The ball got rolling when early in June, the Japanese House of Representatives approved a long-overdue law banning the possession of child pornography. Up to now, creating and distributing child pornography was as forbidden in Japan as anywhere else, but “simple possession” had not yet been criminalized. The new law applies only to “real” child pornography and leaves alone completely fictional depictions of underage characters in sexual situations in manga, anime and other media. This exception came about after vocal protests from manga publishers, creators, fans and free speech rights activists. The story was widely reported in non-Japanese media. However, most of these reports focused on handwringing about Japan’s “failure” to clamp down on sexually explicit manga. Most shared was a CNN article filled with outrage about how the new law supposedly permits Japanese bookstores to fill their shelves with shocking cartoon porn about children.

As the Comic Book Legal Defense Fund (CBLDF) pointed out in a scathing reaction post, CNN’s report was highly misleading and uninformed, misrepresenting manga in general as pornographic and painting the “freedom of speech” arguments against the new law as no more than the lobbying of a large industry bent on making profit from icky virtual child pornography. The comments section of the CNN article quickly filled with anime and manga fans fact-checking the text and refuting its arguments.

Their support, and that of the CBLDF, was of some small comfort to Japanese creators and activists who were aghast at their portrayal in Western media. Simple complaining about “Japanese cartoon porn” is, by now, no more than sadly familiar. Sensation-hungry Western news outlets have been creating miniature moral panics out of that ever since they realized that in Japan, comics and animation are media that are used to express not just “kiddy stuff” but every kind of content, including pornography.

This uproar went further in the sense that it represented manga creators and free speech activists as money-grubbing child pornographers. CNN and other news sources seemed unaware that in Japan, unlike in the United States, laws that restrict depictions of sexuality in media actually are a very serious freedom of speech issue, and have been so since immediately after WWII. Japanese creators and publishers of sexually explicit material who yell about free speech rights are not just demanding the right to do whatever they like; they are continuing half a century of protests against arbitrary and outdated censorship laws.

A look at Japanese legal history

Japanese authorities have used and continue to use laws against “obscenity” to attempt to control what gets published in the country. Before and during WWII, such laws were among several used to suppress any speech that did not support Japanese militarism. After the war, freedom of speech was guaranteed in Japan’s new constitution, but still restricted by only one remaining bit of pre-war legislation: Article 175 of the Criminal Code of Japan, which prohibits the sale or distribution of materials that contain “obscenity” (waisetsu).

Other countries at the time also attempted to legally curtail “obscene” media, of course, but Japan’s anti-obscenity law turned out to have bigger teeth than many others. For instance, in the 1950s and 1960s, the US, Britain, and Japan all held separate trials about obscenity contained in the D.H. Lawrence novel Lady Chatterley’s Lover. In the US and Britain, the trials ended in acquittals, greatly reducing the subsequent relevancy of obscenity laws for media in those countries. In Japan, however, Lady Chatterly was judged obscene. The victory of the prosecution in this first postwar Japanese “obscenity” trial was an important precedent, because it confirmed that obscenity laws were a stick that authorities could beat publishers and authors with whenever they were displeased with the direction Japan’s creative sector was going in. Lady Chatterley was the first in a series of protracted and much-publicized “obscenity” trials that covered many different media, from books to film to photographs to manga. (See Cather for in-depth analysis of censorship in Japan.)

Far from being discouraged, the Japanese media industry made dodging of the censors into an art form. Manga creators, for instance, got very creative in figuring out ways to depict naked bodies and sex without showing pubic hair (long a no-no) or genitalia. Article 175 and related laws and local ordinances were applied so rarely and so inconsistently that the creators and publishers who did end up getting charged were usually very surprised to be singled out. Still, many of the obscenity trials turned into platforms for broad swathes of Japan’s literary world and media industry to try and wrestle back their right to publish freely from the state. Many feel that bureaucrats and police have no business deciding what people are allowed to read in order to protect a vague and constantly-shifting idea of “public morality”.

