Why AI content generators can’t kill art (part 1: the legal framework)

Last year, I wrote about the short anime series Time of Eve, a science fiction story dealing with the relationship between humans and a set of androids with newly found sentience. In the course of that deep dive into the anime, I went on a tangent into AI “art” generation tools, asking whether artificial intelligence can truly create art as opposed to simply whipping up something derivative based entirely on user prompts and inputs and drawing from a pool of human-created work.

Time of Eve does indirectly deal with the issue of AI and creative expression, but I’ll be getting to that in the second part of this post run. The series is good though; go watch it.

I’m happy to say, reading that post back that after just a year, that it feels badly outdated, because we now have tools available to create far more impressive images, word collections, and sound files. The image generator Midjourney is so impressive that it generated a piece that won first prize in a digital art contest at the Colorado State Fair — a choice by the board of judges that pissed a lot of people off and got a ton of publicity for the winner, one Jason Allen, a tabletop RPG creator.

And I’m right there with the angry torch and pitchfork mob this time. The idea that an AI-generated image can win an award in the category of “digitally manipulated photography” might seem pretty logical — after all, that sounds like digital manipulation, doesn’t it? But digital tools made for artists like Photoshop and GIMP still require complete human control and input, whereas Midjourney requires that the user enter text prompts. If you’ve used DALL-E, you know how this works: type in whatever it is you’re looking for and you’ll get some depiction of said thing, assuming the AI can work out quite what it is you want. These tools don’t create art, as far as I can tell: they generate images that may or may not resemble art depending on how broadly you define the term.

In that Time of Eve analysis last year, I suggested that this material isn’t art, in part because there’s no intent to express anything behind the generation of each specific work. Some people may define art differently, but I can’t consider something art without at least this intent to express. I don’t like abstract expressionism; the drip paintings of Jackson Pollock and the color field paintings of Mark Rothko leave me completely cold, but I would never accuse them of not being art for just that reason. The same is even true of two guys I completely dumped on a while back, Damien Hirst and Jeff Koons — I find their work totally soulless and empty, but I can’t say they’re not trying to express something through it, even if that something is just “I like tricking rich people into thinking this piece has value” (in which case I actually respect that, but that’s a different matter.) And no matter how I might feel about their work, all four undoubtedly used techniques and put thought into those techniques in the creation of their work.

I actually like this “Théâtre D’opéra Spatial” image in itself more than a lot of what the above four guys have created. If you had just showed this to me and told me a human had painted it, I’d believe you, and it seems the judges felt the same way. It’s aesthetically pleasing.

I was going to post “Théâtre D’opéra Spatial” here, but the legal status and proper attribution of the image is in question, so instead here’s Kiryu on the dancefloor as a placeholder. I might replace this in the future if possible.

It’s also not art. It’s a mix of elements from pieces, images many of which were created with human thought and intent behind them, but put together in a way without that intent to express, by a machine fulfilling the requirements of a series of prompts.

Shockingly enough, US law isn’t lagging as far behind on this high-tech matter as it usually would be. One of the most relevant cases to this issue has to do not with AI but with animals. You may have heard of the “monkey selfie” case Naruto v. Slater, billed as an Indonesian macaque named Naruto (?) suing a wildlife photographer, David Slater, over the ownership of photos a group of macaques took when Slater placed his camera on the forest floor and let them approach it.

A few of these photos turned out well, and when they were published on Wikipedia without Slater’s permission, he came down on the Wikimedia Foundation arguing that he held copyright to the “monkey selfies”, with Wikimedia arguing in its defense that no one held copyright because the creator of the photos was a non-human and hence that they were in the public domain. The US Copyright Office found in favor of Wikimedia, putting the case to rest and letting Slater at least compile these and other photos into a book of his otherwise copyrighted work.

And now in comes People for the Ethical Treatment of Animals, inserting themselves into a controversy that nobody asked their opinion about but that they insisted on contributing to. PETA disputed both Slater’s position that he held copyright and Wikimedia’s that nobody did, instead asserting that Naruto himself held copyright since he snapped the photos. PETA sued as next friend of Naruto, a method of bringing legal action on behalf of a minor or of someone not mentally competent to act in their own interest. (They also very generously volunteered to act as administrator of the proceeds resulting from Naruto’s copyright.)

