US copyright law needs to be reformed (feat. Liru)

Standard disclaimer: This post deals with both a hentai game and copyright law. If you’re under 18/don’t want to read about a hentai game, don’t read this, or at least don’t complain if you don’t like it. Also, absolutely nothing in this post constitutes legal advice. If you want legal advice, consult your own lawyer, because I’m sure as fuck not giving that out for free or letting anyone claim they relied on the stupid speculative shit I’m writing here. You probably already knew all this, but as usual I still have to write it. Now for the good stuff.

Here’s a game I’ve had sitting around for a while now. Starting this game up again raised a few unexpected questions in my mind. For example: what would happen to an American developer if he tried to sell a game featuring the protagonist boning a licensed character from an American property? If he didn’t have the license to use that character in his game, how quickly would the copyright holder’s attorneys jump on him? And should he even have to worry about that sort of thing?

If you don’t know what the hell I’m talking about, this is Ookami Shoujo to Issho, or Wolf Girl With You. It’s a doujin game that took h-game creator Seismic so long to make it turned into a joke, people online referring to the planned release for years as Wolf Girl Never Ever With You. But as you can see, it came out, because I played it. And it’s just what it looks like: a sort of slice-of-life thing where you return home every night and experience some domestic bliss with Liru, your happy and energetic werewolf girlfriend. Both Liru and the anime series she originally came from, Renkin 3-kyuu Magical? Pokaan, seem to be pretty much forgotten now, but I remember her being a big deal in the mid-2000s. That’s her normal outfit from the show in the title screen above, so you can probably see one reason why she was so popular, but she also had that animal-eared girl appeal. So it’s no surprise that I had this game lying around.

So Liru is your live-in girlfriend, and you get scenes with her, and they mostly either involve having dinner or sex. There are several scenes you can unlock depending on what you say to her when you have dialogue options available. It’s all very sweet and happy stuff, and you could even say it warms the heart a bit — sort of like Nekopara, only while Nekopara in its 18+ form was maybe 80% slice-of-life banter and 20% sex, this one flips that ratio around, featuring barely any story to speak of but a whole lot of fucking. Also, that model of Liru is animated and 3D, and there’s serious bounce there as you’d expect, and her lines are even voiced (though in Japanese only.) What more can you ask for, really.

I won’t put up any sex scenes here because I try not to just post porn on this site, but you can find them in five seconds with a Google search if you feel like it.

I guess Wolf Girl With You was so popular even among western fans that we got an official English version (note: link is NSFW for obvious reasons) which is otherwise not very common when it comes to doujin works like this. It’s honestly pretty easy to get the gist of what’s going on with minimal knowledge of Japanese, though. You might not really need any Japanese at all; it’s not a very complicated game.

Returning to the question of copyright I raised at the top, it’s pretty funny how a game like this can do so well for its creator in Japan — this is apparently the best-selling game ever released on the Japanese ero/h-game vendor DLSite. Here in the States, assuming the developer didn’t already have a license to use the character, I think there’s no way one or more threatening cease and desist letters wouldn’t have gone out from the corporate IP owner followed by a complaint in court if the C&D letter(s) were ignored. I’m not going to assume anything at all about what Seismic is doing, because for all I know his game is a licensed work. But there certainly are a whole lot of doujin artists who don’t have such licenses and are still able to sell their work.¹

I much prefer this more relaxed attitude towards intellectual property and fanworks, and not just because I like hentai games about licensed wolf girl characters (as much as I like Liru, Holo is still best wolf.) Copyright law can and should protect the author’s right to enjoy the fruits of their labor, but there’s a limit to how far that protection should extend, and here in the States thanks largely to the efforts of certain massive media empires, that protection is extended much too far.

Original character do not steal

Codified at 17 U.S.C. §§ 101 – 810, US copyright law is designed to protect “writings”, a term that’s now broadly interpreted to include many forms of expression. As you might imagine, this extends to character creation. If you played Persona 5 (and chances are good if you’re reading my Megami Tensei-obsessed blog) you might remember a classroom question about Maurice Leblanc, the French author of stories featuring the protagonist’s Persona, gentleman thief Arsène Lupin, and also Arthur Conan Doyle’s famous character Sherlock Holmes. Doyle was understandably pissed off about Leblanc using Holmes and sued him over it. Leblanc lost, but in a response that puts modern-day trolls to shame, he simply moved one letter around, renaming the character “Herlock Sholmes”, and was able to continue selling his stories.

