When Holding On Means Letting Go: Why Fair Use Should Extend to Fan-Based Activities

Nathaniel T. Noda, University of Hawai'i William Richardson School of Law

Abstract

The recent surge of popular interest in anime and manga, or Japanese animation and comics, brings with it distinctive examples of what may be dubbed “fan-based activities,” which indicate how courts can adapt the fair use analysis to best balance the public’s access to creative works with the interests of copyright holders. This paper examines the effects of fan-based, infringing activities like doujinshi (fan-made comics) and fansubs (fan-subtitled anime episodes) on the creative and economic incentives of the copyright holder, and explains why copyright holders generally refrain from enforcing their rights against those activities. Based on those effects, it not only appears to be in the interest of the public, but also within the copyright holder’s economic and creative interests to foster, or at least abide, fan-based infringement. The paper ultimately contends that courts should refine the current judicially constructed fair use analysis to account for the unique benefits entailed by fan-based activities.