No matter how rarely used, laws against obscenity, and (especially since the 1990s) a mushrooming multitude of local ordinances against “harmful” media, do influence what can get published, what can be on library shelves, and what people can write and draw. The chilling effect of even potential legal troubles was – and still is – considerable for authors and publishers. Only weeks ago, a new manga by an assistant mangaka working on the popular series Attack on Titan was cancelled because its publisher feared that it might run afoul of a local ordinance in Tokyo aimed at curtailing the spread of “unhealthy publications”.

The fandom effect

Censors’ attention turned to manga and fan culture after 1989, when a serial killer turned out to possess large amounts of sexually explicit anime and be a participant inComiket, Japan’s largest convention for fan manga (doujinshi). This led Japanese media to engage in what fans called “otaku bashing”.

Although stigmatization of fans as socially maladjusted and possibly dangerous loners has lessened much since then, its effects are still felt. The most recent high-profile “obscenity” trial, a five-year legal battle that ended in 2007 with a guilty verdict from the Supreme Court of Japan, was about a manga (more on that trial). Commentators and scholars argue that manga has become a target for censorship, at least in part, because anime, manga, and Japanese fan culture in general have been gaining much attention and acclaim overseas. The Japanese government has been trying to turn that attention into money with various “Cool Japan” campaigns aimed at promoting Japanese media products and tourism to Japan.

Polemics in foreign media about the less photogenic parts of Japanese pop culture, like adult manga, are then unwelcome indeed. Some warn that with the Tokyo Olympics coming up in 2020, local and national authorities in Japan may get even more sensitive to foreign handwringing about “Japanese cartoon porn”. However valid that fear may or may not be, last month’s new flap about manga and anime highlights how uninformed many media outlets still are about Japan, and how little any articles about non-English fandoms in the mass media can be trusted. Shallow and alarmist reporting by major and (somewhat) respected news sources like the BBC and CNN reinforces orientalist stereotypes about Japan and its people being somehow lacking in sexual morals. Clearly, it also does great harm to the cause of activists who are fighting to keep bureaucrats and police from gaining tools to control what can be published by the Japanese media, professional and amateur.

Last month’s incident also highlights the growing importance of free speech rights to fan communities. Laws against “obscenity” or so-called “virtual child pornography” are still low on the radar of many English-speaking fans, especially compared to copyright woes. However, the example of Japan shows that these laws can and do have a very direct impact on what fans can make and distribute.

Past and recent cases

In Japan, the extremely popular fan-made manga called doujinshi have to follow the law just as much as commercially published manga. Fans are free to draw what they like in private, but if they want to distribute their fanworks in any way, they have to apply censor bars or mosaics to anything that might possibly catch the attention of censors. Just like with professional manga, the law is applied only rarely and inconsistently, but anti-obscenity laws have still led to legal troubles for individual fans and disruptions of fan activities and fannish infrastructure.

For instance, in the midst of a “harmful books” polemic that followed the arrest of the “otaku” serial killer in 1989, “police confiscated thousands of doujinshi from merchants in Tokyo’s Shinjuku Ward and arrested several shop owners” (Japan Times). In 1991, doujinshi convention Comiket was forced to move out of its convention site Makuhari Messe because police had received complaints about the fanworks being distributed there (Comiket welcomed over two hundred thousand visitors around that time and hosted 11,000 fanwork creators). Doujinshi conventions began to enforce anti-obscenity measures and check every fanwork on sale to make sure it followed guidelines about obscuring genitals and warning buyers of sexual content on the covers. Still, in 1994 and on several other occasions, further conventions had to be cancelled or moved because of complaints about possible “harmful material” being distributed.

“Obscenity” issues were shown to be connected with copyright problems in 1999 when a a female creator of sexually explicit doujinshi for the popular children’s game and anime series Pokemon was arrested for copyright infringement, apparently after someone complained about the explicit material to copyright holder Nintendo. In 2007, a doujinshi creator was arrested and eventually fined because his self-censorship of his works was not sufficient. This lead doujinshi conventions (and online doujinshi shopDLsite) to tighten enforcement of censorship regulations, and the Japan Doujinshi Printing Group to issue self-censorship guidelines for all fans who wanted to have their doujinshi printed by its member printing companies. Later in 2007, a building which had been used by several doujinshi conventions was closed to conventions that feature sexually explicit doujinshi. In 2009, the manager of a doujinshi shop shop was arrested on suspicion of distributing obscene material (NSFW link). Today, various links in the creation and distribution chain of doujinshi – doujinshi printers, conventions, and doujin shops – continue to impress upon fans the importance of “self-regulation” (jishu kisei, in practice “self-censorship”) when distributing fanworks.

