What Fair Use Means to You

February 22nd, 2007

There is an infinite amount of material on the internet discussing copyright, so this post will fail in comparison, but I just wanted to note what use Fair Use has to y’all, with a concrete example:

If you get rid of Fair Use, your mass media will start to look like Japan’s.

Japan has no “fair use” doctrine. If you review a movie or game, you can only include a screen shot or a still if you get permission from the copyright holders. This results in the following wonderful, wonderful situtations:

There are no proper free game review sites in Japan. If you play videogames, where do you go to find out if they’re good or bad? IGN? GameSpot? 1UP? MetaCritic? GameRadar? GameSpy? Well, good luck finding an equivalent in Japan. Most game review sites want, understandably, to include screen shots in their reviews. Thanks to the Fair Use doctrine, they do, in America. In Japan, there used to be, according to rumour, A game review site. That is, a single game review site. The owner got sued into oblivion for copyright infringement.   Not for torrenting games, or providing cracks.  For accompanying reviews with screenshots.

Which leaves magazines. Magazines sell. They make money. Therefore, they can pay companies for the right to show screen shots. Of course, the tradeoff is that if you rank a game badly, that the company really really wanted to sell, they’ll never sell you a promo shot again. This results in wonders like this: The newest Gundam video game for the PS3 got reviews in Famitsu, the biggest game review magazine in Japan, of 80%. Pretty good, huh? Well, GameSpot gave it a 39%. IGN, notorious for giving high ratings, gave it a 32%. 1UP gave it a 20%. And on and on. In the West, thanks to Fair Use, we can trust review sites to some degree to give fair ratings. In Japan, where publishers have to rely on content makers to authorize their use of any images whatsoever, reviews aren’t worth the paper they’re printed on.

Movie reviews? Same problem. It’s a dry movie review indeed that doesn’t have a single photograph from the movie. But if you want that photo, you have to pay, and if you poop on a big release that the studio is banking on, forget ever being allowed to purchase another photo. In fact, add on to that the fact that, as a condition of supplying stills of movies, some studios require editorial control over the review! That’s right, if you want to use a still from a movie from Studio X, not only do you have to pay them for it, but you have to give them your review ahead of time so they can make changes to it before it goes to press. Give them the finger and publish your review the way it was originally written? Well, say goodbye to ever getting another still from any of their other movies ever again.

What about the music front? Well, the exact same thing, this time with album covers.

And, of course, all three are affected by the second big wall of copyright in Japan: 肖像権 (roughly translated, “portrait rights”). Any photograph of anyone is protected by portrait rights, and cannot be reproduced without their permission. Of course, this is easily skirted if you’re taking pictures of folks nobody knows, but once you start taking pictures of musicians, actors, etc., people know. So if you want to put a picture of an artist anywhere in an article, or on TV, you’ve got to get their permission.

Oh, but have I mentioned that portrait rights are transferrable? This means that, if an artist has signed with a label/studio/agency, you don’t need to get permission from that artist, but from their label/studio/agency.

Which leads to the situation where: a TV station can’t really speak badly of any hot movies, musicians, or artists, because, if they do, then that studio will never allow their actors to appear in TV shows produced by that station, or allow their musicians to appear on music shows, or allow their music to be used in TV shows, or the like. A publisher can’t really publish anything bad about any of these folks, because even if the offending magazine doesn’t depend on using photos of these artists/etc., it’s pretty much guaranteed that some other magazine published by the same publisher does.

Now, this may give you the impression that, as a result, nothing is ever said about any celebrities in the Japanese press. That isn’t exactly true. If that happened, people would clue into the situation. Instead, what happens is that content providers throw the press the occassional bone: they allow reporting of scandals where the press might result in increased sales. Or they allow negative reporting of has-beens or folks whose profits they’re not concerned about. Basically, it’s like if, in the US, the press wasn’t allowed to ever say anything bad about Tom Cruise or Paris Hilton, but was allowed instead to say whatever they wanted about Screech from Saved by the Bell, or Erik Estrada.

So, put these together, and you get situations like, for example, the current Oricon sales chart scandal (if you can call an unreported scandal a scandal). Oricon sales charts are the equivalent of Billboard sales charts: they come out weekly, and tell what the top singles, albums, and the like are. Allegations have been made that Oricon is in tight with a few of the major record companies and talent agencies (Johnny’s and Avex, to name two). Oricon sued a reporter for saying this, and the reporter countersued Oricon. Normally, this would be a Big Deal. However, there is absolutely no coverage of this. Zip. TV stations don’t mention it, newspapers don’t mention it, or relegate it to the smallest little blip, magazines avoid it. Which makes sense: if you talk about it, say goodbye to having anyone from Johnny’s or Avex ever appear on your station / in your magazines again.

And the result is bad movies being rated favourably and making good box office figures. Bad albums being promoted everywhere and selling hotcakes. Terrible TV. Basically, content providers pumping out swill and using the power of copyright to suppress any dissent from the mass media.

Does this mean dissent is impossible? No. Sure, you can make your image-less website to put out the truth about this or that, to talk about how bad the newest Gundam game is, to diss a horrible movie. Japan is no Soviet era Russia. But any of this reality reaching the majority of people via any sort of mass media? Fuggedaboutit.

And that, in a huge nutshell, is why Fair Use is good.


On reread, it looks like I got mighty derailed. Half the stuff above isn’t about Fair Use at all; that is, even if Japan had a doctrine of fair use, that wouldn’t prevent the stronghanded approach of forbidding your agency’s actors from appearing in TV shows on a station that had criticized your agency or actors, nor for forbidding use of your record company’s music from appearing in TV shows on a station that had criticized your record company or artists. So it ended out being more an article about “Why the Japanese mass media sucks” than “Why the Japanese mass media sucks due to lack of Fair Use”, but, oh well.

Second, I should really link neomarxisme here. He goes far more in depth about all of this, and don’t worry, it’s not the kind of overwhelming marxist site that the name implies.

2 Responses to “What Fair Use Means to You”

  1. Victor Says:

    Don’t know much about games, but for movies I have found the “official” reviews to be mostly crap in the western press anyways. I find I get a much better idea about a movie from scanning through a dozen or two reviews by different people on imdb.com or some other such site.

    Fortunately in Japan yahoo allows user reviews so you can scan those.

    Who needs journalists anyways, they’ve been lackeys of the establishment for years…

    And its not like the press is not in the pocket of the establishment in the U.S… The news that comes out on Fox, CNN…

  2. bugbread Says:

    I hear ya on the imdb, but the danger there is spoilers.

    But the “press is in the pocket” is exactly what I’m talking about. Without fair use, and with the whole 肖像権 thing, the situation is far worse.

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