Capitalism Ho!

I’ve been listening to the rumors swirling around FB and Twitter about a new rule in Katsucon 17 that bans the sale of fanart that depicts characters which violate US copyright and IP laws. The exact wording, meaning, and validity is still fuzzy to me, as I don’t have direct access to the staff communications array (someone deleted me off the list when I could not go in 2009) so I cannot confirm any of this, but I’ve been told that other cons have considered or already implemented this rule.

Allow me to be candid US corporate anime industry, fuck you.

When I joined Art Show in 2004 (Katsu 10) we packed the room for the next few cons, even with the hotel changes. We had many long auctions of really good artwork. All of the custom artwork hanging in my apartment are from artists who submitted their work and I purchased. I also have had several artists in AA do custom drawings for me. Above anything I’ve ever enjoyed about the anime fandom are the artists who work hard to produce quality work worth buying.

In the past few years though, notably last year, we had a sharp decline in artwork submitted. Perhaps it’s the economy, but I think cons are starting to become unfeasible for the average con goer. There are so many new and upcoming cons competing with larger established cons, people choose what is local or what is cost-effective, and I have a feeling this year many of the giants will again be passed up in favor of smaller venues. I also expect less artwork to be submitted this year, and probably the same prints as the last few years. Already several artists have expressed dismay for this rule, if they can’t draw what they love, why bother going? Of course this won’t affect webcomic artists because they have their own character merchandise to sell, but for the average fanartist, what is the point? Sure you can do original characters, and I’m still interested to see what comes from that, but I enjoy the one or two pieces done of something that aired this past season, or the homage to a series or game done well (the Bowser Soviet-style piece I have up on my wall behind me) Now you are saying none of that can happen?

I don’t know about you, but I enjoy watching artist’s faces light up in complete unabashed joy at Art Auction when their piece goes for tens to hundreds of dollars that they didn’t expect, and it really pains me that cons have to bow down to this sort of pressure from an industry that fears being undermined by its fans because they can’t be bothered to turn their own profit on official merchandise. You are importing fucking cartoons, not owning them, and if you are mad about piracy and all, then reinvent the wheel and make it profitable again, partner with Netflix and stream anime out to everyone, make Crunchyroll not suck and work with Japanese companies to get recently aired anime to us faster. We have shit tons of technology to make new things happen and yet these companies act like the jews at Disney and continue to protect an outdated business model meant to sustain their company 6+ years ago. GET. WITH. THE FUCKING. TIMES. Yes, I mad.

All I know is, if this rule turns out to be true and in effect, this year will be the last year I work with Katsucon. I was already almost out the door after the shit in 2008, 2009 what a fucking joke, and 2010 was lackluster at best. The Gaylord is a nice place, but it’s expensive and offers few options around it, if I wasn’t staff, I wouldn’t bother. I came to staff this con as a favor for my good friend Rich, and after he left I should have taken the hint and left too, but hey, I stick around for the artists and their art, and I’ve met some awesome people I wouldn’t trade away, not to mention my fellow staff members who are awesome as fuck, and I’ll miss them, but if the spirit of the artist goes, I go.

Edit 1/7/2010 858a It seems that the rumor has been confirmed false, for now. I’m retaining this post anyway, because it will happen eventually, maybe not this or next year, but my criticism of the industry and how it conducts business with fans has always been shaky and this just reinforces it. Of course, this also reinforces my criticisms of convention organizations and their staff, the larger they get, the more broken they become. Another time perhaps.

Edit 1/26/2010 646p This post seems to have gotten around a little further on the internets, which is cool. I should point out that at this point, this is still considered a rumor as I’ve yet to hear any official word from anyone in regards to it. The position of my direct head, of Art Show, is that they have been slowly implementing a policy on licensed works the past couple of years. As I assume licensed refers to US companies, specifically Funimation (who else is left anyway, right?) the ones who will be affected likely the most by this are artists who draw from the popular series such as “The Big 3” (Naruto, One Piece, and Bleach) as well as other widely seen series. It probably means that if you’re going to be submitting art from series that have aired in the past few seasons, like Panty and Stocking, you likely aren’t going to have a problem. Hell, I’d prefer new stuff out there anyway for that matter.

Also, in the event some higher-up Katsucon staff members see this and decide that I am off my rocker, inappropriate, or whatnot, the punishment is mine, but remember, this sort of thing shouldn’t even HAVE to get around the internet, this sort of thing should be well-defined and stated on the site in plain language for everyone to see.

