Lost in translation: Anime, moral rights, and market failure

Boston University Law Review

Volumn 88, Issue 3, 2008, Pages 709-744

  Daniels, Joshua M ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 46849094538     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (234)

1. Press Release, 4Kids Entertainment, Inc., 4Kids Entertainment Unveils All-New FOX BOX for Fall '04 (June 8, 2004), http://www.animenewsnetwork.com/ press-release/2004-09-01/4kids-entertainment-announces-new-lineup-for-fox-box- fall-2004.
2. For a representative Internet message board posting, see Posting of HAX to Anime News Network Forum, http://www.animenewsnetwork.com/bbs/phpBB2/ viewtopic.php?t=7665&postdays=0&postorder=asc&start=30 (June 8, 2004, 15:09 EST) ("This truly sickens me to my core. If the series is rained, I will be boycotting it. [E]-mails have already been sent expressign [sic] my distaste for their decision[.]"). Not all of the postings to this forum were uniformly condemnatory, however; some fans appeared ready to take a more hopeful "wait and see" approach.
3. See Posting of Louie-kun to Anime News Network Forum, http://www.animenewsnetwork.com/bbs/phpBB2/viewtopic.php?t=7665&postdays= 0&postorder=asc&start=60 (June 8, 2004, 18:09 EST) ("I'm just gonna hold off until 4[K]ids actually says something about the [DVD]s, instead of going berserk and calling 4[K]ids the antichrist.. . . Just take a deep breath, and relax.").
4. See Posting of Hotaru to Anime News Network Forum, http://www.animenewsnetwork.com/bbs/phpBB2/viewtopic.php?t=7665&postdays= 0&post order=asc&start=45 (June 8, 2004, 16:44 EST).
5. See generally One Piece Episode Comparisons - Differences Between the English and Japanese Anime: Excluded Edits, http://opguide.bravehost.com/ excluded_edits.shtml (last visited Apr. 22, 2008).
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. See One Piece Episode Comparisons - Differences Between the English and Japanese Anime: Episode List, http://opguide.bravehost.com/ episode_list.shtml (last visited Apr. 22, 2008).
12. See John Oppliger, Ask John: Does One Piece Still Have a Future in America?, ANIMENATION, Apr. 12, 2007, http://www.animenation.net/news/askjohn.php?id=1536 ("The authentic Japanese One Piece is an absorbing, humorous adventure series. 4Kids' One Piece is a blatantly artificial and shameless commodity constructed by committee and totally out of touch with the show's true audience and the show's original charm.").
13. 4Kids Cancels One Piece Production, ANIME NEWS NETWORK, Dec. 6, 2006, http://www.animenewsnetwork. com/news/2006-12-06/4kids-cancels-one-piece-production.
14. See Luke Campbell, FUNimation Acquires One Piece License, ANIME DISTRICT, Apr. 15, 2007, http://www.animedistrict.com/ news.php?id=220.
15. See generally Sean Leonard, Celebrating Two Decades of Unlawful Progress: Fan Distribution, Proselytization Commons, and the Explosive Growth of Japanese Animation, 12 UCLA ENT. L. REV. 189, 198 (2005) (discussing early releases of heavily edited dubs of anime series released in the United States);
16. Chris Bourke, End of Anime: English Dubs, ANIME NEWS NETWORK, Aug. 9, 1998, http://www.animenewsnetwork.com/ editorial/1998-08-09.
17. FUNimation's CEO reported that he and his company "wanted to release a more true to the original dub straight to video, [but] he and his company's decisions were primarily dictated by Saban, who was their distributor to the syndication networks." John Allen, Dragonball, Z, GT Interviews: Bruce Faulconer, http://www.myfavoritegames.com/dragonball-z/Info/Interviews/ Interviews-BruceFaulconer.htm (last visited Apr. 22, 2008).
18. Dragon Ball Z Encyclopedia II: Censorship Issues, http://www. experiencefestival. com/a/Dragon_Ball_Z_-_Censorship_Issues/id/4996560 (last visited Apr. 22, 2008).