Unsurprisingly, censorship issues are at least as important as copyright issues for Japanese fans. Around 2010, for instance, Japanese fan communities were actively involved in a battle to defeat a local ordinance in Tokyo that attempted to forbid the distribution of material containing sexual depictions of ill-defined “nonexistent youths” (more inthis TWC article).

Worldwide effects

Japanese laws are not the only ones causing problems for fans. Outside Japan, several fans have gotten in serious trouble because the manga they love were considered “child pornography” by authorities. The CLBDF has been particularly active in chronicling these cases and sometimes providing legal support to fans. In 2010, for instance, a U.S. manga fan was sentenced to jail because manga in his collection contained “drawings of children being sexually abused”. Also in 2010, another U.S. manga fan was arrested at the Canadian border for similar reasons, at least the second time this sort of arrest happened in Canada. Several more fans have reported online that they were questioned at the Canadian border because they were carrying manga. In 2012, there was a small victory as Swedish manga translator Simon Lundström was cleared of child pornography charges brought on by several manga on his computer.

This string of worldwide incidents surrounding manga, and the uproar in Western media about Japan’s “refusal” to criminalize “virtual child pornography”, shines a light on how little attention most countries outside Japan have paid to the question of whether it makes sense to extend anti-child pornography laws to depictions of entirely fictional children. Some countries, like Australia and Canada, do extend their definitions of “child pornography” to media that contain absolutely no real children, only fictional characters. In the US, this cannot be prosecuted as child pornography, but it can be prosecuted under general obscenity laws if it meets the standard for obscenity (as judged by community standards, patently offensive sexually explicit depictions that lack literary, artistic, political, or scientific value).

However, these laws mostly passed with very little public consultation or debate (see McLelland). There was often no serious inquiry into the question of whether “virtual child pornography” is actually harmful to anyone, and why it should be banned while fictional depictions of other crimes are fine and dandy. Objections about a lack of scientific evidence to link “virtual child pornography” to real harm, and objections about potential censorship, are easily brushed aside in the midst of moral panics about “protecting children”. According to Kotaro Ogino of the Japanese free speech organization Uguisu Ribbon Campaign, this problem is occurring in Japan as well, leading to the constant battles about potential criminalization of “virtual child pornography” that are taking place there today (personal communication).

Also problematic is that, unlike in Japan, many citizens of these countries are not aware it may be illegal for them to make fictional depictions of sexual situations involving minors. Many fandoms such as Harry Potter or Attack on Titan have thriving shipping communities around underage characters. In theory, that puts some fan creators in the crosshairs of anti-child pornography laws. The fact that laws against “virtual child pornography” are rarely or inconsistently enforced does not mean they are harmless. The outcome of the constant fight that Japanese fans, mangaka, and publishers are waging against censorship laws may turn out to be very relevant for non-Japanese fans as well.

For more information

More news and information about censorship problems that impact Japanese and non-Japanese fans of anime and manga can be found on the CBLDF website, the blog of translator Dan Kanemitsu, Anime News Network, and in the articles tagged with “censorship” in the OTW’s fan studies bibliography.

(by Nele Noppe. Also posted on the OTW’s main blog.)

If female fans are dismissed more easily, then so are their interests, their spaces, and their primary forms of engagement. Or, said differently, gender discrimination occurs on the level of the fan, the fan activity, and the fannish investment. There is a ready truism that enthusiasm for typically male fan objects, such as sports and even music, are generally accepted whereas female fan interests are much more readily mocked. Likewise, fangirls are mocked as is fan fiction, an activity more commonly ascribed to females. More than that, affect and forms of fannish investment get policed along gender lines, so that obsessively collecting comic books or speaking Klingon is more acceptable within and outside of fandom than creating fan vids or cosplaying. Even the same behavior gets read differently when women do it: sexualizing celebrities, for example, is accepted and expected among men but gets quickly read as inappropriate when done by women.

