As long as Super Art Fight is involved with Katsucon in some form or another, I will most likely return to the convention year after year. However, if I were on my own and making up my con schedule for the new year, I’d seriously consider not returning to Katsucon until they lift their fan art policy.

The Policy In Question
In an email sent to artist alley participants, Katsuchan (I will now replace the word “con” with “chan” for any con that has “con” in their name) President Paul Blotkamp outlined the specifics of the new policy. I will not quote the thing in its entirety, but these opening paragraphs serve to explain the policy:

As many of you have surmised, Katsucon has been working towards a goal of all original art for a few years now. The policies have changed from year to year as a means to gradually phase out fan art, rather than eliminating it all at once. But circumstances have forced us to move up our timetable.

Once again, I would like to stress that we are not changing policies just to be difficult. We are trying to be compliant with existing copyright and trademark laws. I also want to reiterate that it is not our intention to investigate every table, looking for fan art. But if someone comes up to us and says “Table X is selling fan art”, then we are bound to act on that information.

If and when someone tells us that an artist is selling fan art, we will ask the artist whether they have received permission from the original creator(s) for the art. If not, we will ask the artist to remove that art from their table. If we see or hear about that art a second time, then the artist will be ejected from the Marketplace. So we will give you one warning.

But why are we making a big deal about fan art at all? Well, we have become increasingly aware of the laws regarding copyrights and trademarks. Without going into boring detail, here is the gist of the matter from Section 106 of Title 17 of the United States Code.

The owner of copyright has the exclusive rights to do and to authorize:
(1) to reproduce the copyrighted work;
(2) to prepare derivative works based upon the copyrighted work;

Later in the message, he goes on to explain how parody works fall under the same statute and states that in effect, “even if you never show a derivative work you create to anyone, it is still technically a violation of the copyright.”

The Sadness

Without getting too deep in the legalese of the matter, technically, this is all correct. Anytime you do fan art or sell fan art, unless you get express permission from the copyright owner or license holder, technically you are breaking the law. I suspect parody is actually protected since we see examples of parody every week on Saturday Night Live, but I won’t even bother.

Technically speaking, the Katsuchans are following the letter of the law.

The Hypocrisy

However, if we are going to talk of derivative work, it doesn’t get much more derivative than Anime Music Videos and Cosplay. Neither Cosplayers nor Anime Music Video producers get permission from copyright owners or license holders to create their works and display them for public. It’s even worse in the case of Anime Music Videos because not only are they violating copyright laws regarding the anime they are using, they are violating music performance laws by using music without any licenses.

It would be one thing if the Katsuchan policy was enforced equally for every participant in the con. But the policy will only be enforced against artists. Artists must abide by copyright laws, but somehow Cosplayers and Anime Music Videos are protected? This stinks of hypocrisy at its finest. Which I guess should be expected from a convention so close to D.C.

The Comiket Factor

I suspect that if you actually asked the anime producers or manga-ka who create the original works in the first place if they care if American fans create and sell pieces based on their properties, they would shrug and go on their merry way. In Japan, fan art and fan comics, doujinshi, are celebrated twice a year at Comiket, the largest comic conventions in Japan.

Fan work created by aspiring artists and even some established names are sold exclusively at Comiket. Some artists make their entire annual salaries at Comiket. Many established creators got their early start doing doujinshi.

Fan work is an established tradition in manga and anime culture. To deny it is to deny the very thing U.S. anime conventions were created to celebrate.

The Comic Con Factor

But we needn’t look overseas for examples of a thriving fan art culture. Every year at San Diego Comic Con, you will see amateur and professional artists selling fan work based on intellectual property whose owners are mere steps away. Now in the case of many of the professionals, they are indeed given permission by the copyright holders to create those works. The amateurs, not so much. But no one cares because it’s understood that to break in to the business, sometimes you might have to draw a Spider-Man or two.

Like the doujin creators at Comiket, there are some amateurs who are able to make a decent enough living selling their fan works at Comic Con. You could argue that in some respects, they are taking money from the original copyright holders. And yet, it still goes on. It’s an accepted practice that has become part of the culture of Comic Con.

Licensing Killed Fandom

Anime cons used to be the only place that most people could actually watch anime. Early anime cons showed bootleg VHS tapes of anime and few had subtitles. Vendors sold original language manga and videos and bootleg subtitled versions that were made by fans who knew Japanese. Some even tried their hand at creating their own manga. It was a great time for fandom.

