Ubu has a post about a web site called "Crunchyroll" which seems to be straddling the fansub gray area. It reportedly holds a large number of fansubs which it offers for download, but recently it also made at least a handfull of official license deals with Gonzo. He includes this comment:

Now the really interesting thing is this: a number of C&D orders have been received by groups working on the series Rosario + Vampire, leading many to assume that it has been licensed to Crunchyroll. Which would be really, really interesting from several points of view — especially legal. Y’see, Crunchyroll has all the Ayako-Bakawolf fansubs on its site.

If they’ve licensed R+V (which I doubt) its going to be a hoot to see them trying to make money off of someone else’s fansub. ...

Are they gambling that no fansub group will dare surface publicly and sue them? Now that could be interesting if they do.

It would, but it ain't gonna happen. I Am Not A Lawyer but for a layman I'm pretty well versed in US copyright law, so here goes:

The key legal phrase in all this is "derivative work". If Leonardo draws a picture of an anime girl and posts it on 4Chan, Leonardo has copyright. (Of course, as we all know, Mr. Da Vinci was a big fan of anime.) Under the Berne Convention, copyright is automatic unless explicitly waived. If someone else puts that image on a T-shirt and sells it, the T-shirt is a "derivative work", and if they do it without Leonardo's permission, Leonardo can sue.

When he produced that drawing, he didn't just gain copyright on it. He gained copyright on all derivative works based on it even if produced by others. He owns that copyright automatically unless he sells it or explicitly waives it.

That's why fansubs are copyright infringement. They, too, are derivative works, and under copyright law technically they belong to the animation studio.

You might argue that the translations are original works and copyright on them belongs to the fansubbers. The answer is "no" because it's a derivative work, but also because of the "doctrine of clean hands". A fansubber can't plausibly argue in court that his translation should be protected even as the fansubber was engaged in infringing the copyright of the anime studio. Even if there were a copyright on the translation, it's moot because no court would sustain it. And anyway, there isn't one.

So that's why a studio could sue and win. The reason they don't try is that fansubbers don't have any money, and crushing an ant or two would harm the studio more than it would the fansubbers, because though the studios would be awarded damages and likely also their legal expenses, there's no way they would ever collect.

But that works the other way, too, which is really a bit delicious. The fansubbers turn out to have no copyright. The studios own the fansubs, because they're (unauthorized) derivative works. The studios can sell the fansubs. Ubu wonders what would happen if a fansubber were stupid enough to try to sue, if that happened.

They'd have to be really stupid. The first step would be to consult a lawyer, and the lawyer would tell them two things:

1. You have no chance of winning.
2. If you want me on this case, you pay me per hour. I won't do it for a percentage, because you have no chance of winning and thus I would have no chance of being paid.

So the fansubbers would have to scratch together tens of thousands of dollars to pay their lawyer to file and plead. Suppose they managed to push the case all the way to decision?

The most likely outcome is that the suit would be dismissed with prejudice pretrial because the plaintiff has "dirty hands". But if there were a trial, the studio would win. The studio would be awarded their legal expenses on the basis of it being a frivolous suit. And the studio would then have a confessed copyright infringer they could countersue. (And if a fansubber had enough money to get this far, they probably have enough more money to be worth countersuing.)

Ain't gonna happen. So the nicely ironic result is that if Crunchyroll legally licenses a series (e.g. R+V as rumored), they could sell access to illicit fansubs of that series.

And there's not a damned thing the fansubbers could do about it.

Posted by: Steven Den Beste in General Anime at 06:02 PM | Comments (7) | Add Comment
Post contains 749 words, total size 5 kb.

1 It's more complicated than that.

You're right about the "dirty hands" stuff, and that's going to complicate any sort of litigation. But at the same time, while the fansubbers didn't have a right to distribute their derivative work, it's arguable that they did have a right to create a translation of that work (though not for distribution purposes), and Crunchy doesn't have any right to use -that translation- of the work, license or no, without an agreement. They have the right to create their own, of course, but then they'd have to actually do it.

Realistically, it'd probably be worked out way before it got to court - Crunchy would offer to quit any claims of infringement if the subbers did the same, subbers agree to allow Crunchy the use of their translation, nobody gets around to filing.

This is precisely the sort of legal question that you don't want taken to court, counter-suit or not. That's especially true for Crunchy, who themselves don't have clean hands - they didn't obtain the license for R+V before distributing it, and to be blunt, they're a big bunch of pirates themselves. With both parties engaged in piracy, there's always the chance that the judge will see the opportunity to swat the hell out of the big nasty corporation...

The interesting thing about the situation, though, is that Crunchy regularly violates all sorts of copyrights. It is, after a fashion, what they DO. So how long is it before one of the other production companies comes down on them? (Especially if they're now also a competitor, and have funding that makes them worth suing?) Thousands of dollars is a whole lot to throw at a pirate to stomp him out, but it's cheap if it slaughters one of your competitors and you've got every chance of making your investment back and more...