“Geek hierarchies, boundary policing, and the gendering of the good fan” Kristina Busse, Participations 10.1 (2013) ift.tt/1tr9CBz

For example, the video game industry has long been working to blur the line between labor and play in their own ranks by recruiting fans as beta testers for games that are about to be released. Companies routinely emphasize the benefits and the prestige associated with early access: alpha and beta testers are said to have the ear of game makers, to be influential in shaping the final product. Similar rhetoric abounds in recruitment materials aimed at young workers looking to break into the industry.

Mel Stanfill and Megan Condis, Editorial: Fandom and/as labor ift.tt/1sxoYCp

Many (New York Times articles about fan fiction) described fanfiction authors as dedicated (Nussbaum 2003), but the specific language used to frame their “zealous” (Stelter 2008, 5) or “marginal obsessive” (Manly 2006, 1) behavior varied. The normalcy of fanfiction appeared largely dependent on the fan’s age. Adult fanfiction authors were portrayed as perverts playing out their media-inspired sexual fantasies (McGrath 1998; O’Connell 2005; Orr 2004), whereas children and adolescents used fanfiction as a creative form of literacy and self-expression (Aspan 2007; Kirkpatrick 2002; Salamon 2001).

Drew Emanuel Berkowitz, Framing the Future of Fanfiction: How The New York Times’ Portrayal of a Youth Media Subculture Influences Beliefs about Media Literacy Education, p203 ift.tt/1i2fPfg

As one reflects upon the history of culture in the twentieth century, at least within what we call the “developed world,” it’s hard not to conclude that Sousa was right (to fear in 1906 that creation by regular people was becoming less central to culture). Never before in the history of human culture had the production of culture been as professionalized. Never before had its production become as concentrated. Never before had the “vocal cords” of ordinary citizens been as effectively displaced, and displaced, as Sousa feared, by these “infernal machines.” The twentieth century was the first time in the history of human culture when popular culture had become professionalized, and when the people were taught to defer to the professional.

Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy ift.tt/1hD2UUY

ETA: Looking for programs in the US, if at all possible.

-Danielle Frankel

Tumblr crosspost: ift.tt/1rpqHZI

-rabidbehemoth

Tumblr crosspost: ift.tt/1l8Y9Um

[P]arafanfiction…refers to a particular subset of parafictional art that claims to be fanfiction of, or some other record of, an external media object that does not actually exist. The most notable examples of this are the Homestuck Anime and Squiddles, both of which are spinoffs of the actual Homestuck hypercomic. The idea with those projects is to fabricate an entire alternate reality where Homestuck is an anime and the in-comic show Squiddles actually exists. The fans participating in these projects create objects ostensibly taken directly from the shows in question—screencaps, pictures of old VHS tapes, GameBoy Advance cartridges, gif edits, and so on and so forth—in order to sell the idea that these shows actually exist.

Parafanfiction and Oppositional Fandom by Sam Keeper

Generally speaking, media fandom operates on a labor theory of value—not necessarily in the Marxist sense of the phrase, but in the sense that value derives from work. Fandom’s gift economy assigns special worth to “gifts of time and skill” (Hellekson 2009, 115), gifts made by fans for fans. The worth of these gifts lies not simply in the content of the gift, nor in the social gesture of giving, but in the labor that went into their creation. Commercially purchased gifts, such as the virtual cupcakes and balloons that can be purchased in the LiveJournal shop, may be given and appreciated, but will generally be worth less, in the context of fandom, than gifts made by the giver (note 2). This labor theory of value is often invisible or unarticulated until something goes wrong: a site skin doesn’t work as anticipated, a vid is plagiarized, a story in progress—or an entire archive—is abandoned. These events remind us that our experience of fandom depends on the labor of others: “A gift is a thing we do not get by our own efforts. We cannot buy it; we cannot acquire it through an act of will. It is bestowed upon us” (Hyde 1979, xi).

Tisha Turk, Fan work: Labor, worth, and participation in fandom’s gift economy ift.tt/1g9d3Vi

What gets you excited about academic studies in fandom?

“Here’s what I’m excited about,” said Karen Hellekson in 2008: “an academic journal that welcomes, instead of rejects or overtly mocks, fan studies as a topic … that takes as a given the notion that fans provide something valuable to our culture that ought to be analyzed.”