And then the licensors came to cash in on this fervent fandom. The scene changed. And while its great that now you can purchase legal copies of manga and anime, the license holders have killed off one of the most endearing aspects of the anime and manga culture. Fan art.

License holders jealously guard the titles they paid for. It’s not unheard of for license holders to send out cease-and-desist notices to American fans creating derivative works. Sure, they’re within their legal rights. But it’s doubtful that a fifteen year old kid selling prints of Edward Elric at an artist alley table is really cutting in to the profits of Funimation. And if it is, maybe Funimation should hire the kid. Must be doing something right.

This is Not the Katsuchans I Remember

Anime cons used to be a haven for fan created work. Now it seems like they’re more interested in covering their asses.

The Katsuchan policy is a typical cover-you-ass move. But it’s being applied unequally. If fan artists are breaking the law, Cosplayers and Anime Music Video producers are also creating prohibited works. Either all fandom is prohibited from the Katsuchan or all fandom is protected at Katsuchan.

“Oh, but you can’t get rid of the AMVs or Cosplay! The kids freaking love them! Those are the heart of the convention!”

Guess what. So’s the Artist Alley.

It irritates me to no end that Katsuchan doesn’t see this hypocrisy.


  • http://www.conscrew.com Kara

    Before someone comes in and talks about how AMV creators and cosplayers don’t make money in their areas, I just want to throw out there that one of the GoHs is a cosplay idol who makes her living recreating licensed characters. (And this is NOT downing Yunmao — she’s a friend of mine and her work is awesometastic and inviting her year to year is one of their actual GOOD decisions.) More than anything, she should be an example of Japan’s stance on recreation of their work.

    I could understand if, like some cons, Katsu limited the amount of your merch that could be fanart — I guess. I wouldn’t put the limit as low as some do, though.

    This really is a case of the letter vs. the spirit of the law. Sadly this is happening at other-genre cons and online. A craft website got smacked down for offering a pattern for a crocheted Adipose not long ago. My only problem with the backlash is that we’re sharing this opinion with teenagers who don’t know how to back up their argument and instead sit there yelling that it’s ‘not fair.’

    This article really needs to go to the people at the top, and I’m gonna do my part to help with that, for what it’s worth.

  • David

    I’m not a lawyer and I’m not sure about selling fan art at cons, but there are a couple of things that can be said:

    1)
    “even if you never show a derivative work you create to anyone, it is still technically a violation of the copyright.”

    This is absolutely not true. It is only when distributing or performing that copyright law comes in to play. Obviously, selling fan art to other people is distributing it, but that statement by itself is not true.

    2)
    There is absolutely coverage for some forms of parody under fair use rules but I’m not clear on the details. I do know you can’t just copy and call it parody.

    As far as AMVs go, I would imagine, but I’m just speculating here, that there would be more problems with the music than with the video because the video use is transformative while they’re usually just using the music as is. Additionally, music has a lot more history when it comes to copyright. There are more legal precedents as well as specific legislation that deals with it.

    Speculating again, but I’m willing to bet that cosplay will be protected unless it is heavily commercialized. Like if someone were selling Spiderman costumes without a license. I don’t think the mere fact that people are attending a con, a commercial event, while cosplaying would be enough to run afoul of copyright law.

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  • http://punkadyne.wordpress.com Grig Larson

    Jamie, let me say I appreciate and respect your point of view. While I cannot go into the situations that led up to this decision, you bring up an interesting parallel: the anime bootlegs that used to fill the merchants rooms a little over a decade ago.

    The argument, which had no legal stability back then despite the blind eyes, was “you can’t get them anywhere else.” This was true, and a lot of merchants, if you recall, had just boxes of blank VHS tapes with penned labels. Fans knew the good merchants from the ones who’d sell you 8th generation fan subbed tapes faded to pastels with warp lines at the top of the screen. Back then, anime cons were a small niche market. But eventually, the kids who came to anime cons grew up and became a part of the industry. Anime started to become more mainstream, which got major studios and distributors involved.