The Ninth Circuit on appeal found that PETA hadn’t properly established next friend status with Naruto, but far more importantly for our purposes here, it also found that PETA had failed to show that Naruto had standing under the Copyright Act, standing being someone’s right to sue in the first place.1 Part of the reasoning behind the decision not to extend copyright protection in such a case is that non-human animals don’t have the ability to express an “original intellectual conception.”2

The caselaw surrounding AI-generated images and other media is still nearly nonexistent, but early this year, the US Copyright Office confirmed that it will not recognize copyright in such media because it lacks sufficient human authorship. This decision arose from an ongoing fight in which one Dr. Stephen Thaler, co-creator of another AI image generation system called the Creativity Machine, claimed copyright over an image titled “A Recent Entrance to Paradise”. Dr. Thaler has filed suit disputing the Copyright Office’s rejection of his application to the DC district court, where the case is now pending.3

As Thaler’s attorney has argued (linked in the Smithsonian article above):

A.I. is able to make functionally creative output in the absence of a traditional human author and protecting A.I.-generated works with copyright is vital to promoting the production of socially valuable content. Providing this protection is required under current legal frameworks.

Setting aside Mr. Abbott’s use of the extremely vague term “socially valuable” to describe AI-generated content (it might have some social value anyway, sure, but that may even work against his argument considering the social value of the public domain concept) I believe his argument is total nonsense.

So let’s take it apart. AI makes “functionally creative output in the absence of a traditional human author.” But there is a human author involved. Many human authors, in fact, since the AI wouldn’t be able to generate a damn thing without its pool of existing human-created work to draw upon. That argument also ignores the human input necessary to generating said output, though I’d argue as the Copyright Office does that creating prompts, even many of them for the purposes of fine-tuning, doesn’t count as “human authorship” and doesn’t invest the prompt-writer with copyright ownership.

I suppose that’s why Abbott inserted the “traditional” to qualify his use of “human author” here, but it hardly matters, because again, this is an unforgivably vague term. What’s a non-traditional human author? The prompt-writer? The thousands or more of artists whose work was used (with permission or without, I’m not sure — that’s another issue entirely) to train these AI generators?

And while we’re picking apart his words, how about the use of the term “functionally creative”? Either something is creative or it isn’t. Using “functionally”, as far as I’m concerned, is basically an admission that both Abbott and his client know they can’t exactly argue AI-generated works are “created” in the same way as human-made works are, with actual thought and consideration instead of mechanical processes. In fact, I’d argue Naruto the macaque had a better claim to copyright over the photo he took than Dr. Thaler has to “A Recent Entrance to Paradise” through the Creativity Machine for the simple reason that a non-human animal can at least act independently and make its own choices without human prompting, whereas an AI can’t.4

Not yet, at least. But I’ll leave that for the second part of this post when I move away from the legal aspect of the AI “art” generation question and into the philosophical and moral ones. That’s something I’m not actually qualified to talk about, but I will anyway, because this really is far more than just a legal issue and I take an interest in both of its sides.

In the meantime, if you have any interest at all in these questions, be sure to follow the progress of Thaler v. Perlmutter, linked above at Court Listener. It may turn out to be a landmark case, though I hope not for the wrong reasons. Really, the suit should probably be thrown out on summary judgment.

From Pupa (2014), as a reminder that even bad art is still art. This isn’t a question of quality but rather of intentional creation.

Before I end this post and start working on the next, I’ll make a depressing prediction (as you expect from me!) I believe that as large, influential corporations see the value of AI-generated content, they and their special interest groups will push for changes to the Copyright Act to get rid of any ambiguity around the human authorship requirement commonly read into it in favor of AI-generated work that they don’t have to pay real flesh-and-blood visual artists for (and eventually also writers and musicians.) At the very least, I think they’ll be attracted by Stephen Thaler’s “my AI system is working for me under the work for hire doctrine” argument. I don’t see how this can be avoided unless these corps can somehow be shamed into not taking this route.

Well, regular people like us have just about no power over that. It still matters, but as with so many other things in this world, it feels to me like watching a trainwreck in slow motion — you can’t stop it from happening but just have to look on in horror as other people cry and laugh at it all.

But since it’s all useless, an effort may as well be made, because what do we have to lose? More on that whenever I can get to it, and maybe even without an endnote section nearly as long as the post proper. Until then.

 

1 I should note that the standing of animals under US law in general is a more complex issue. However, the Copyright Act specifically excludes non-human standing, and as a practical matter it’s hard to imagine what a macaque would do with its copyright ownership if the court had found in its favor. