Last week’s column took a look at the doujinshi phenomenon, made up of amateur mangaka self-publishing and selling novels and manga, many of which are based on already-published properties.  This is an obvious violation of copyright, yet most Japanese creators and companies tolerate its existence, even to the point where these derivative works are sold in commercial manga stores and at large conventions.  Why?

In the United States, the concept of copyright is that it fosters creativity by allowing the creator of a work to exclusively benefit from his or her labor for a period of time.  In other words, artists and writers do not create solely for the pure joy of it, but also to pay rent and put food on the table.  If someone else takes that work and sells it, for example writing a sequel to a book, then the original writer does not benefit from it and has no incentive to create more works.

Japanese copyright law is similar to United States copyright law: the copyright holder (who is usually the mangaka) has the right to control the duplication and adaptation of his or her work.  A doujinshi made using the characters from a published manga is an adaptation of that manga, also known as a derivative work, and is clearly in violation of the original mangaka’s copyright.  The Japanese courts have clearly stated in several court cases that graphic characters are covered under the copyright laws. 

There is an exemption under Japanese copyright law that allows people personal use of copyrighted material in very small circles such as a family, or circulating a story among a few friends.  However, marketing a doujinshi at Comiket would be in violation of that, because the hundreds of thousands of potential purchasers are by no means a limited circle.

So … why does the industry tolerate doujinshi?  For one thing, there is a history of borrowing characters in the manga world.  During the middle part of the 20^th century, mangaka often borrowed each other’s characters.  There is also a tradition of using historical and cultural folk characters in manga:  for example, both Dragonball Z and Saiyuki are based on the legend “Journey to the West,” many of the characters in Rurouni Kenshin are based on historical figures, the title character in Lupin III is the grandson of a master thief character created by a French author, and I can’t count the number of times I run into mentions of Suzaku, Byakko, Genbu, and Seiryu, the Four Chinese Gods of mythology, in manga, anime, and games ranging from Fushigi Yuugi to Yu Yu Hakusho to Cowboy Bebop to the Final Fantasy franchise.

It’s possible, argues Salil Mehra, a law professor at Temple University Law School, that the doujinshi market is good for the manga industry overall.  Manga publishers don’t make the bulk of their profits from manga, but from merchandising.  If doujinshi will help a manga title gain in popularity, the publishers stand to make more money through licensed merchandise such as figurines, phone cards, costume accessories, artbooks, key chains, phone straps, stationery, and so on.  Doujinshi is also a potential way for the industry to discover new talent – certainly a number of mangaka got their start in doujinshi, although it’s unclear how much talent scouting publishing companies do of doujinshi. 

Doujinshi can also promote creativity and innovation.  The creators of doujinshi aren’t limited by the need to sell as many books as possible to as many people as possible, so they can afford to experiment with topics and styles that the major publishers won’t risk.  Once these are proven successful, such as happened with boys-love and yaoi, the publishers will then incorporate them into their offerings.  In support of this, conventions have committees who review doujinshi that are submitted for sale and reject any that are not sufficiently different from the original work.

This isn’t to say that companies don’t prosecute doujinshi creators.  In 1999, Nintendo had a creator arrested for making pornographic Pokémon doujinshi.  Nintendo also stated that they tolerated limited circulation of doujinshi, but did not approve of the production of hundreds of copies. More recently the publisher of Inu-Yasha, Shogakukan, had a U.S.-based doujinshi circle fined for publishing pornographic Inu-Yasha doujinshi.

But what about individual mangaka?  The industry may stand to make more money from tolerating unlicensed works, but it’s not clear that the individual creators do: if the public prefers the doujinshi version of their characters to the originals, then their sales can fall.  For one thing, a mangaka filing suit against a doujinshi circle stands to anger their readers, which can lead to a loss of sales.  Secondly, and probably more importantly, in Japan copyright litigation takes a longer time to do than in the U.S. and results in much lower awards.  One copyright case that involved reprinted newspaper articles in both Tokyo and New York resulted in the Japanese court awarding the plaintiff $800 plus court costs, while the U.S. court awarded $420,000.  The final result may not be worth the time off work and the possible damage to the reputation of the mangaka.

Of course, the final reason the Japanese industry tolerates doujinshi is probably that the doujinshi market is just too big.  Lawrence Lessig, a professor of law at Stanford Law School, writes in his book Free Culture:

I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by a friend from a major Japanese law firm. “We don't have enough lawyers,” he told me one afternoon. There “just aren't enough resources to prosecute cases like this.”

Further reading:

Lessig’s book Free Culture can be found online through his website at http://www.lessig.org/.  The major doujinshi discussion is in chapter 1.

Salil Mehra’s article “Copyright and Comics in Japan: Does Law Explain Why All the Cartoons My Kid Watches Are Japanese Imports?” can be found in the Fall 2002 issue of the Rutgers Law Review.