That journal is Transformative Works and Cultures (TWC): run, peer-reviewed, edited, and supported by OTW members and fans like you.

TWC is a journal with contributions from fan studies scholars all over the world. Edited by Hellekson and Kristina Busse, TWC has produced 15 issues so far, featuring fascinating contributions in topics ranging fromfanvids to fan labor to Supernatural.

Here’s another reason to get excited: TWC is completely free to the public, and has been from the beginning. Academic journals are traditionally locked to people with university affiliations. Often you have to pay US$30 to $45 for access to a single article. But ours is an online-only Open Access Gold journal: free for the readers at the point of access. Plus, our Creative Commons copyright lets anyone reprint the essays for free. These are essential principles behind TWC, enabling its goal of connecting academics and fans through community and accessibility. That’s why the journal also has an open space for non-academic fans to chime in, through the Symposium section in every issue.

Read more

Fifty Shades complicates the concept of prosumption, however, as (E.L.) James “built a following within a community founded in part on the explicit rejection of monetary gain in favor of fannish love, and then used that community and the work it helped her to produce in order to make a name—and a fair amount of money—in mainstream publishing” (Wanenchak 2012). James thus straddles the line between producer and fan, stealing from commodified culture to create Master of the Universe while stealing from fandom to make a success of Fifty Shades. The question of whether James’s fans would have been so involved in supporting and reviewing her work if they were aware that their efforts would result in her profit—although ultimately unanswerable—is nevertheless a valid one, and I would suggest that these debates suggest a subtle change in the relationship between fan and producer. From being in a position of cultural marginality where they poach from texts, fans are now the ones potentially being poached from (Andrejevic 2008; Milner 2009).

Bethan Jones, Fifty Shades of fan labor: Exploitation and Fifty Shades of Grey ift.tt/1kEIfyT

One major issue in the 2007–8 Writers Guild of America strike was an insistence that Web content was creative work and was thus eligible to be paid at creative rates, rather than promotional work that creators were obligated to participate in for free (Gray 2010; Leaver 2013; Russo 2010). The kinds of paratexts or pieces of ancillary content that were at stake in the WGA strike are quite like what fans produce, and turning to fans rather than paid staff for such work thus looks increasingly good for the bottom line. After all, even against the baseline of declining labor strength in Hollywood, fan work is a bargain for industry.

Mel Stanfill and Megan Condis, Editorial: Fandom and/as labor ift.tt/PrPe4z

On a more doctrinal level, respecting creativity as a human force should lead us to think differently about fair use, among other things, by encouraging us to take account of noncommercial motivations even in contexts current doctrine sees as commercial. Joanna Russ, the feminist science fiction writer, suggested that the“what if” of slash fanfiction was “what if I were free?” What would I read, what would I write, what relationships would I have with the external world and with other people? Asking “what if I were free”is very different from the claim-staking of the rhetoric of opensource software, which focuses on the idea that open-source software is “free as in free speech, not as in free beer.” That common phrase has always struck me as hiding within it many unexamined and problematic assumptions about what free is with respect to speech and how it relates to a commercial marketplace. What free is with respect to women’s voices, of course, has been fiercely debated at least since John Stuart Mill (and his wife) wrote The Subjection of Women. Slash and other fanworks come from a background of constraint, where acting as if we were free to write our own versions is a different kind of act than using our already-extant freedom to create open-source software instead of proprietary code. Women as writers have rarely had the luxury of exclusive control to give away.

One aspect of that unfreedom has been an inability to participate in the money economy on the same terms as men. Fanworks represent an alternative outlet for creative energies.

Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions ift.tt/1dL4BAw

If female fans are dismissed more easily, then so are their interests, their spaces, and their primary forms of engagement. Or, said differently, gender discrimination occurs on the level of the fan, the fan activity, and the fannish investment. There is a ready truism that enthusiasm for typically male fan objects, such as sports and even music, are generally accepted whereas female fan interests are much more readily mocked. Likewise, fangirls are mocked as is fan fiction, an activity more commonly ascribed to females. More than that, affect and forms of fannish investment get policed along gender lines, so that obsessively collecting comic books or speaking Klingon is more acceptable within and outside of fandom than creating fan vids or cosplaying. Even the same behavior gets read differently when women do it: sexualizing celebrities, for example, is accepted and expected among men but gets quickly read as inappropriate when done by women.