19. See Dragon Ball Z (TV) - Anime News Network, http://www. animenewsnetwork.com/encyclopedia/anime.php?id=244 (last visited Apr. 22, 2008);
20. The Official Dragon Ball Z Website: History of DBZ, http://www. dragonballz.com/index.cfm?page=history (last visited Apr. 22, 2008).
21. Japan Animation Industry Trends, JAPAN ECON. MONTHLY, June 2005, at 2, available at http://www.jetro.go.jp/ en/market/report/pdf/2005_35_r.pdf.
22. Bianca Bosker, Manga Mania, WALL ST. J., Aug. 31, 2007, http://online.wsj.com/article/SB118851157811713921.html?mod= googlenews_wsj.
23. Japan Animation Industry Trends, supra note 18, at 3.
24. Id. at 2.
25. Id.
26. Id.
27. Id.
28. Id.
29. See id. at 3.
30. Frank Sanchez, Anime University - LING 102: Sub and Dub Basics, http://www.animeinfo.org/animeu/ling102-p.html (last visited Apr. 22, 2008).
31. Id.
32. See SUSAN J. NAPIER, ANIME FROM AKIRA TO PRINCESS MONONOKE: EXPERIENCING CONTEMPORARY JAPANESE ANIMATION 6 (2001);
33. Antonia Levi, The Americanization of Anime and Manga: Negotiating Popular Culture, in CINEMA ANIME: CRITICAL ENGAGEMENTS WITH JAPANESE ANIMATION 43,45-46 (Steven T. Brown ed., 2006).
34. See Japan Animation Industry Trends, supra note 18, at 2.
35. For example, One Piece, discussed supra notes 1-13 and accompanying text, already had an American community of fans who protested vociferously as soon as 4Kids announced that it had acquired the U.S. release license. See also Leonard, supra note 14, at 216-17.
36. Leonard, supra note 14, at 196-97.
37. Id. at 197.
38. Id.
39. Id.
40. Id. at 218.
41. Some commentators have noted that the term "moral rights" is a rather poor translation of the French phrase "le droit moral." See, e.g., Patricia Alexander, Comment, Moral Rights in the VARA Era, 36 ARIZ. ST. L.J. 1471, 1472 & n.9 (2004).
42. "The adjective 'moral' has no precise English equivalent, although 'spiritual', 'non-economic' and 'personal' convey something of the intended meaning." 3 MELVILLE B. NIMMER, NIMMER ON COPYRIGHT § 8D.01[A] (David Nimmer ed., 2007) (quoting S. RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986, at 456 (1987)) (footnotes omitted).
43. NIMMER, supra note 37, § 8D.01[A].
44. Id.
45. Id.
46. Id.
47. See Edward J. Damich, The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors, 23 GA. L. REV. 1, 27 (1988).
48. See id. at 4.
49. See, e.g., One Piece: Survive! Bellemere, the Mother, and Nami's Family! (Fuji TV television broadcast Aug. 9, 2000) (featuring the murder of a character's family by pirates, which is the source of that character's animosity toward pirates); One Piece: The Past of the Three Swords! The Promise Between Zoro and Kuina (Fuji TV television broadcast Mar. 22, 2000) (featuring the sudden death of a character's childhood friend, which heightens that character's sense of his own mortality and contributes to his generally reckless behavior). For a more detailed discussion of the role of violence and similarly disturbing content in anime, see generally NAPIER, supra note 29.
50. See, e.g., Gundam SEED: Divine Thunder (TBS television broadcast June 21, 2003) (featuring a futuristic army executing its helpless opponents as the latter attempt to surrender, in an apparent effort to demonstrate the dehumanizing effect of war on its participants).
51. See, e.g., supra notes 4-11 and accompanying text.
52. See infra notes 62-63 and accompanying text.
53. Berne Convention for the Protection of Literary and Artistic Works art. 6bis(1), amended Sept. 28, 1979, S. Treaty Doc. No. 99-27, 1161 U.N.T.S. 36 [hereinafter Berne Convention] ("Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.").
