Fans get a short lesson in the legal system, just in time for convention season.
Yesterday, FUNimation issued a statement regarding fan art and intellectual property. The statement, which particularly highlights trademark rights, is available in its entirety below.
At law, a fan-created artwork that is clearly based on existing artwork owned by a copyright holder other than the fan (e.g. Funimation), is considered an unauthorized “derivative work” or an unauthorized reproduction (by substantial similarity) and therefore infringes the copyright holder’s rights under 17 U.S.C. § 106.
Despite Funimation’s legal stance on this issue, Funimation appreciates the entertainment, education and skill that goes into and arises from the imitation and creation of works derived from existing works of popular manga and anime. Funimation likewise realizes that the “Artist Alley” area of most conventions can be a good showcase for these works and therefore Funimation tends not to enforce its copyright rights against those in Artist Alley who may be infringing Funimation’s copyright rights.
Funimation’s trademark rights, on the other hand, cannot go unenforced. This stems from a key distinction between U.S. Copyright Law and U.S. Trademark Law—in short, if copyright rights are not enforced, the copyright stays intact and the copyright holder generally will not suffer any harm beyond the infringement itself. But if trademark rights are not enforced, the trademark can be cancelled. Because of this difference, Funimation cannot knowingly tolerate unauthorized use of its trademarks, such as use of trademarks in conjunction with the display or sale of works whose creation is likewise unauthorized. This means that Funimation will take action if it or its agents discover unauthorized works, including fan art, which include a Funimation-owned/licensed trademark within the work or are on display in conjunction with signage bearing a Funimation-owned/licensed trademark. Note that the trademarks Funimation is primarily concerned with are brand names and logos.
As to the Dealer’s Room, Funimation strictly enforces both its copyright rights and trademark rights, almost without exception. This applies to works that are believed to be counterfeit, unlicensed or fan-created.
Editor’s note; tl;dr version below
Basically, the statement states that fan art is considered an unauthorized derivative work. However, FUNimation, as a whole, appreciates the work that goes into (and arises from) projects such as these and tends to not police such works in locations like convention artist alleys.
Trademarks are a different story, though. By United States law, trademarks are stricly “enfoce it or lose it.” Failure to enforce a trademark can lead to its cancellation and invalidation of all protections offered. Because of this, Funimation explains that they must take action if a project uses trademarked brand names and logos without authorization, be it fan art or commercial.
Dealer’s rooms are a different matter, as FUNimation will enforce both copyrights and trademarks tot heir fullest extent to crack down on counterfeit items.
This isn’t the first time an agency has sent out a clarification regarding copyrights. In 2013, Anime News Network hosted a series of articles by attorney Sean Thordsen that discussed the various legal issues that persisted in the North American anime industry.
Outside of the US, Tohou Project creator ZUN noted a distinction between the copyright and trademark under Japanese law in 2012, as he protested a third party’s acquisition of the trademarks for Tohou Project and Shanghai Alice Gengakudan.
Source: Anime News Network