Yes. It is.
According to United States copyright law, ownership of a work belongs to the author of the work unless it is either transferred by a contract or 50 years pass after the author’s death (75 years for a corporate work). The Copyright Act of 1976 protects literary, musical, dramatic, choreographic, pictorial, sculptural, and architectural works in addition to motion pictures and sound recordings (17 U.S.C. Section 102[a]). Japanese copyright law includes the same protections and assigns specific rights to the author (Article 20):
The author shall have the right to preserve the integrity of his work and its title against any distortion, mutilation or other modification against his will.
Article 21 states authors have the exclusive rights to reproduce their work. United States copyright law also protects this (17 U.S.C. Section 106). Fansubs and scanlations are unauthorized reproductions and modifications of a work without the authors’ contractual permission. Lawsuits and cease and desist orders are fully within the rights of the author. You may be aware of Nintendo doing this with Youtube videos. Nintendo often has videos showcasing their video game content removed, and it is fully within their legal rights. Manga and anime owners can pull their content in the same way.
However, you can feature manga, anime, and video game clips under US Fair Use. Fair use is the ability to use copyrighted material without needing to get permission from the copyright holder. US Courts use four criteria to determine fair use (17 U.S.C. Section 107):
- The purpose and character of the use, including whether such use is for commercial or for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for, or value of, the copyrighted work.
Scanlations and fansubs deal with the fourth clause the most. In the past, Japanese publishers have used fangroup work to test interest for a particular title. Fangroups have worked with publishers by pulling their translations and distributions as soon as an official release drops. This prevents fan translations from negatively affecting the value of the work. Many publishers turn a blind eye to fan works as long as they don’t cut into sales. However, some companies encourage and sponsor fan-made comics (called doujinshi) in order to engage with the fandom.
As copyright holders and mediators, publishers have the ability to decide how much fans may violate copyrights. The power is in their corner; they can use their rights whenever they desire. However, this comes at the cost of customer relationships. Fan-fiction, scanlations, and fansubs generally help publishers; they provide free marketing and market testing. Back in the 1970s, people struggled to find anime in the United States. American fans would record shows like Star Trek and Battlestar Galactica and exchange them for anime with Japanese fans. Over time, fans translated the Japanese anime they received through these trades and shared with other fans, expanding interest in anime. Fansubbing and scanlations broke open the United States market. It has forced companies to see how anime and manga has an audience in countries not usually known for its anime and manga fans; you can find scanlations in Arabic, for example.
However, the community succeeded a little too well. Today, anime often releases on the same day in the United States and in Japan. Manga will release if not the same day, at least within a reasonable timeframe. The fan community can still push for obscure releases from companies, but its role in testing potential markets fades. However, fans will continue to translate obscure titles. The advent of online distribution (streaming and ebooks) has increased anime’s exposure, making publishers distribute a wider variety of stories at reduced costs.
Ethics of Scanlation and Fansubbing
Copyright law intends to protect the author’s ability to benefit from a work. After all, mangaka have to eat; the people who work at Tokyopop and Funimation have to eat. Anything that hurts an author’s ability to earn value from their work becomes theft. In some regards, this is why many companies look the other way. Publishers don’t release their properties to every country, and this allows scanlations to exist without negatively impacting those non-existent markets. By discontinuing a scanlation or fansubs after an official translation publishes, fans aren’t competing with a company. After all, free is hard to beat. However, people who have downloaded scanlations and fansubs may not purchase the official translation. This, in turn, hurts the prospects of getting new manga in the same genre.
Publishing is a business that goes where the money lies. It’s better to vote for your favorite series with your wallet than with scanlations or fansubs. Authors and fans survive together. Authors need fans in order to survive; fans need authors to create content. If fans don’t do their part, authors won’t continue to make new stories.
So far, I’ve only discussed scanlating and fansubbing entire works. However, noncommercial informative works, satirical works, and critical works can find limited scanlating useful. You don’t have to scanlate an entire manga to argue for its release. A few pages used as an example for your argument is generally protected under fair use.
Of course, this isn’t legal advice. Only copyright lawyers can tell you for certain if your blog post is violating copyright or not. However, translating an entire manga or subbing an entire anime is a copyright violation. It is intellectual theft. So don’t be surprised if the mangaka or publisher forces the issue. In any case, such review articles can potentially draw attention of publishers if they are well written. It doesn’t hurt to contact the publisher either. If enough people do, the publisher may consider a limited released. Then be certain to purchase it! Like it or not, money determines the type of stories publishers release and mangaka create.
Denison, R. (2011). Anime fandom and the liminal spaces between fan creativity and piracy. International Journal Of Cultural Studies, 14(5), 449-466. doi:10.1177/1367877910394565
Jenkins, H. (2006). When Piracy Becomes Promotion. Reason, 38(7), 78-79.
Copyright Research and Information Center (n.d.) Copyright Law of Japan. Retrieved from http://www.cric.or.jp/english/clj/cl2.html
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