54. NIMMER, supra note 37, § 1.12[A].
55. See 17 U.S.C. § 106A(a)(3)(A) (2000). Many commentators have doubted whether the United States is in full compliance with its Berne Convention obligations with respect to the protection of moral rights.
56. See, e.g., NIMMER, supra note 37, § 8D.02[D][1].
57. Id. § 106A(a)(1).
58. Id. § 106A(a)(2).
59. Id. § 106A(a)(3).
60. Id. § 106A(b).
61. Id. § 106A(e)(1). The statute also specifies that: Ownership of the rights conferred by [VARA] with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by [VARA].
62. Id. § 106A(e)(2).
63. Id. § 106(2).
64. Id. § 101.
65. See, e.g., Lee v. A.R.T. Co., 125 F.3d 580, 582-83 (7th Cir. 1997) (criticizing Mirage Editions, Inc. v. A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988));
66. JULIE E. COHEN ET AL., COPYRIGHT IN A GLOBAL INFORMATION ECONOMY 408 (2d ed. 2006) (presenting the moral right of integrity as analogous to the derivative work right).
67. S. REP. NO. 100-352, at 9-10 (1988), as reprinted in 1988 U.S.C.C.A.N. 3706, 3714-15.
68. 17 U.S.C. § 101.
69. But cf. id. § 203(a)(1), (3) (allowing an author to terminate the exclusive or nonexclusive grant or license of a copyright during a five-year period at the end of thirty-five years from the date of the execution of the grant).
70. See Gilliam v. Am. Broad. Cos., 538 F.2d 14, 24-25 (2d Cir. 1976) (finding that an artist whose work has been mutilated or distorted may seek redress under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (2000)).
71. Recently, however, the continuing vitality of Gilliam has been called into serious doubt. See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 32-37 (2003) (rejecting a claim for nonattribution and reverse passing-off under section 43(a) of the Lanham Act without addressing the validity of Gilliam);
72. NIMMER, supra note 37, § 8D.04[A][2];
73. Michael Landau, Dastar v. Twentieth Century Fox: The Need for Stronger Protection of Attribution Rights in the United States, 61 N.Y.U. ANN. SURV. AM. L. 273, 297 (2005).
74. But see Justin Hughes, American Moral Rights and the Dastar Opinion, 2007 UTAH L. REV. 659, 692-95 (arguing that Gilliam and Dastar are distinguishable).
75. See, e.g., Choe v. Fordham Univ. Sch. of Law, 920 F. Supp. 44, 48-49 (S.D.N.Y. 1995);
76. Playboy Enters, v. Dumas, 831 F. Supp. 295, 316-17 (S.D.N.Y. 1993);
77. Lish v. Harper's Magazine Found., 807 F. Supp. 1090, 1107-08 (S.D.N.Y. 1992);
78. Jaeger v. Am. Int'l Pictures, Inc., 330 F. Supp. 274, 280 (S.D.N.Y. 1971).
79. See notes 12-17 and accompanying text.
80. The Japanese creators also bear these reputational costs, albeit somewhat indirectly. If the first dub has created a lingering negative impression of the series, the second dub is less likely to be profitable, and thus the creators will collect fewer royalties. These reputational costs may also adversely affect the success of any other series the creators wish to license for U.S. distribution. See Henry Hansmann & Marina Santilli, Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis, 26 J. LEGAL STUD. 95, 104-05 (1997).
81. See Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600, 1613 (1982).
82. Cf. id. The kind of market failure discussed herein differs from that which Professor Gordon discusses. In the context of anime editing rights, the arguable market failure is that the market facilitates or encourages undesirable consensual exchanges, not that it precludes desirable ones from happening.
83. Id. at 1607-08.
84. See Japan Animation Industry Trends, supra note 18, at 7.
85. Although the creators' works were first authored or fixed in Japan, they still enjoy copyright protection under U.S. law. 17 U.S.C. § 104(b)(2) (2000);
86. see also id. § 101 (defining "treaty party" and "international agreement").
