Prospects for fan culture and intellectual property law: game commentary, character cakes, and cosplay

Can people be arrested for spoiling games in commentary videos?

The entertainment market, such as for manga, anime, and games, is supported not only through the consumption of content itself but also through a diverse range of activities by fans, including secondary creation represented by doujinshi, character cosplay, and the distribution of recently popular “game commentary” and other videos.

This fan culture is fascinating as an analysis subject from the perspective of intellectual property law, which is my area of expertise. For example, fans’ secondary creation is recognized as fair use of works in the United States, but in Japan, there are legal gray areas surrounding it.

The United States’ copyright law includes the “fair use” provision, which is a “general standard for use that does not constitute copyright infringement,” allowing courts to consider various factors comprehensively and make flexible judgments. In contrast, in Japan, unauthorized use is considered illegal in principle, except for the “types of use for which copyright is exceptionally limited” specifically defined by legislation.

However, in Japanese fan culture, even acts that formally constitute copyright infringement are often tacitly permitted by rights holders for various reasons. This subtle distinction is seen as a very interesting phenomenon from an international perspective.

In cases of copyright infringement, there are civil and criminal proceedings. However, a civil case seeking damages will not go to court unless the rights holder files a lawsuit. Additionally, a criminal case often corresponds to an offense subject to prosecution only on complaint from the rights holder.

There are individuals with a strong sense of justice who, even though they are not rights holders themselves, condemn the practice on social media saying, “This is similar to XX, so it’s copyright infringement!” However, it is important to understand from the outset that this approach is wrong.

So, how is the line drawn between what is “allowed” and what is not in reality?

Perhaps there exists a delicate balance between rights holders who choose not to pursue legal action and users who believe they cannot be sued, and when that balance is disrupted, this can lead to deletion requests or lawsuits.

A clear example is game commentary. Since the fun of playing a game is difficult to convey without actually playing it, YouTubers’ and VTubers’ distribution of play videos plays a significant role as promotion. Therefore, even in cases where formal permission is not sought by users, game companies may choose not to exercise their rights.

However, in some cases, there have been arrests. In May 2023, the police arrested an individual who uploaded gameplay videos to YouTube without permission and earned advertising revenue on suspicion of copyright infringement. In September of the same year, a district court issued a guilty verdict with a suspended sentence.

This case is considered to have violated the secondary use guidelines provided by the rights holder. In particular, the act of editing game movie scenes into short clips that reveal the ending was considered “extremely malicious” by the rights holder.

Since copyright law “protects expression but not ideas,” and in view of the balance with the constitutional guarantee of freedom of expression, it is difficult to regulate so-called “spoilers” themselves. However, since game screens are interpreted as “copyrighted works of films,” their unauthorized distribution can infringe upon reproduction rights and public transmission rights.

The dangerous line to be aware of in cosplay

Although guidelines themselves are not laws, rights holders establish and publicly disclose them to permit secondary use while also suggesting the possibility of exercising their rights against those who do not comply. If, despite guidelines stating “spoiler activities are strictly prohibited,” someone proceeds to distribute videos without adhering to them, there is a possibility that rights holders could exercise their rights citing infringement of reproduction rights and others.

Additionally, in fan culture as a form of secondary creation, the handling of characters often sparks discussion, and this extends to various points in intellectual property law as well.

In November 2021, the police sent papers to prosecutors on a pastry chef who depicted popular characters from the anime “Demon Slayer: Kimetsu no Yaiba” on cakes and sold them, on suspicion of copyright infringement. It appears she generated over four million yen in sales for two years through the unauthorized creation and sale of character cakes.

Since “Demon Slayer: Kimetsu no Yaiba” officially sells character cakes, her cakes can be considered “pirated versions.” Drawing favorite characters on a family birthday cake is generally not a problem, but selling extensively online and generating significant commercial profits could be perceived as impacting the rights holder’s business, making it more likely for the rights holder to exercise their rights.

Additionally, moral rights of authors are also relevant here. They include the right to integrity, and the author of a work “is not to be made to suffer any alteration, cut, or other modification thereto that is contrary to the author’s intention.” Therefore, secondary use that degrades characters is more likely to be considered problematic.

