Simon Jones leads a discussion of what Tokyopop might be up to at the Icarus blog. Everything is very speculative at the moment, since the Tokyopop folks have been quite vague about the notion of using “fan translations,” but this comment from Simon was rather arresting:
Technically, TP doesn’t even need the permission of the scanlators to use their translations. Since all translations are derivative works, Tokyopop as the designated rights holder already owns them. @_@
Now that’s what you call… ironic. Not that Tokyopop would actually do that, but it would certainly put an interesting spin on the whole scanlation debate.
Danielle Orihuela-Gruber posts a brief audio interview with Tokyopop Senior Editor Lillian Diaz-Przybyl at all about comics.
Derek Halliday is pretty excited about Udon’s Mega Man manga, and he posts some images to show why. (Via Comics212.)
Librarian and reviewer Joy Kim lists the manga she spent her own money on this year.
Lori Henderson posts some resources for a librarian looking for suitable manga for a 10-year-old reader. Lori also posts this week’s all-ages comics and manga at Good Comics for Kids.
Ryan shows off his original Shintaro Kago art at Same Hat!
Reviews
Kinukitty on Crossdress Paradise (The Hooded Utilitarian)
Gia on Gurren Lagann (Anime Vice)
Emily on Konna Koto ya Anna Koto (Emily’s Random Shoujo Manga Blog)
Julie on vol. 1 of Kurashina Sensei’s Passion (Manga Maniac Cafe)
Connie on vol. 25 of One Piece (Slightly Biased Manga)
Danielle Leigh on vol. 1 of Pandora Hearts (Comics Should Be Good)
Travers C on vol. 6 of Sundome (TaCK’s Pop Culture)
Julie on vol. 1 of Time and Again (Manga Maniac Cafe)
Erica Friedman on vol. 7 of Zombie-Loan (Okazu)
Technically, TP doesn’t even need the permission of the scanlators to use their translations. Since all translations are derivative works, Tokyopop as the designated rights holder already owns them.
What?! No, that’s not how it works. Translations are copyright the translator. If the translator doesn’t have publication rights for a particular work, s/he doesn’t have the right to publish his/her translation of that work. But if somebody else does own the rights, they don’t automatically get to publish any translation they can find. They own the publication rights for the original work, which includes the right to make a new translation — but they have no rights over existing translations. Unless they negotiate them separately.
The real irony is that if Tokyopop did take a fan translation without permission, the fan translators could sue them — even though disseminating an unlicensed translation is illegal…
Oops, didn’t close the italics tag around the quote. Now my comment looks overly emphatic.
No, that was me—sometimes the italics tag ends up inside the link and it makes the whole thing go kablooey. I usually check for that after I post, but I was in a hurry today and forgot.
Also: Good point. I didn’t think about it too hard, but your argument makes sense.
Yeah, while the person has the copyright on the original work, the translator has the copyright on the translation, which they don’t have a right to do much of anything with because it is a derivative work.
I could imagine a court maybe, but only maybe, assigning rights to a translation back to the original creator of the work as some sort of remedy/settlement . . . but only maybe. Sort of like the ending of that whole Spawn character lawsuit, where lots of rights were shuffled around to straighten things out.
Katherine—>
Your reaction used to be my understanding as well. But this is my current understanding, after consulting a lawyer on this very topic a while ago:
1. Copyright and authorship cannot be claimed or defended anonymously.
2. The legit rights holder cannot infringe on his own copyright.
3. Publisher is not required to pay for services rendered “voluntarily.”
4. If the wronged fan translator decides to pursue a case, he’d be putting himself in jeopardy for copyright infringement, which carries far greater financial penalties than anything he could come up with against the publisher.
5. She also said something called “in pari delicto” may apply. Apparently, the courts *can* decide that two wrongs does make a right.
The key here is that scanlation is distributed online, by the scanlator’s own accord. Once it’s out there, they have no real legal protection. They would have no more success suing a publisher for using their work, than they would suing a pirate site that used their work.
Also, translation is considered a very mechanical kind of work, with little creative input. Professional translators will disagree, but ironically the kind of literal translation practiced by most scanlators almost guarantees that the court will find it contained no significant transformative value, other than the conversion from one language to another… *something they had no right to distribute in the first place.*
One more thing to consider… corporation liability for copyright infringement is limited to somewhere in the 4 figures, if I recall correctly. However, individual liability for copyright infringement is *$25,000 per instance*, as every DVD movie reminds us at the beginning.
I would like to add, I’m not at all advocating this idea, nor do I think Tokyopop would ever consider such a thing. Merely noting this for ironic effect.
Simon: That still doesn’t mean that Tokyopop have the legal right to the translations. It does mean that if they decided to use them without asking, the scanlators would be in a very shaky position and probably couldn’t gain anything from suing. Effectively, Tokyopop could do this and get away with it, but that doesn’t mean they have the right to do it.
Once again, I must reiterate that “translations made available to the public” bit as key. Do you think scanlations are released with a creative commons license? The only people with any legal standing to use that work without any repercussion is the copyright owner. Derivative rights does not exist in this situation, because right to distribute the translation was never granted in the first place. You cannot receive derivative copyright protection on an infringing work.
The only instance a fan translator has any grounds for protection is if the translation was created for private use, and was never made available to the public.
Also, let me cite the case of Davis v. Mendenhall. Jack Mendenhall created painting based on a photograph by Hal Davis. Davis sued, and not only did he receive monetary compensation, *he was explicitly given the copyright to Mendenhall’s painting.* This is exactly what would happen if a scanlator and a publisher went to court. The publisher will not only win, but be explicitly given the copyright to the scanlation.