87. It is, however, possible that the Japanese creators are not as economically dependent on the dub companies' services as the dub companies are on the creators' permission. Unlike the dub companies, who have structured much of their business around the adaptation of foreign television programs for the U.S. market, see, e.g., About ADV Films, http://www.advfilms.com/about- adv-films.aspx (last visited Apr. 22, 2008);
88. FUNimation: Our Shows, http://www.funimation.com/f_index.cfm?page=props (last visited Apr. 22, 2008), the Japanese companies could solely look to the domestic Japanese market for profit. However, since there is substantial profit to be realized in the U.S. market in the form of royalties and merchandizing, it is also likely that the creators view the potential benefits of a U.S. release as far too great to be foregone.
89. Miyazaki Hayao, however, is a notable exception. Following the 1986 release of his animated film, Nausicaä of the Valley of the Wind, as the heavily edited Warriors of the Wind in the United States, Miyazaki refused to release his films in western markets for more than a decade. He finally agreed to release his films through Disney on the condition that Disney may not delete or substantially alter any of the original footage. Laura Miller, Wizard of Light and Shadow, SALON.COM, July 10, 2003, http://dir.salon.com/story/ent/movies/feature/2003/07/10/miyazaki/index.html;
90. see also Xan Brooks, A God Among Animators, THE GUARDIAN UNLIMITED, Sept. 14, 2005, http://film.guardian.co. uk/interview/interviewpages/0,6737,1569689,00.html.
91. See Leonard, supra note 14, at 194-95, 198. The difference may stem in part from the fact that Japanese culture appears to have different sensibilities than American culture with regard to what level of sexual or violent content is appropriate for young audiences.
92. See id. at 194-95.
93. This does not appear to be a problem for dub companies or Japanese creators who only contemplate the release of an anime television series to the home video market. However, it seems reasonable to assume that, insofar as the television or cable exhibition of the anime series represents an effective form of marketing the home video release, it is probably only a relative minority of dub companies and creators who are willing to completely ignore the opportunities which television or cable have to offer.
94. See generally CHARLES D. FERRIS & FRANK W. LLOYD, TELECOMMUNICATIONS REGULATION: CABLE, BROADCASTING, SATELLITE, AND THE INTERNET ¶ 3.16 (2007) (discussing the FCC's regulation of indecent or obscene content). The broadcast of obscene or indecent material is also a criminal offense under federal law. 18 U.S.C. § 1464 (2000);
95. 47 C.F.R. § 73.3999 (2007).
96. See FCC v. Pacifica Found., 438 U.S. 726, 742-51 (1978) (upholding the FCC's action against a radio station which broadcast George Carlin's "Filthy Words" monologue as permissible under the First Amendment and the applicable statutory scheme).
97. See In re Indust. Guidance on the Comm'n's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 F.C.C.R. 7999, 8002-15 (2001).
98. The FCC does not currently treat violent content under its general indecency rubric and does not fine broadcasters or the providers of cable programming for content on the basis of violence, rather than sexual explicitness or vulgarity. See authorities cited supra notes 76-77. However, federal law has attempted to regulate violent content indirectly. In the Telecommunications Act of 1996, Congress mandated the development of a content rating system for television programming.
99. See Telecommunications Act of 1996, Pub. L. No. 104-104, § 551(b)-(e), 110 Stat. 56, 140-42 (codified as amended in scattered sections of 47 U.S.C);
100. see also In re Implementation of Section 551 of the Telecomms. Act of 1996: Video Programming Ratings, 13 F.C.C.R. 8232, 8246-47 (1998) (accepting the "TV Parental Guidelines" submitted by private industry as an acceptable voluntary rating system).
101. Furthermore, the FCC requires that nearly all televisions manufactured in the United States or shipped in interstate commerce "be equipped with a feature designed to enable viewers to block display of all programs with a common rating," commonly known as "V-chip" technology. 47 U.S.C. § 303(x) (2000);
102. In re Technical Requirements to Enable Blocking of Video Programming based on Program Ratings: Implementation of Sections 551(c), (d), and (e) of the Telecomms. Act of 1996, 13 F.C.C.R. 11248, 11255-56 (1998);
103. see also 47 U.S.C. § 330(c). Thus, the federal regulatory scheme works to regulate the transmission of violent content over broadcast and cable television indirectly by facilitating parental censorship.