A well-known example is the Pokémon doujinshi incident, where the rights holder sued over sexual depictions in fan-made manga, alleging that they significantly damaged the characters’ images. Similarly, modification (MOD) of programs, such as removing a game character’s clothes, can also be seen as a violation of the right to integrity.

Apart from commercial interest issues, actions that harm the author’s sentiments are likely to increase the possibility of rights exercise.

On the other hand, it is difficult to draw a line for cosplay. If someone creates and wears a costume for personal enjoyment, this falls under acceptable “private use.” However, once cosplay photos are taken and uploaded to social media, this enters a gray area. Furthermore, transferring or selling costumes to others can often lead to problems.

Formally, costumes of characters can also be considered copyrighted works. In addition to reproduction and public transmission rights, transforming from two-dimensional to three-dimensional may infringe on adaptation rights. It also raises concerns about industrial property rights, such as trademark or design law, if the relevant characters have been registered. Using cosplay for advertising or services might violate unfair competition prevention laws.

However, fans should be aware that “commonplace clothing is not considered a copyrighted work.” For example, a yellow polo shirt that seems to be sold everywhere does not meet the requirement of “creativity,” which is necessary for a work to be considered copyrighted. Therefore, even if the shirt resembles Nobita’s clothing, it would not infringe upon the copyright related to the manga “Doraemon”.

What if permission from the copyright holder cannot be obtained?

So, what should fans do when they try to obtain permission from the rights holder but are unsuccessful? Consider the following scenario:

A privately-owned bar is planning a gathering for retro game enthusiasts to play games on old gaming consoles released about 40 years ago. Since charging participation fees would turn the gathering into a for-profit event and infringe upon screening rights, the organizer thought about obtaining permission in advance. However, upon investigation, it was found that the gaming company ceased to exist over ten years ago owing to consolidation and elimination. It is totally unclear who is the current rights holder.

Such a situation can be addressed under intellectual property law. There is a system where a person can use works whose rights holder is unknown (orphan works) by going through the procedure prescribed in Article 67 of the Copyright Act, including making an application, being issued a compulsory license by the Commissioner of the Agency for Cultural Affairs, and depositing compensation.

Intellectual property rights may give the impression of placing a strong emphasis on protecting property, but as Article 1 of the Copyright Act states, “The purpose […] is […] to contribute to cultural development,” promoting people’s use is also an important legal objective.

In terms of fan culture as a form of secondary creation, entertainment thrives with fans, and there is an expected synergistic effect of exploring potential markets through fan activities. If rights holders exercise their rights over every action by users, this can raise societal questions and might even lead to a shrinkage of fan activities, ultimately resulting in losses for rights holders.

In this sense, the current trend of rights holders actively publishing guidelines for secondary use is a very positive development, in my opinion. Considering the convenience of users and the cultural impact, it is ideal to aggregate and coordinate the opinions of rights holders and users to create such guidelines, though this requires time and effort.

However, as recent cases have shown, the delicate balance between protection and rights based on tolerance and tacit understanding can quickly collapse if it leans too much towards one side. From a legal perspective, it is desirable for stability and predictability to be ensured, so analyzing the mechanism of this balance is one of the tasks we researchers should undertake.

Additionally, while foreign laws generally apply criminal penalties for using copyrighted works on a commercial scale, the penal provisions of Articles 119 and following of the Japanese Copyright Act lack references to commercial scale or similar wording for most types of actions. In other words, the line of applying criminal penalties is currently ambiguous, so there is a need to limit the scope such as by clarifying prosecution practices.

With some copyright law violations becoming offenses not subject to prosecution only on complaint due to legislative changes, research on the future of fan culture as a form of secondary creation and criminal penalties will become even more crucial.

Currently, KANEKO Toshiya, a professor at School of Law, Meiji University, is leading a joint research effort to understand the actual implementation of copyright law penalties and compare it with other countries. I hope that we can conduct research that contributes to the development of a culture where rights holders are protected without intimidating users.

* The information contained herein is current as of April 2024.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
* I work to achieve SDGs related to the educational and research themes that I am currently engaged in.

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