding that. You often see a lot of products sold in this country of characters who are slightly modified versions of established franchise characters with different names.

One thing is that fan art is indirectly giving them free advertising for their anime or manga that they sell.

It's not necessarily the fan art that is the offending factor. Art galleries at cons often host a number of craft works, too. Like I mentioned before, T-shirts are often among them. You can also often find other anime based products which may directly compete with the sales of the distributor. Distributors often have goods like plush dolls, posters, T-shirts, and other things which they will sell in the dealer's room. To find similar goods in the artist gallery undermines their sales. Rather than chase after the individual artists, it's easier to just push the con into restricting these things. Besides, artists don't have to sell their work for it to be free advertising. Most people don't check out the art gallery to buy artwork.

.: isukun :.
last edited on July 14, 2011 1:03PM
kyupol at 7:02AM, Jan. 31, 2006
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if fanart is a crime (copyright infringement), everyone who draws comic book or cartoon characters at the back of their notebooks should be arrested and/or fined.
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last edited on July 14, 2011 1:24PM
LostPriestess at 7:13AM, Jan. 31, 2006
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kYuPoL
if fanart is a crime (copyright infringement), everyone who draws comic book or cartoon characters at the back of their notebooks should be arrested and/or fined.

Technicaly they could be. They aren't simply becasue it's more trouble than it's worth to prosecute them.
last edited on July 14, 2011 1:45PM
kyupol at 7:20AM, Jan. 31, 2006
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lostpriestess
kYuPoL
if fanart is a crime (copyright infringement), everyone who draws comic book or cartoon characters at the back of their notebooks should be arrested and/or fined.

Technicaly they could be. They aren't simply becasue it's more trouble than it's worth to prosecute them.

Thats crazy. :shock:

That is where artists begin in the first place. Just like how bands begin in the first place. Before composing a song, the band plays songs that have already been composed. Same thing about art. Copy before doing something original.
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last edited on July 14, 2011 1:24PM
ozoneocean at 7:47AM, Jan. 31, 2006
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kYuPoL
if fanart is a crime (copyright infringement), everyone who draws comic book or cartoon characters at the back of their notebooks should be arrested and/or fined.

Technicaly they could be. They aren't simply becasue it's more trouble than it's worth to prosecute them.
Technically yes, but there's more at issue than just the trouble it takes. You have to know about the infringement first; that means the only people who are prosecuted are the ones who flagrently flout it. Then there's the issue of making money of the infringement or claiming it as your own creation; both those things will bring people down hard on you.

No one cares about people drawing in the back of their exercise books Kyupol. No one. If that sort of thing was prosecuted there wouldn't be a copyright law. It'd become a joke and they'd have to get rid of it.
 
last edited on July 14, 2011 2:23PM
isukun at 8:46AM, Jan. 31, 2006
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Then there's the issue of making money of the infringement or claiming it as your own creation;

The money issue is actually not that important. The biggest issue is whether the artwork in question causes damages to the company who sells the original. A company likely couldn't sue you for doodling in the back of your notebook. Technically, there is very little case for them to claim damages on your doodles, so it would be a lot of wasted time and money on their part to even take you to court (assuming the case wasn't just thrown out). The reason money often becomes an issue is because when money comes into the picture, the consumer is then presented with a choice on how to spend their money. Free fan products can compete with or lessen the integrity of a franchise, but that is harder to prove in court. Many artists misinterpret this as meaning it's legal.

.: isukun :.
last edited on July 14, 2011 1:03PM
chewdy at 9:25AM, Jan. 31, 2006
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It's kinda like going to a Rolling Stones concert and selling your garage-disc of Rolling Stones covers in the parking lot. :P

This was gunna get stomped on at anime conventions soon enough–it's something that /has/ to be stomped here because Anime's a business now, not a fan-driven cult. But maybe some honest-to-god dojinshi cons will start up in the US because of it.
last edited on July 14, 2011 11:41AM
Aurora Moon at 10:19AM, Jan. 31, 2006
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chewdy
This was gunna get stomped on at anime conventions soon enough–it's something that /has/ to be stomped here because Anime's a business now, not a fan-driven cult. But maybe some honest-to-god dojinshi cons will start up in the US because of it.

ooh, that would be so awesome. I'm so tired of having to download Dojinshi from the net or buying those sort of thing directly from japanese just to get my fix on some fan-made items. :lol:
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last edited on July 14, 2011 11:09AM
isukun at 10:34AM, Jan. 31, 2006
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I wouldn't count on it, though. The anime industry in the US isn't as expansive as it is in Japan. Doujinshi in Japan is often a gateway or supplement for a much broader spectrum of merchandise sales. Here the companies make the majority of their money from DVD sales and Fans tend to be tighter with their cash. Any sales beyond the DVDs and available merchandise is potential money out of their pockets, especially when it's for franchises not available in the US.

There aren't enough artists in the US who create doujinshi. The closest you would get would be the major cons for independent comics in the US, but those tend to stay legit. Without enough American artists, you would have to rely on Japanese circles, but the doujin market isn't a high income market, even over there. I doubt too many artists would be willing to fly out to the US to sell their books.

.: isukun :.
last edited on July 14, 2011 1:03PM
mykill at 8:09PM, Jan. 31, 2006
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Well, I've seen some of the ‘fan art’ and ‘fan comics’ - and I know if I was a creator of the work being so imitated, I'd be unhappy with the imitation. As a comic fan, I was weirded out - if the art and writing is on point - it seems a complete waste to be imitating someone elses property.

Mad magazine provides the classic example of parody done properly and legally: it's done ONCE. No one parody is used to sell the magazine for consecutive issues. ANYTHING GOES, if you do it once.

MY next project with feature explicite Hollywood stars, for the one issue. For purposes of parody.

There is kinda a precedent in american Star Trek fans, writing fan fiction. BUT, the written story is a different medium than TV and the TV show was off air and no longer being produced.

Where's the T.H.U.N.D.E.R. Agents fan comics?
last edited on July 14, 2011 2:09PM

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