Anyway, don’t read too much into much of what I say, I often get jaded and angry at what I perceive to be an antique-industry that is trying to keep a grip on the American convention scene because they would go under otherwise, which is sad because in this day and age, anime could be making a killing in a Netflix-style distribution system with all sorts of extra merchandise systems and social networking for fans to watch, read, buy, and converse with others on their favorite series without having to pay for companies to license shit no one even cares about. But this is a topic for a post I have in draft right now, perhaps later tonight.

Edit 2/2/2010 812a A commenter on my blog here copypasta’d an email from Katsucon’s President and 2011 Chair for all artists in AA this year. Skipping the TLDR up top, we get to the bottom yogurt goodness…


Now, on to the issue that has sparked some very lively debate.

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;

If you want to read the full text, and read other information about the actual laws, you can find it here.
http://www.copyright.gov/title17/
http://www.copyright.gov/help/faq/faq-general.html
http://www.uspto.gov/faq/trademarks.jsp

Now, we are not Intellectual Property lawyers, but we have consulted them. The following is our understanding of the Code.

By definition, fan art is derivative work. You are creating something based on something else. As stated in the code, only the copyright owner is allowed to create such derivative works. However, the owner CAN give permission to someone else to create derivative work. So if you get the owner’s permission, you can create all the fan art of that particular work that you want.

It does not matter whether you produce one copy or a thousand copies; fan art is still derivative work.

It does not matter if you change the style or setting for a particular character. It is still a derivative work of that character.

It does not matter what media you are using – bookmark, keychain, T-shirt, etc; it is still a derivative work of the character depicted.

A common defense for fan art invokes “fair use”. Section 107 of Title 17 defines fair use as “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research”. Fair use also specifically refers to the reproduction of a particular copyrighted work. It does not apply to derivative works, and therefore “fair use” cannot be applied to fan art.

As an interesting side note, the Code makes no mention of “parody” whatsoever. But a parody is still considered to be a derivative work, and so it is protected by the copyright.

There is also no provision in the Code for “personal use”. So even if you never show a derivative work you create to anyone, it is still technically a violation of the copyright.

Similar to fair use, “Work for Hire” has been used as a defense for commissions of fan art. True, a commission is work for hire. But work for hire is defined as “a work prepared by an employee within the scope of his or her employment”. What this means in terms of copyright is that the creator of the work cannot claim a copyright on the work. The copyright belongs to the person who commissioned the work. But again, work for hire does not apply to fan art. The fan art is still a derivative work regardless of why or for whom it is created.

But work for hire does bring up an interesting point for original art. When you do a commission, the person who commissioned the art is the copyright owner, not you. This means that even though it is original art, you cannot turn around and sell prints of that art, unless you get permission to do so from the person who commissioned the art.

Now, given all of that legalese …

Katsucon is not an enforcement agency, nor are we responsible for anything being sold in the Marketplace. Only you are responsible for what you are selling. True, we don’t want the convention to be shut down; but we don’t our attendees getting hauled off either. We will only take action when it is necessary; conversely, when it is necessary, we will definitely take action.

So for example, if you just happen to have a book of samples including fan art in your backpack under the table, we’re not going to bother you about it because we won’t know about it. We’re not going to search your belongings looking for copyright violations.

On the other hand, if that same book of samples is sitting out on your table, opened to an image displaying fan art, that would be a problem. So don’t leave an open book containing fan art laying around.

Similarly, we really can’t stop you from accepting commissions. When the commission is made, the art does not exist yet, and so there is no copyright violation yet. You just can’t create the commissioned art while you are at the convention.

There are ways to skirt the fan art issue, by making your art distinct from the copyrighted version. Using Naruto as an example:
Use a different headband, without the logo (trademark), and change the color of his hair and clothes. Then you would be creating something inspired by another work, but that is not truly a derivative work. It should work in theory, but again, I’m not a lawyer. So take this postulation with the proverbial grain of salt. 🙂

Lastly, to quote a post from the forums:
“It is my hope that moving forward, Katsucon and it’s (most likely) no fan art policy will kickstart the original english language manga-inspired graphic novel scene. How cool would it be if Katsucon was the place to go to find amazing original art and graphic novels? It would be like a mini-comic con and I can SO get behind that!”

YAY! Somebody actually gets it! 🙂

It was good of Paul to finally step in and explain everything to everyone, my only mention would be that this needed to have been done a lot sooner. Most artists I know were more upset at the fact that this was not spelled out clearly anywhere months ago, forcing them against the wall on time to prepare what they were going to be selling.

As for the rule itself, ugh, where do I begin?