    Then the MPAA got involved. And copyright lawyers for intellectual property, like Disney and Sanrio, started to take notice. Then the internet just blew up and all kinds of stuff became pirated under Bit Torrent. The MPAA poured money in to IP takedowns. These lawyers are the new sheriffs and marshals on the Internet wild frontier, and as we know from history, these kinds of people are not always out for the best interest of the citizens. But they will claim to be, and break up any “suspicious”

    So here’s a problem. Someone sells Hello Kitty fan art. They are legally making money from an IP, and Sanrio says, “Hey, motherfucker: Bads Maru is OUR game.” This artist is a college student who made $200 from various drawings, buttons, tee-shirts and eats ramen as a daily meal. Now, Sanrio could sue them, and maybe they will, but there’s no money in that. BUT SOMEONE MUST BE PUNISHED!! So they look up the chain. This convention, who allowed them to sell their stuff, is obviously “harboring criminal activity.” So they send a cease and desist. But contrary to popular belief, cons don’t make a whole lot of money. Nobody gets paid, we have no central office, and we have some money saved up for contingency plans (like last year’s blizzard), but once you get down to it, we can’t afford the lawyers needed to defend us from the huge corporations. And when you get a cease-and-desist from Toho that some merchant in your room was caught selling unlicensed Godzilla wall scrolls… do you have six figure accounts to draw from to pay lawyers to debate law? We don’t.

    That’s why we started banning wall scrolls years ago, because there was no way we could tell the legals from the fakes; but we knew they were mostly fakes . We also banned all bootleggers, which was HUGELY unpopular. We recognized the irony: the very things that made them popular in the end were ruined by the popularity. Nowadays, we can tell legals from fakes, and we have contracts with merchants that say things they sell must be licensed to sell whatever they sell. If you sell Sanrio, you MUST have a deal with a Sanrio distributor. Don’t get me started with Toho, those people are right bastards with IP. At least we can shame them with “Ferris Bueller vs. Godzilla” from time to time.

    Just 5 years ago, Artist Alleys at various cons were mostly people doing originals. Then came the crafters. The whole artost alley/crafter/merchants lines became seriously blurred. You’ve seen it at other cons, and the merchants hate it, too. “How come I have to share space with someone making their Domo Khun hats selling them at 40% below my cost? WTF?? And they pay HOW MUCH LESS PER TABLE than we do? You stinking low-lifes!”

    [Sigh]

    Is it a CYA move? Yes. I won’t lie to you. But we can’t just snicker like 4chan posters, “come and get us hahahahaha” and ignore when we get some multimillion dollar lawyers looking around who would feed their own grandmother to the Ravenous Bugblatter Beast of Traal. We know the irony, we know it’s not popular, and we’d rather not do it. Frankly, I think the MPAA and RIAA should rot in hell (as a personal opinion).

    You can also bring up the argument, “Other cons do it…” but we’re not other cons. They have their own decisions and experiences. You mention the AMVs and Cosplay. They don’t make a profit. In fact, they don’t make ANY money, which gives them more wiggle room in the gray legal arena. And those cosplayers who make a living at it… you notice they mostly do original stuff? There’s a reason. If Janet-chan the Ultimate Cosplayer made money selling pictures of her dressed like Totoro, Disney (who distributes Ghibli) would have a FIT. But if she makes money being dressed in original stuff, and sometimes is photographed on the floor in a Totoro costume, not much can be done about that as long as she doesn’t make money off the IP. That’s how you can get away with it at Comic Con.

    “But it’s doubtful that a fifteen year old kid selling prints of Edward Elric at an artist alley table is really cutting in to the profits of Funimation.” But without Funimation’s permission, he can’t (legally). “And if it is, maybe Funimation should hire the kid. Must be doing something right.” And places like that often do. Funimation is a great bunch of people. Notice Toho never has a table? They are just awful people to deal with.

    You have any idea how hard it is to get things like ASCAP licensing to cover our asses for the dance? Or to get permission from movie studios to show films in our video rooms? We have special relations with them to do this, and “letting people copy our IP and sell it for their own profit” is not part of that.

    “Anime cons used to be a haven for fan created work.” They still are, but for original works, like yours. Now in your case, you have original IP. But what would you do if someone took Puppycow, made it into a Flash cartoon, or a felt hat, and made money off of it without your permission or attention? You’d be pissed. You’d be “Puppycow is MINE!” What if Nickelodeon picked it up from this bozo, and suddenly, without notice, Puppycow was their new hit show? You’d lawyer up. But in reality, how much money do you have, Jamie? How much does Time Warner have? You might be fucked. Yes, it would be unfair as all hell. But it happens all the time, sad to say. Plus, you have people who would CLAIM Puppycow was really a combination of something Catdog or Cow and Chicken did, and you’d say, “WTF, no no no!” Now, how you’d feel about all this versus how Toho feels when Mothra is used in a Weebls-Stuff Cartoon might be different, but legally… it’s the same.

    http://www.weebls-stuff.com/songs/Tiny+Japanese+Girl/

    In summary, I agree with your sentiment and share, deeply, in your frustration. But this is the decision we have made because legally, we have to. Feel free to discuss this with me at any time, here or in person.