The saga of Sherlock Holmes-related copyright battles extended all the way to a US Supreme Court case in 2014, but the most relevant part of it comes out of that initial Doyle-Leblanc fight. Specific characters are protected by copyright, but broad character types are not. It’s pretty obvious why this is: if an author were able to copyright a certain style of character or story, everything would be protected by copyright and no one would be allowed to sell works without paying whoever holds that particular right, effectively stifling the creation of new fiction.

This brings us back to the case of Liru and the fangame she stars in. The Liru featured in Wolf Girl With You seems fundamentally the same character as the one in Magical Pokaan, right down to her personality quirks and the unusual outfit she wears. Yet it doesn’t seem like the maker has had any problem selling his work. The same is true of thousands of doujin artists who produce and sell fan comics twice a year at Tokyo’s massive Comiket conventions.

Under US law, these would very likely fall into the category of derivative works, which make use of copyrightable aspects of existing works (in this case, characters and sometimes elements of the world they live in) to create something otherwise new and original. The authors of such derivative works can claim copyright protection, but only for those original elements they add — the characters and other elements they borrow are not themselves copyrightable by the derivative work author according to 17 U.S.C. § 103(b).

However, although games like Wolf Girl With You and many of the other doujin games, comics, and fanworks in the market would almost certainly be considered derivative works, US law also requires that the author of the derivative work be licensed by the original copyright holder, not just to sell it, but even to produce it in the first place. To me, this is where the trouble starts, specifically with the length of time that copyright protection in the US extends. Because for works created and “fixed in a tangible expression of medium”² on or after January 1, 1978, that protection extends for the author’s entire life plus 70 years, or in the case of multiple authors 70 years past the death of the last surviving author. And in the case of works made for hire, which would usually include works produced by a corporation, that protection lasts for either 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter.

There’s a complicated mess of other rules applying to works made before 1978, to sound recordings, and to works created under certain uncommon circumstances, but this is probably enough to illustrate just how long copyright protection lasts in the United States: for stupidly long periods of time. These periods have also been extended by Congress, thanks largely to political pressure applied by major copyright holders (Disney is usually the one “credited” in their efforts to protect Mickey Mouse from falling into the public domain, but they’re not the only ones responsible.)

This photo result I came across under the search term “old mouse” is the closest thing to a public domain image of Mickey I could find. Also, though they’ve produced some great films, fuck Disney now for both this and various other reasons.

I certainly support the artist’s right to protect their work. Hell, I should — I hold the rights to everything I’ve written on this site, and I’d be pissed if someone copypasted one of my posts somewhere without asking me, providing a link, and giving proper credit. However, that protection should have a more realistic limit. Compare the time periods listed above to those in patent law, which protects the exclusive rights over new inventions and processes for either 14 or 20 years from the date of filing for an application with the US Patent and Trademark Office. In these cases, the benefits enjoyed by the patent holder are protected, but not for a ridiculously long period of time. There’s good reason to protect patent for a shorter period than copyright (for example, to allow pharmaceutical companies to start making generic versions of brand-name drugs, hopefully at lower prices) but the century-plus copyright protections we now have are still extremely excessive.

Moreover, these periods have been continually extended by Congress, most recently in 1998, and there’s no reason to believe these extensions won’t continue into the distant future. It’s worth asking whether the interests of the grandchildren and great-grandchildren of the original artists in exclusively profiting off of their works outweigh the interests of the public in having works available to freely republish and enjoy without permission in the public domain.

Thankfully, copyright holders generally seem to tolerate unauthorized uses of their characters in the US and broadly online, at least when they’re not sold for profit, as with fanfiction. And sometimes even when they are — anyone who’s ever visited the artists’ alley in an anime, fantasy, or sci-fi con has seen hundreds of artistic depictions of popular copyrighted characters being sold without an army of lawyers descending upon the operation. Of course, it’s not like the copyright holders don’t realize what’s going on. Presumably most of them tolerate that much because cracking down would give them bad press, and perhaps they even see the use of their characters as a sign of their popularity and as an overall positive.

I spent four days of hell at the Baltimore Convention Center once, but I’d still do it again. I miss anime cons.