I am not versed in law in any shape or form, so discard any notion you’ll have in fifteen seconds that I understand it. I acknowledge that companies who own the copyrights to something over here are entitled to them and can press charges against someone openly making bootleg merchandise and selling it. But fanart?

See, the argument I am presenting here is not against Katsucon, cons in general, or attendees/fans. It’s criticism reserved solely for the industry. Fan art to me is something that every artist has done, and many do not even seek a profit from it (such as myself). Those who do are merely seeking a small cost associated with the time and materials used in its creation. They aren’t mass-producing it, cutting into anyone’s market share, or diverting sales away from the company, in fact, many times they are generating more consumer interest in said franchise to people who might’ve not seen it in the first place. Artists who draw fan art are not trying to be pirates or break laws, they are drawing their favorite characters and exhibiting them, even selling them to those interested in buying a hand-drawn, painted, created, or CG’d piece of art work of their favorite character(s) for a nominal price. For the past decade and then some, the industry has not seemed to mind this, probably because they were too busy being fans themselves, and lifting US interest in Japanese anime. Ah, but now that they are in a position of power and have built the empire, it’s time to fortify the walls and strike down those who threaten their gold and riches. I realize I wrote some pretty outlandish words there, but I don’t see a reason for any of this at all, I really don’t. We’re not stealing from these companies, we’re not really endangering any hard-earned jobs, and if you think we were, why wait until now to say something?

So really, I can’t blame conventions from having to adopt these policies, because they are just trying to protect themselves from litigation, but why aren’t more people fighting this? Why aren’t more people willing to tell companies like Funimation where to shove it when it comes to something like fan art, which honestly does not impact their business at all in any sense? You can argue it impacts their business with “pretend sales” i.e what the RIAA does to justify its extortion scheme upon millions of consumers. I don’t want to get into my view of how anime companies should conduct business, that is material for another post.

I stopped going to anime conventions for everything but art, both art shows and artist’s alley. Frankly, every con is the same, same guests, same panels, same dealers shit, same attendees. When you’ve been one you’ve been to most of them, and they don’t change. The basic model is the same, everywhere you go. So if fan art goes, I am inclined not to stay after this year. It sucks, but then most people grow out of the need to attend these things every year forever. I personally would like to go to some other cons in other fandoms, I am doing PAX East this year, and possibly San Diego Comic Con in 2012. Anime for me these days is just watching it, blogging about it, and buying a few things from it.

Anyway, this will likely be the final edit on this post. I hope to still see many artists at the con regardless of the circumstances, because without you, there would be no Alley or Show.

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5 thoughts on “Capitalism Ho!

  1. Pingback: I think Katsucon 17 is trolling me : Otaku Journalist

  2. I hope you’re right about fanart not being banned. This is my first con and I was super excited to sell my fanart (it’s 90% of what I do), and after hearing that I might not be able to…well, consider me SOL. Since the costs of printing and an artist table are ridiculously expensive, I’m worried I won’t break even if I have to sell original work. Not to mention, it’s less than a month till the con. When will we hear the official word? I’d hate to put off printing/buying supplies till the last minute.

    Anyway, thanks for the info- I’ve been following news from Katsucon since November, and waiting on them to get back to me has been agonizing.

    • It’s been my experience that communication is erratic at best. I’m not high enough on the pole to know (or probably care) about most of the inner workings and policy for the con itself, I just help a friend run Art Show every year, which has been an awesome experience as an artist and fan of artwork.

      I would keep an eye out on the website, and the forums for any official word, and if they do not post anything here real soon, email the Artist Alley head. The last I heard from a guy I met last year in AS, who has been emailing the AA head, that the rule is limited to some work, likely that of US distributors licensed works. I’m going to assume this is Funimation mostly, since they have been pretty trigger happy on lolsuits against fans. So if a lot of your work is from more newer series or unlicensed, you’re probably safe.

  3. Hello,

    I am an artist who was interested in getting a table this year at Katsu 2011. Though I’ve only been to two Otakon cons, I simply fell in love with the atmosphere it exuded— only to find disappointment here.

    I got this email this morning and decided to investigate. It is directly from the Staff to artist alley participants.

    —————-
    Happy Groundhog Day!

    Y’all might want to grab a cup of java and settle in; this is going to be a long one. 🙂

    I apologize for not communicating with you sooner. Jasen has been unavailable recently due to issues that take precedence over his volunteer work for Katsucon, but he will be back with you shortly. I myself have been busy with other aspects of the convention, but I am determined to do everything I can to make your Artist Area experience as enjoyable as possible.