Posted by: Avatar_exADV at March 24, 2008 06:54 PM (LMDdY)

2

Avatar, I don't think you're right. A translation is a derivative work, not an original work, and as a derivative work the copyright belongs to the animation studio, not to the fansubber.

It's like a foreign translation of a book. That's also considered a derivative work, not an original work, and copyright on a translation belongs to the original author, not to the translator. For a translation to be legally published, the translator and his publisher would have to get a license.

Crunchyroll itself is definitely in a legally anomalous position, because they do have dirty hands. But the animation studios are in no such bind, and if the fansubbers went after Crunchyroll, I think it would be the studios that responded.

The fansubbers have no property rights here, so far as I can tell. Thus there's no tort.

Posted by: Steven Den Beste at March 24, 2008 07:46 PM (+rSRq)

3 That's not how it works. You'd think the law would assign the rights to unauthorized derivative works to the original author, but it doesn't; they're in a very ambiguous legal state. Specifically, there have been cases where someone who created an unauthorized derivative work has sued the original creator for stealing their ideas (usually for things like television shows). It's not common, and it's a difficult legal case to prove, but it does NOT get thrown out immediately; that is to say, the courts are willing to listen to an argument that the creator of the unauthorized derivative work may have rights against the original author, and it's just a matter of proving the theft (which is, well, bloody hard... unless they lifted your translation wholesale, which makes it a bit easier. ;p)

Ever wonder why book authors are so down on fan-fiction? There's always the chance that someone is going to write something close enough to one of your ideas-in-production that, even though you personally never knew it existed, they might take it into mind that you stole it from them and sue you (and the judge will at least entertain the idea). Niven did a discussion of this in one of his collections years ago - how it wasn't just because he had a thing against Kzinti S&M porn stories, but he had to essentially take a "scorched earth" view of fanfic to cover his own legal butt.

All this gets complicated by the fact that translations are a funny category of derivative work. You -do- have the right to translate something for yourself; and generally, you have a right to hire a translator to produce a translation of a work for your own use. You just don't have a right to distribute that translation around to third parties...

It's not like this is an intended consequence of the law - clarity would be much better than the muddle we're left with, so it'd be nice if someone poked the law appropriately one of these days. Unlikely to happen, though, since it's a pretty minor effect and the attention of federal legislators is at a high premium. It's too bad, because ironically, in an environment where the creators didn't have to worry about their rights being potentially compromised by fan-works, we'd probably have a lot more room for those fan-works, Comiket-style. (The Japanese don't have to worry about this stuff, heh... and you'd be correct there, not that the Japanese go in for frivolous lawsuits in the first place.)

Crunchyroll is in a much worse position than a normal "author", though, because it's in violation of the same laws (and on the same works, much of the time.) In a suit-counter-suit situation, Crunchyroll has to worry about a judge who'll ignore the fine points of the law in order to achieve substantive redress - i.e. reducing Crunchyroll into a smoking crater. ;p

Posted by: Avatar_exADV at March 24, 2008 08:56 PM (LMDdY)

4 Well, I was going to post about how I didn't think that derivative work law worked the way Steven says, but Avatar already beat me to it. 

I think (part of) the reason the law doesn't assign the copyright on unauthorized derivative works to the original copyright holder is that it would open the door to abuse on the part of the original copyright holder.  (If a license expires, would that mean that once authorized works become unauthorized and instantly become sole property of the liscensor?)

As it currently stands, broadly speaking everyone owns their own work, and you can't make use of somebody else's work without permission (barring fair use and other copyright exceptions, of course).  Which basically seems fair enough.

Posted by: Aaron Nowack at March 24, 2008 09:07 PM (AFfUz)

5 US law seems to be pretty clear: an unauthorized translation is not a copyrightable work. The fansubbers can only claim copyright to elements in the translation that are not derivative of the original work. Which, in practice, means "nothing". If they want to sue, they won't be suing over copyright, at least, not in the US. (I don't know the specifics of how derivative works are treated in the various treaties the US and Japan have both signed.) Quoting:

In any case where a protected work is used unlawfully, that is, without the permission of the owner of copyright, copyright will not be extended to the illegally used part.

Who May Prepare a Derivative Work?

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

The stories you hear about people suing over use of their fanfic or a story they submitted to the producers are based on the original elements in their work. New characters, original dialogue, novel plot elements, etc. Only really bad fansubs tend to have that sort of thing.

-j

Posted by: J Greely at March 24, 2008 10:35 PM (2XtN5)

6

Back in the late 90s I had a looooong drawn out legal discussion between myself (well, my lawyer, who has in the past handled intellectual property rights for little companies like Kellog's and Sun), Dark Horse, the US Copyright Office, and Kodansha.

Bottom line: fansubs and scanslations are illegal derivative works to which the producers of same have no rights whatsoever.  If we chose, we could license a work, gank a scanslation off the net and publish it, and the fans could go pound sand.

Posted by: Toren at March 25, 2008 12:24 AM (4lnL1)

7 Well, obviously some of the legal advice people are getting on the topic is contradictory. ;p

Posted by: Avatar_exADV at March 25, 2008 08:50 AM (LMDdY)

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