104. Indeed, a significant intended consequence of the FCC's legally mandated V-chip regime, see discussion supra note 78 and sources cited therein, is that parents have the power to block objectionable programming from entering the home, by programming their televisions to lock out any program with, for example, a "TV-14" or higher rating. Even if it is not per se unlawful to broadcast cartoons with violent content, such programming will receive a stronger content rating under the TV Parental Guidelines, and consequently, may reach a significantly smaller audience than would tamer programming. This result may ultimately mean less revenue for the dub company and for the creators.
105. Cf. Halicki v. United Artists Common's, Inc., 812 F.2d 1213, 1213-14 (9th Cir. 1987).
106. A number of activist groups, composed in large part of parent-activists and conservative or religious groups, have already dedicated themselves to this cause. See, e.g., Morality in Media, Inc., http://www.moralityinmedia. org/ (last visited Apr. 22, 2007);
107. Parents Television Council - Because Our Children Are Watching, http://www.parentstv.org/ (last visited Apr. 22, 2008).
108. Onigiri, or rice balls, are a common Japanese delicacy; for more information and instructions on preparing onigiri, see Just Bento: Onigiri on Parade, http://justbento.com/handbook/bento-basics/onigiri-on-parade- guide-onigiri-omusubi-rice-ball-shapes-types-and-fun (last visited May 2, 2008).
109. For more information on kirin, a unicorn-like figure of Chinese origin, see The Obakemono Project: Kirin, http://www.obakemono.com/obake/kirin/ (last visited May 2, 2008).
110. For more information on tanuki, a common mischievous character of Japanese folklore based on the indigenous raccoon dog, see The Obakemono Project: Tanuki, http://www.obakemono.com/obake/tanuki/ (last visited May 2, 2008).
111. See discussion supra note 74.
112. See also Anime News Network, Encyclopedia Anime, http://www.animenewsnetwork.com/encyclopedia/anime.php (last visited Apr. 22, 2008) (providing broadcast and video release information for all anime series and movies).
113. A casual glance at most any local programming schedule reveals that cable is a more typical outlet for anime series than television because of cable programming's comparatively lighter programming restrictions.
114. See FERRIS & LLOYD, supra note 75, ¶ 8.08 (discussing the "uncertain foundation" of the FCC's efforts to regulate obscene or indecent cable programming). Typically, these series are also shown very late in the evening to alleviate regulatory and parental concerns that young children will be exposed to adult themes; for example, as of this writing, new U.S. episodes of Bleach currently air on the Cartoon Network at 1:00 A.M. on Sundays.
115. Japan Animation Industry Trends, supra note 18, at 7.
116. Cf. Gordon, supra note 66, at 1607.
117. Externalities do not necessarily lead to market failure, however. If the parties, upon internalizing all the externalities generated by the transaction, would find that the cost of correcting for the externalities would be higher than suffering whatever loss is caused by the externalities themselves, then the presence of the externalities is unlikely to affect the parties' incentives or behavior, and thus there will be no market failure. Cf. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 3.10, at 71 (6th ed. 2003).
118. ROBERT S. PINDYCK & DANIEL L. RUBINFELD, MICROECONOMICS 650-51 (4th ed. 1998).
119. Id. at 648-50.
120. See Gordon, supra note 66, at 1607.
121. See Hansmann & Santilli, supra note 65, at 105-07.
122. The fact that the costs involved are difficult to measure in monetary terms does not prove they are not economically significant. See infra notes 97-101 and accompanying text. In general, economists care about the allocation of resources, including time or mental quietude, whether or not those resources can be precisely measured in dollars, and whether or not money changes hands.
123. See POSNER, supra note 89, § 1.1, at 7.
124. It is not necessarily true that such agreements would never happen. There could be cases where the total external costs imposed by such agreements on fans and viewers are still less than the internal benefits the licensing transaction generates. One example might be the licensing and mutilation of a marginally popular anime series; perhaps there are fans and viewers out there who would object if they were consulted, but there are likely so few of them that the creators and the dub companies could theoretically compensate them with the benefits generated by the licensing agreement. The result in such a case is not market failure, but rather a Kaldor-Hicks efficient transaction.