    - Grig Larson
    - Katsucon 17 Vice-chair
    - Katsucon 18 Co-Chair

  • http://ypcomic.com Jamie

    The Puppy Cow argument is interesting. It’s true that if a giant corporation like Warner Brothers tried to take it and turn it into a thing, I would be livid. But it’s not an exact parallel. My original point pertained to kids drawing Narutos, not giant established corporation stealing an independent IP. None of these kids drawing Naruto can compete with a large corporation.

    Unfortunately, I’m arguing a losing point. You’re following the letter of the law and it’s the right, legal thing to do. I don’t agree with the stance on parody, but I don’t know enough to make a cogent argument.

    What really irritates me is that these are licensors who are threatening with law suits, not the original creators. I’d really like to hear from the Japanese creators what they think.

  • http://punkadyne.wordpress.com Grig Larson

    > It’s true that if a giant corporation like Warner Brothers tried to take
    > it and turn it into a thing, I would be livid.

    Well, what if you found out some kid in Jersey, from his own print, made 20 Puppycow stuffed animals and sold them at a con you’ve never heard of? Made only $160 in profit? I don’t ask as a “so there!” statement, but as a kind of, “this is how the studios see it.”

    > I’d really like to hear from the Japanese creators what they think.

    I am more bitter. I’d like to know if they are even AWARE. I have heard many stories about creators of comics and things like that finding out their studio is suing some kid who didn’t have any money, so they sue the parents. Many music artists are finding out just how bad the studios are to their fans often way too late.

    And this whole IP thing had the worst timing. Katsucon has had two years of bad relations with artists due to amazing strokes of bad luck and a few people who made poor decisions, and I kind of feel like that kid in Pulp Fiction who says, “I just want you to know how sorry we are that things got so fucked up with us and Mr. Wallace. We got into this thing with the best intentions…” At K17, we’re having a meeting with artists to get things sorted out: talk about the IP thing, some of the booth problems, communication issues, and what we want to accomplish for next year. Kara is right, she does have my ear, and we’re friends with Impink and Fischer, so we’re going to do what we can to unfuck this whole thing.

    If you can’t make that meeting, send me mails, or catch me at AMA, AnimeUSA, Otakon, Intervention, or at a SuperArtFight.

    Again, thanks for your post.

    - Grig

  • Tom Stidman

    There are very good thoughts on both sides of this issue. Grig, It seems like you are getting pressure from someone outside of the con on this. If I can get your attention at con, I want to talk more about it. I agree on the Parody point though. Parody is protected speech. If an artist like Kevin Bolk got kicked out of Katsucon for selling parody comics (he also sells webcomics and will probably leave the parody stuff at home), he would simply need to call CBLDF and he would probably win the case on Parody is protected speech.

  • http://ypcomic.com Jamie

    I’ll be there the entire weekend. Let me know when the meeting is and I’ll be there. I’d love to see this get worked out so that everyone is happy.

  • http://punkadyne.wordpress.com Grig Larson

    I have a meeting time and place, but I won’t commit to it in public because it’s changed three times in the last two months. We still have to play “musical function rooms” with the guests up until the last day (as flights and guest schedules change). The LAST thing I want is people to say “B-but you said it would be 9pm in Live 4 and you moved it up to 5, and I missed it. You son-of-a-bitch, you’re AVOIDING us!” Because that’s what it’s looked like recently with communication black holes.

    Christine and I are running Katsucon 18 for 2012 as co-chairs. Christine used to run the FanTek art shows for nearly ten years. My mother was an artist. Believe you me, this has personally hurt us to watch, and there was little we could do for reasons I can’t go into (and really, are pointless to mention now). This is one of our biggest priorities, and a lot of K17 will be listening to the artists and listening to your ideas, sharing our woes and your woes, and coming to an agreement that is sane and even better: way in advance.

    The meeting should be in the program book, but if not… find me. “Page a chair.” Something. And we’ll both be at various cons at the Katsucon table.