Even so, the copyright holders still hold the right to descend upon any artists who make unlicensed, unauthorized use of their characters. That right generally isn’t in question, even if an artist can successfully argue that fair use protects them in a particular case (which is a harder defense to sustain in these circumstances than many people realize.)³ The problem lies in the law itself, which has been repeatedly adjusted to ensure that most works made and published in the 20th century don’t fall into the public domain. As I see it, in this case as in many others, the individual right should be balanced against the social good — here, the rights of artists and their descendants to enjoy the fruits of those labors against the public interest in keeping old art alive and accessible. Which is certainly something I think government has a duty to regulate, instead of simply bending over for big copyright holders as they’ve always done. Not that I have any particular hope of that happening. It’s all about who has the deepest pockets, after all.

Which brings me back to Liru once again. As far as I know, she first showed up with the rest of the cast of Magical Pokaan when the original anime series aired in 2006, so the matter of public domain isn’t that relevant to her or to many other characters now used in fanmade works. However, the idea of the public domain and the benefits it provides to everyone does apply in this case, at least in a general sense. Even if there’s no question that the copyright holder has the right to prevent the creation of derivative works based on their character without permission, it can be to their benefit to have a permissive attitude towards the use of their characters by fans.

Of course, not every IP owner might be comfortable with letting people sell porn games starring their characters or even offer them to the public for free. That’s understandable, especially if they’re trying to maintain a family-friendly all-ages atmosphere (see Nintendo’s recent DMCA takedown of an NSFW Newgrounds game starring Princess Peach.) However, there’s something to be said for letting things go at a certain point. Speaking again of Persona 5, a few years ago Atlus received massive backlash for trying to strictly police streams of that game, even though they were arguably within their rights to do so. Perhaps as a result of this backlash, they seem to have eased up on such policies.

While that had to do with streaming and not the creation of fanart, I think a very similar principle is at work here.⁴ It’s really in everyone’s interests to allow plenty of leeway for fans to show their appreciation for the works they enjoy, which may involve the creation, display, and even to some extent the sale of fanworks whether licensed or unlicensed. There’s certainly a line to be crossed somewhere in this area — for example, if someone’s trying to pass off bootleg “official” merchandise — but I generally feel that if there’s no possibility of confusion over whether a work is official or fanmade, a more permissive attitude should prevail, and I hope that’s the new standard we’re approaching in the West.

Anyway, thanks for joining me for this serious legal analysis post. If you’re a staff member at Harvard Law looking for a new professor, send me a DM and we’ll talk.

As always, I’d like to know what you, the reader, think about this issue if you have an opinion. There’s clearly an ethical/moral element to this matter aside from the legal one, and I recognize that some creators might have reasons for wanting to maintain control over how their characters are used by fans. I’d also like to hear from fan artists if any are around, since a lot of my assumptions about how these laws are actually enforced here come from my secondhand perspective as a fan and buyer. And of course, I’m also interested in hearing from other fans like me. As usual, I don’t really have the answers — I only end up asking more questions. 𒀭

¹ Here’s where I admit that I know nothing about Japanese law, so I can’t really comment on any potential issues that could arise in Japan over copyright matters. This is only going off of a possibly mistaken assumption that the fundamentals of copyright law in Japan aren’t that different from those in the United States. If they aren’t, then clearly at least the approach to enforcement there is very different.

² This “fixed in a tangible medium of expression” requirement has its own whole complicated factors test that I won’t get into, since all the works we’re dealing with here are undoubtedly fixed in this way. However, in some cases, this requirement can place certain performances outside the scope of federal copyright law.

³ But note that if an IP owner sits on the right to enforce their copyright for a long time, they may end up effectively losing it — the doctrine of equitable estoppel lets the alleged infringer argue that since the IP owner knew and was clearly not bothered about the unlicensed use of their IP, they shouldn’t be allowed to suddenly change their minds about it. There’s a fundamental matter of fairness involved here; the idea is that other users may reasonably rely on the IP owner’s inaction as a sign that they’re taking a permissive attitude.

Like other forms of equitable defense, it’s absolutely not a sure thing, though. As always, every case has its own quirks and has to be taken on its own.

⁴ However, by contrast streaming is still in a gray area. I might get into the fair use doctrine and transformative art as they relate to streaming in a later post.

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