“Geek hierarchies, boundary policing, and the gendering of the good fan” Kristina Busse, Participations 10.1 (2013) ift.tt/1gQemxE

Comike was neither the first nor the biggest dōjinshi fair when it was established; its main purpose was to provide the freest market possible, and that freedom has come at a price. The dream of a Comic Market open to every one and everything was never realized, as there were too many physical, financial, and legal restrictions. Even today, the Comic Market suffers from a lack of space, a lack of money, and a lack of legal security. Only two-thirds of applicant circles can participate due to constraints, since, as a small independent operator Comike’s financial resources are limited and most of the work is done by volunteers.

Fan-Yi Lam, Comic Market: How the World’s Biggest Amateur Comic Fair Shaped Japanese Dōjinshi Culture, p244 ift.tt/1jEHBFw

The phrase fan work is typically used, by both fans and academics, in the sense of work of art; it refers to fan fiction, fan vids, fan art. Within fandom, these objects are “the main focus of most discussion outside of the show itself” and are “highly prized” because they “require some level of artistry to master” (Sabotini 1999). They are the objects, and thus the labors, most likely to be publicly assigned value (in the form of comments, kudos, likes, reblogs, recommendations, etc.) by other fans and to be studied by academics.

But there are many other forms of fan work, including work that does not necessarily result in objects for recirculation. Media fandom runs on the engine of production, but much of what we produce is not art but information, discussion, architecture, access, resources, metadata. Think about all the behind-the-scenes labor, for example, that goes into commenting on stories, beta-ing vids, writing essays and recommendations, reviewing and screen-capping episodes, collecting links, tagging bookmarks, maintaining Dreamwidth and LiveJournal communities, organizing fests/challenges/exchanges, compiling newsletters, making costumes, animating .gif sets, creating user icons, recording podfic, editing zines, assembling fan mixes, administering kink memes, running awards sites, converting popular stories to e-book formats, coding archives, updating wikis, populating databases, building vid conversion software, planning conventions, volunteering at conventions, moderating convention panels—and the list could go on.

Such activities and their outcomes tend to be less discussed and commended, in both fannish and academic circles, than fandom’s “traditional gifts,” even though in many cases these activities facilitate the creation of art objects or provide the infrastructure that enables the dissemination and discussion of those objects. The sheer volume of fan work, in the inclusive sense of the phrase, necessitates further fannish labor; the navigation of online fandom is made possible by the creation of metadata, access points, links, and so on: important though sometimes underacknowledged work. These labors, too, are gifts.

Tisha Turk, Fan work: Labor, worth, and participation in fandom’s gift economy

One area of serious concern which has not received the attention which perhaps it should is the privatisation or enclosure of folk works, historical or mythological figures or works which are out of copyright (for example, Mulan, Robin Hood, the Jungle Books, Pooh Bear) by the growing use of trade marks. Although trade marks should only restrict commercial uses of intellectual property, the danger by way of using trade mark law as a way of deterring ISPs from hosting fanworks in future is a danger which should not be overlooked.

Panel presentation at the 2014 Society for Cinema and Media Studies conference, Seattle WA, March 21, 2014 featuring @melstanfill, @derekjohnsonUW, @iheartfatapollo, and @mkackman

(Q: Given the increasing visibility of fanworks to both content/source creators and the public, what do you think are some important points to emphasize — or sources to use — when explaining fanworks to people who are unfamiliar with them?)

I think it’s important to stress that the simplistic “all fanworks are theft” line peddled by the likes of Anne Rice and Lee Goldberg is, and always has been, completely unsupported in law, even in the more restrictive legal systems of the EU. Furthermore, there are a lot of myths about alleged cases with have been brought and alleged rulings against fanworks, most of which do not stand up to scrutiny.

A report recently commissioned by the EU into the use made to date by European countries of the exceptions in favour of “parody, caricature or pastiche” introduced by the Copyright Directive of 2001 or equivalent local exceptions was unable to find any EU cases where successful legal action had been brought against fanworks by rightsholders.