    - Grig

  • http://ypcomic.com Jamie

    @Grig, I’ll try my best to track it down.

  • Finni

    Cosplay and AMVs can be argued as non-profit and therefore grey area, that’s really understandable. You can argue that these individuals are using derivative works for personal gain, although not in the monetary sense, and therefore violating copyright but that’s really starting to split hairs. Here’s what has been brought up on Katsucon forums and has been pushed aside due to the heated fan art ban debate:

    WILL FAN ART/DERIVATIVE WORKS BE BANNED IN THE DEALER’S/VENDOR AREA?

    The regular starving artist can afford an artist alley table by saving up and investing in a show like Katsucon to hopefully make back their spendings and, just maybe, earn a little profit. Now that the new rules are placed (“clarified”) that ban fan art, a lot of that potential profit has been cut due to such incredibly bad timing and delayed communication from Katsu staff to artist. But there are a handful of artists who do make a large enough of a profit margin off of fan art sales to purchase a Dealer’s/Vendor booth and suddenly they are capable of bypassing fan art/copyright laws?

    I don’t understand if IP laws and regulations are being enforced so strictly on artists in the AA, why shouldn’t the same rules be applied to those in the dealer’s hall? There are very clear rules against bootleg material replicating exact copies of licensed goods, but I see unlicensed derivative works in various DH around conventions all the time, such as unlicensed cosplay goods (often handmade), hats, doujinshi imported from Japan (those are fan art), jewelry (more rarely), and also the budding trend of artists who have the cash to invest in a DH booth space to attempt to circumvent AA rules.

    It’s great to take a moral stance and keep everything strictly legal and by the book. But what kind of moral example are you setting if paying a premium rental space allows you to be above the law? Why are doujinshi sales allowed by a third party in the Dealer’s Hall and not allowed in AA by the primary artist?

    I’ve never heard of a convention changing a dealer contract less than 40 days before a convention like what Katsucon did to its artists. Are these no-fan-art rules going to be enforced within the Dealer’s area as well?

    I’ll be looking forward to the artist meeting.

  • http://punkadyne.wordpress.com Grig Larson

    After a lot of legal discussion, here’s the official statement we released yesterday, and should be considered the ultimate statement about all this that supersedes any statement made by me or anyone else:

    http://www.katsucon.org/exhibits/katsucon-marketplace-information/#announcement

    —-
    The TL;DR summary:

    • Katsucon’s policy now and forever is to have zero tolerance towards copyright violations as part of any of our convention functions.
    • If a *valid copyright holder* (the actual owner) finds, in any venue of the convention, a perceived violation of their intellectual property and thus makes a complaint to our staff, we will act on that complaint and request that the offensive materials be removed from public display.
    • BUT Katsucon is not an enforcement arm of any individual media company or copyright holder by default. We will not act until an official complaint is made by the actual copyright owner.

    So, if Jamie sees some yahoo who made a copy of Puppycow without his permission, and complains to us, we’ll make the artist remove them. If an artist with a grudge says, “That’s Jamie’s Puppycow,” and Jamie does not contact us, we’ll do nothing. This is what we’ve been doing for a very long time, but this year communication got completely fouled up, partially due to a head of AA having some personal emergencies, who got replaced, and then THAT guy had some personal emergencies (I can’t comment, but trust me when I say these were legitimate: both very much health and job related out of their control), and the chairman taking over. There was also, and I cannot stress this enough to what bad timing this was, a formal complaint from a private party as to our perceived tolerance of infringements of intellectual property in the Artist Alley. And when a formal legal complaint and threat is received by the Katsucon Board, we have to take it seriously. In the end, it was just a pointless sabre-rattling by someone who did not have any right by the original copyright holder to do so.

    I am posting this here because we want this spread around, and we posted it on the website, forums, and to artists but I want to make sure nothing slips between the cracks and we don’t miss anyone.

    I also want to stress that we consider the artists VERY important, and we’re really sorry about this mess.

    - Grig

  • http://sparebrainsgames.com Wayne Zombie

    Came across an article over the weekend where they’ve determined that internet piracy of Japanese anime vids actually BOOSTS sales. They’ve been saying this about music pirates in the US for a long time, that most people are actually sampling and they’ll delete what they download if they don’t like it, but the biggest downloaders are also the biggest buyers.

    The article from Torrentfreak.com

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