125. See POSNER, supra note 89, § 1.2, at 13-16.
126. However, series like One Piece are unlikely to fall into that category. The relicensing transaction suggests the first licensing agreement was not the most efficient allocation of resources, perhaps because of the failure to account for the external costs the transaction generated.
127. See Hansmann & Santilli, supra note 65, at 102-05.
128. Id. at 105-07.
129. Id. at 106;
130. see also Roberta Rosenthal Kwall, The Author as Steward for "Limited Times," 88 B.U. L. REV. 685, 689 (2008) (book review) ("[A]uthors 'do not create in a social vacuum' but rather 'are influenced by special circumstances, collective and personal social and cultural experiences, and other endless untraceable processes' ...." (quoting LIOR ZEMER, THE IDEA OF AUTHORSHIP IN COPYRIGHT 112 (2007)).
131. One should also note the longstanding principle of American copyright law that the law ought not discriminate as to the level of protection afforded a work on the basis of its perceived artistic merit, since "[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits." Bleistein v. Donaldson Lithographic Co., 188 U.S. 239,251 (1903).
132. Hansmann & Santilli, supra note 65, at 106.
133. Indeed, almost all of the benefit derived from any work of art will be psychic in nature, namely the enjoyment one derives from experiencing the work, or the prestige one captures for oneself by claiming ownership over it. The market value of an original Jackson Pollock painting, for example, is generally not attributable to its utility as a cleaning rag or as kindling.
134. See PINDYCK & RUBINFELD, supra note 90, at 648-50;
135. POSNER, supra note 89, § 13.5, at 390-95.
136. See PINDYCK & RUBINFELD, supra note 90, at 650.
137. See generally Gordon, supra note 66, at 1613-14.
138. See id. at 1601,1614.
139. Id. at 1614-15.
140. Id. at 1615-18.
141. Id. at 1618-22.
142. See id. at 1622-24.
143. See id. at 1619-22.
144. See Id. at 1618.
145. See supra notes 1-17 and accompanying text.
146. Professor Gordon distinguishes a total market failure as one which prevents a socially beneficial transaction from ever happening, such as where prohibitively high transaction costs prevent the copyright owner from negotiating a license with any potential licensees. Gordon, supra note 66, at 1618.
147. An intermediate or partial case of market failure, on the other hand, is one where the failure prevents only some socially beneficial transactions from occurring. Id.
148. See id. at 1618-19.
149. See id. at 1611.
150. See PINDYCK & RUBINFELD, supra note 90, at 651-53.
151. See supra notes 1-17 and accompanying text.
152. Gordon, supra note 66, at 1612.
153. See generally Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972) (discussing how the law seeks to solve economic problems by providing different levels of protection for certain legal entitlements).
154. Id. at 1092. Property rules allow "each of the parties [to] say how much the entitlement is worth to him, and gives the seller a veto if the buyer does not offer enough." Id.
155. Id. Calabresi and Melamed also discuss the option of protecting entitlements by making them inalienable, or imposing a legal rule that forbids the transfer or destruction of the entitlement under any circumstances, notwithstanding the existence of consent.
156. Id. at 1092-93. However, inalienability would seem a poor fit for the present context, for the obvious reason that a rule of inalienability does not correct market failure but prohibits the existence of a market. This result is contrary to a fundamental goal of our copyright system: to facilitate the efficient exploitation of copyrights through consensual market transactions.
157. See, e.g., 17 U.S.C. § 201(d) (2000) (providing for transferability and alienability of copyright ownership);
158. Gordon, supra note 66, at 1612-13.
159. See 17 U.S.C. § 115.
160. Id. § 115(a).
161. Id. § 115(c).
162. See Gordon, supra note 66, at 1623.
163. Id.
164. Id. at 1623-24.
165. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 743 (1989) (citing Mills Music, Inc. v. Snyder, 469 U.S. 153, 159 (1985)).
166. See generally Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 CORNELL. L. REV. 857 (1987).
167. See Jessica D. Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 257, 311-12 (1989);
168. see also Litman, supra note 128, at 879.
