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Toei Animation is not the first company to use YouTube’s copyright system to take down videos it deems as infringement.
Disclaimer: This article does not serve as legal advice, nor should it be treated as such. Please seek professional legal counsel if assistance is needed.
An AniTuber has had 150 of his videos struck down by Toei Animation for featuring Dragon Ball and One Piece. Kadokawa Corp. sends multiple DMCA takedowns to YouTube channels that use their IPs without permission, regardless of context. Someone posing as Shueisha strikes users on Twitter just for using GIFs from popular anime. And let’s not even get started on how Nintendo has treated its fans.
In the past few years, there’s been an increase in the number of anime and gaming content creators having their works struck down by larger companies for “abusing copyright.” These same companies will partner with these creators to promote their works and events, as was the case with Totally Not Mark and Toei. Fair use laws in America are pretty clear on what constitutes transformative works and when that line is crossed. However, Japan doesn’t have such a provision, and this is impacting how foreign fans show their love for these series.
Wikipedia defines fair use as “a doctrine in United States law that allows limited use of copyrighted material without having to first acquire permission from the copyright holder.” There are limitations to what constitutes fair use, such as uploading a copyrighted piece in its original form without any edits or commentary. Legally speaking, fan-art of copyrighted characters does not fall under fair use, especially those prints hanging up at Anime Expo. However, there is an unspoken understanding between many companies and fan content creators that fan-art and similar pieces of media act as promotion and homage to the IPs in question. There have even been occasions when the companies promote the artist on their social media, showing their appreciation for their fanbase.
However, Japan is more strict with its copyright laws, so much so that it’s beginning to cause a rift between the companies and their foreign fans. Nintendo was one of the most notorious companies for years for not allowing “Let’s Play”-style YouTube videos and even issuing DMCA takedowns of fan-art that depicted their characters in a way they believed was unbecoming. According to the Copyright Research and Information Center of Japan’s official website, the author holds exclusive rights over the distribution and exhibition of the works, and anyone seeking to use copyrighted material must first obtain the permission of the author before doing so (Article 23, Article 63).
Slowly, Japan’s copyright laws are starting to see some change in multiple ways to update the language to reflect modern media. In 2020, the Japanese copyright law was amended to include links to pirating websites in its definition of infringement, which they call “leech websites.” In January 2021, the act of cosplaying came up since this is a popular activity among fans. Lawmakers were looking to create certain situations in which cosplaying would be permissible, with the exception of being paid for making an appearance as a copyrighted character, according to the Japan Times. Despite what appears to be an interest in changing the way copyright is dealt with in a digital world, it doesn’t seem like there is any interest by lawmakers to help ease the tension between Japanese companies and foreign content creators.
YouTubers in particular are some of the most targeted creators, even though their videos frequently fall under American fair use, given that YouTube Headquarters is in America. However, the overseas distribution creates chaos in a normally clear-cut situation. Hoeg Law, a YouTube channel that looks at legal cases regarding media, even broke down how Japanese law cannot dictate whether a foreign person’s content made in another country can be viewable on a global scale. Japanese law can only dictate whether the content in question can be viewed in Japan.
The channel goes on to say that Toei Animation is not who the masses should be focusing on in the Totally Not Mark situation, but rather YouTube themselves, given that this is happening on their platform and through their system. Not only does the receiver have 30 days to appeal the claim, but the party making the claim has the same amount of time to respond to the appeal. They also can simply wait those 30 days before reinstating the claim, starting the process over again and preventing income from being made from the video.
Totally Not Mark released an update video explaining that he has been in contact with several members of YouTube staff to try and resolve the issue of 150 videos being struck. These staff members have said that he could block his videos from being accessed in Japan by blocking his content, but he would need a manager in order to access this feature, which he says he was never made aware of previously. He also says that the only other way to access this feature would be to pay for an MCN (multi-channel network), which is a group that assists creators in actions such as promotion, digital rights management, audience development, and so on for a cut of the monetization the videos bring in.
These answers were troubling to Mark, as “either it’s an important feature for YouTube to gatekeep, or it’s not.” In the update, he also paired up with a Japanese-speaking friend to issue a letter to Toei asking them to release his videos. At the time of writing, only 19 videos have been released by Toei.
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