    First, a reminder: For those of you who have not yet paid for your table, the online payment link is still active:
    https://secure.katsucon.org/prereg/index.php?r=registration/artist

    If you do not want to pay online, you will be able to pay when you arrive at the convention. Since you currently have a table reservation, the price will still be $100. Unclaimed tables will be sold for $120 at the door.

    If you need an extra badge, a limited number of artist badges will be available for $30 each. Please note, we do not accept personal checks at the convention. You will be able to pay with either Visa or Mastercard, as well as cash.

    In no particular order, I will try to answer all the questions we have received about our rules.

    Tables:

    If you are receiving this message, then yes, we do have a table reserved for you. 🙂

    Badges:

    Each table includes one complimentary Artist badge. This badge is good throughout the convention, but it also allows you to sell in the Marketplace.

    You do not need to go to Registration or purchase an entrance ticket. The included Artist badge is all you need.

    You will pick up your badge at the Artist check-in table in the Marketplace. This is in Hall A on the bottom level of the convention center, at the opposite end of the hallway from the glass doors. The check-in table will be just inside the entrance to the room.

    Extra badges:

    Many of you have taken advantage of the option to get an additional badge, besides the one included with the table. Some have asked about getting a third badge. Yes, that will be possible; the badge will be $30. Unfortunately, the online payment system is not yet equipped to handle purchasing just a badge. So the extra badge may be purchased when you check in.

    Some have mentioned how there was no clear way to specify a name to go with the extra badge. We only really need the name of the person at check-in; we ask for it ahead of time to help speed up the check-in process. We need to have a legal name to go with every badge we issue.

    However, the artist badges themselves will only have the name of your studio on them. They will not have individual peoples’ names printed (except for those who do not use a studio/business name).

    Each person must pick up their badge separately. You cannot pick up your helper’s badge for them. The easiest thing is for the two of you to check in together.

    Tax information:

    We have submitted the list of artists to the Maryland Comptroller. You should receive a letter, with your temporary tax ID, from them by the end of this week. If you do not receive a letter before the convention, don’t worry. You can get the tax ID after the event, and you will still have 30 days to send the paperwork back to the Comptroller.

    Remember, this Tax ID is to be entered on the Exhibitor’s Affidavit. You need to have the Affidavit at your table for the entire weekend. You can fill it out at the con when you check in; we will have two-part carbonless forms available, so that we can keep a record of it while you keep the original at your table.

    You can also fill out the Affidavit now and bring the completed form with you to the con. The form can be downloaded here:
    http://www.katsucon.org/images/filesk17/CoMD-exhaffidavit.pdf
    If you do fill out an Affidavit beforehand, please bring a second copy with you, for our files.

    You should not need to worry about a Maryland Trader’s License. That is only required if you sell at more than 3 events per year in Maryland. If you already have a Trader’s License, then you don’t need an Affidavit; you would display this instead at your table.

    Electricity / Internet:

    These services can be contracted from the Gaylord, for a fee. That’s the drawback to being in a convention center; power is not free. While the cost for electricity isn’t too bad, the cost for Internet access (especially wireless) is expensive. We don’t recommend it. If you do want electricity for your table, you can find the forms on the Gaylord’s website here:
    http://www.gaylordhotels.com/gaylord-national/meetings/conference-services/exhibitor-guide/index.html

    The Gaylord does charge more to install a hookup at the convention that was not requested in advance. I know this is short notice, but you need to submit your request by this Friday, February 4th, to receive their advance pricing rates.

    Inclement weather:

    While we really hope to see you at the con, your safety comes first. If you think it might be too dangerous to travel because Mother Nature dumps on us again like she did last year, then by all means stay home. We’ll see you next year. But I am rooting for all you Canadians to make it down here this year! 🙂

    We understand that the weather might cause cancellations even on the day of the con. Should you be unable to attend because of the weather, or because of illness, please notify us at artalley@katsucon.org. We will refund your table fee to you, but please give us some time to recover from the convention first. 🙂 Refunds will be issued in March.

    Load in:

    As always, if you have only a small amount of items to transport, you can bring it through the hotel to the convention center. But if you have a large display or several boxes to unload from you car, you may drive around to the loading dock and bring in your stock from there. Of course, the merchants will also be loading in, so it may be difficult to find a parking spot at the docks. Still, the Gaylord prefers that you do it this way. They are aware that we wil have a high level of traffic on the docks for load in an out.

    Don’t count on using a hotel bell cart to transport anything from your hotel room to the Exhibit Hall. Gaylord policy is that only their staff are allowed to use the carts, and that the carts should stay on the hotel side. But if you really want to use one of these carts, you will be charged $25 for the service.