169. Cf. Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37 (2003).
170. The title of a cinematic work is protectable under trademark law when it has acquired "secondary meaning," or has become sufficiently well-known such that consumers have come to associate the title with a particular author or producer. See, e.g., Warner Bros. Pictures, Inc. v. Majestic Pictures, Inc., 70 F.2d 310, 311 (2d Cir. 1934).
171. This is typically less of an issue in the music context because the analogous elements of the "covered" song, such as the title, the lyrics, or the melody, are not commonly thought to have trademark or brand significance in the minds of consumers.
172. See, e.g., Mattel, Inc. v. MCA Records, 296 F.3d 894, 901-02 (9th Cir. 2002) (finding that the use of the word "Barbie" in a song title did not infringe upon plaintiff's trademark).
173. Liability for trademark infringement generally depends on whether it is likely that consumers will be confused into mistaking the mark of the defendant for that of the plaintiff. See 15 U.S.C. §§ 1114(1), 1125(a) (2000).
174. The existence of a likelihood of confusion is typically guided by a multi-factor test. Although each of the federal Courts of Appeals has its own multi-factor test, they are all essentially similar. The Ninth Circuit's Sleekcraft test is a typical example, and considers: 1. [S]trength of the [plaintiff's] mark; 2. proximity of the goods; 3. similarity of the marks; 4. evidence of actual confusion; 5. marketing channels used; 6. type of goods and the degree of care likely to be exercised by the purchaser; 7. defendant's intent in selecting the mark; and 8. likelihood of expansion of the [plaintiff's] product lines. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979).
175. 3 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 17:6 (4th ed. 2007);
176. see also Dawn Donut Co., v. Hart's Food Stores, Inc., 267 F.2d 358, 367 (2d Cir. 1959).
177. MCCARTHY, supra note 134, § 17:5.
178. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).
179. See, e.g., Bayer Co. v. United Drug Co., 272 F. 505, 512 (S.D.N.Y. 1921) (holding that ASPIRIN had become a generic term for headache medicine).
180. MCCARTHY, supra note 134, § 17:8.
181. See Gordon, supra note 66, at 1618-22.
182. Id. at 1614.
183. 17 U.S.C. § 107 (2000). Section 107 prefaces the four factors by providing paradigmatic examples of the fair use of a copyrighted work, which include reproduction "for purposes such as criticism, comment, news reporting, teaching ... scholarship, or research."
184. Id.
185. Fansubs are usually distributed for free; if any money changes hands at all, which is increasingly uncommon in the age of the Internet, it is almost always solely to reimburse necessary expenses. See Leonard, supra note 14, at 197, 218-21;
186. supra notes 31-36 and accompanying text.
187. Although it is often noted that the defendant's lack of "transformative" purpose does not foreclose the fair use defense, "the more transformative the new work, the less will be the significance of other factors .. . that may weigh against a finding of fair use." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
188. See id. ("The central purpose of this investigation is to see .. . whether the new work merely 'supersede[s] the objects' of the original creation." (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841)));
189. Castle Rock Entm't v. Carol Publ'g Group, Inc., 150 F.3d 132, 142-43 (2d Cir. 1998).
190. See Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 563 (1985).
191. See Campbell, 510 U.S. at 590 (stating that the fourth factor requires the court to look at the market effect that would arise from widespread use of the work and not just the actions of the particular defendant);
192. Harper & Row, 471 U.S. at 568.
193. See Gordon, supra note 66, at 1618-19.
194. See id. at 1602.
195. See discussion supra notes 130-39 and accompanying text.
196. See 17 U.S.C. § 107 (2000).
197. H.R. REP. NO. 94-1476, at 65 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5679. Given the highly fact-specific and often indeterminate nature of the fair use inquiry, it comes as little surprise that judges in copyright cases have routinely described the doctrine as "the most troublesome in the whole law of copyright." Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939);
198. COHEN ET AL., supra note 58, at 530.
199. See discussion infra notes 155-56 and accompanying text.
200. H.R. Rep. No. 94-1476, at 66, as reprinted in 1976 U.S.C.C.A.N. 5659, 5680.
201. Id. ("Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.").
202. 17 U.S.C. § 107 (2000).
203. Id. § 101.
204. H.R. Rep. No. 94-1476, at 65-66, as reprinted in 1976 U.S.C.C.A.N. 5659, 5679-80.
205. See, e.g., Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 562-63 (1985) (finding that defendant's bad faith or inequitable conduct in obtaining the copyrighted work weighed against a finding of fair use).
206. Arguably, the courts could not ignore the fair use factors listed in the text, since the statute commands that its analysis "shall include" those factors as considerations. 17 U.S.C. § 107 (emphasis added). However, there is generally no consensus regarding "how much weight should be given to any one of the four factors, what additional factors should be considered, or whether any one of the factors is a sine qua non for a finding of fair use." Gordon, supra note 66, at 1604.
207. See discussion supra notes 127-29 and accompanying text.
208. See PINDYCK & RUBINFELD, supra note 90, at 559-61.
209. See id.
210. See id.
211. This is essentially the result that would occur if a more traditional version of the fair use doctrine were applied to this situation. A blanket grant of immunity from infringement liability would destroy the incentives the copyright system seeks to protect. See Gordon, supra note 66, at 1618-19. That is why it is so crucial to modify the fair use doctrine so as to avoid destroying all incentives to enter into anime licensing transactions. Such modifications are explored below.
212. Id. at 1615-18.
213. See supra notes 1-17 and accompanying text.
214. See PINDYCK & RUBINFELD, supra note 90, at 376-78, 381-86;
215. cf. POSNER, supra note 89, § 9.5, at 283-84.
216. The availability of price discrimination between the two versions would generally facilitate an efficient anime licensing market. The dub companies would not be forced to produce an uncut dub where the public does not demand it, but would be forced to give those consumers who demand nothing less a chance to prove it by paying a premium. See PINDYCK & RUBINFELD, supra note 90, at 381-86;
217. cf. POSNER, supra note 89, § 9.5, at 283-84.
218. FUNimation was acquired in 2005 by the Navarre Corporation, a media and entertainment conglomerate, so it is somewhat hard to tell exactly how good business has been since their finances were merged with Navarre's. Some
219. Acquisition of FUNimation Productions Ltd., Mar. 26, 2008, available at MERGERSTAT M & A DATABASE, Deal No. 324941, https://www.mergerstat.com/newsite/.
220. See supra note 86 and accompanying text; see also FUNimation Entertainment, What's on TV, http://www.funimation.com/f_index.cfm? page=tv (last visited Apr. 22, 2008).
221. See supra notes 73-86 and accompanying text.
222. See Leonard, supra note 14, at 211-17.
223. See Justin Sevakis, Why Dub-Haters Are Killing Anime, ANIME NEWS NETWORK, Nov. 9, 1998, http://www.animenewsnetwork.com/editorial/1998-11-09 ("There is probably no plague more infectious in the world of American anime fandom than that of hating dubs with a passion. It's not hard to see why: most dubs sound horrible, with bad acting, direction, and sloppy rewrites."). Another, related reason why the heavily edited dub may fail in the U.S. market might be that a large part of what makes most anime attractive to viewers is the fact that it is markedly different from most other forms of Western programming; to the extent that dub companies, like 4Kids, strive to remove this distinctivess, they risk eliminating the special cachet that made the series appealing in the first place.
224. See NAPIER, supra note 29, at 9-10.
225. A related advantage to the rule's objectivity is that it allows courts to avoid running afoul of copyright law's longstanding non-discrimination principle. See supra note 99.
226. The court could also consult its own experts if it doubts the credibility of those which the litigants have offered. See FED. R. EVID. 706(a).
227. See, e.g., Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law, 41 HOUS. L. REV. 263, 281-82 (2004);
228. Landau, supra note 61, at 314.
229. See generally Hansmann & Santilli, supra note 65.
230. See id. at 106.
231. See Gordon, supra note 66, at 1607, 1613-14.
232. See id. at 1618-19.
233. See discussion supra Part I.
234. See Leonard, supra note 14, at 216-17.