    Okay, break time… everybody take 5.

    … So, who are you rooting for in the big game this weekend? Me, I don’t watch football; I’d rather be watching anime! 🙂

    … Everyone back? Good.

    Now, on to the issue that has sparked some very lively debate.

    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;

    If you want to read the full text, and read other information about the actual laws, you can find it here.
    http://www.copyright.gov/title17/
    http://www.copyright.gov/help/faq/faq-general.html
    http://www.uspto.gov/faq/trademarks.jsp

    Now, we are not Intellectual Property lawyers, but we have consulted them. The following is our understanding of the Code.

    By definition, fan art is derivative work. You are creating something based on something else. As stated in the code, only the copyright owner is allowed to create such derivative works. However, the owner CAN give permission to someone else to create derivative work. So if you get the owner’s permission, you can create all the fan art of that particular work that you want.

    It does not matter whether you produce one copy or a thousand copies; fan art is still derivative work.

    It does not matter if you change the style or setting for a particular character. It is still a derivative work of that character.

    It does not matter what media you are using – bookmark, keychain, T-shirt, etc; it is still a derivative work of the character depicted.

    A common defense for fan art invokes “fair use”. Section 107 of Title 17 defines fair use as “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research”. Fair use also specifically refers to the reproduction of a particular copyrighted work. It does not apply to derivative works, and therefore “fair use” cannot be applied to fan art.

    As an interesting side note, the Code makes no mention of “parody” whatsoever. But a parody is still considered to be a derivative work, and so it is protected by the copyright.

    There is also no provision in the Code for “personal use”. So even if you never show a derivative work you create to anyone, it is still technically a violation of the copyright.

    Similar to fair use, “Work for Hire” has been used as a defense for commissions of fan art. True, a commission is work for hire. But work for hire is defined as “a work prepared by an employee within the scope of his or her employment”. What this means in terms of copyright is that the creator of the work cannot claim a copyright on the work. The copyright belongs to the person who commissioned the work. But again, work for hire does not apply to fan art. The fan art is still a derivative work regardless of why or for whom it is created.

    But work for hire does bring up an interesting point for original art. When you do a commission, the person who commissioned the art is the copyright owner, not you. This means that even though it is original art, you cannot turn around and sell prints of that art, unless you get permission to do so from the person who commissioned the art.

    Now, given all of that legalese …

    Katsucon is not an enforcement agency, nor are we responsible for anything being sold in the Marketplace. Only you are responsible for what you are selling. True, we don’t want the convention to be shut down; but we don’t our attendees getting hauled off either. We will only take action when it is necessary; conversely, when it is necessary, we will definitely take action.

    So for example, if you just happen to have a book of samples including fan art in your backpack under the table, we’re not going to bother you about it because we won’t know about it. We’re not going to search your belongings looking for copyright violations.

    On the other hand, if that same book of samples is sitting out on your table, opened to an image displaying fan art, that would be a problem. So don’t leave an open book containing fan art laying around.

    Similarly, we really can’t stop you from accepting commissions. When the commission is made, the art does not exist yet, and so there is no copyright violation yet. You just can’t create the commissioned art while you are at the convention.

    There are ways to skirt the fan art issue, by making your art distinct from the copyrighted version. Using Naruto as an example:
    Use a different headband, without the logo (trademark), and change the color of his hair and clothes. Then you would be creating something inspired by another work, but that is not truly a derivative work. It should work in theory, but again, I’m not a lawyer. So take this postulation with the proverbial grain of salt. 🙂

    Lastly, to quote a post from the forums:
    “It is my hope that moving forward, Katsucon and it’s (most likely) no fan art policy will kickstart the original english language manga-inspired graphic novel scene. How cool would it be if Katsucon was the place to go to find amazing original art and graphic novels? It would be like a mini-comic con and I can SO get behind that!”

    YAY! Somebody actually gets it! 🙂

    or, should I say,

    Drat! They’ve discovered our Secret Master Plan! 🙂 🙂

    See y’all real soon now,

    Paul Blotkamp
    President, Katsucon Entertainment Inc.
    Chairman, Katsucon 17 in 2011
    paul@katsucon.org

    • Thanks for the re-post, honestly I am still divided about the issue in general, but it’s awesome that Paul stepped in and straightened it out for everyone, even if it was a little late. They would benefit from having done this sooner rather than later, a lot of artists were okay with the policy, they just would have rather been told months ago so they could prepare versus weeks before the con.

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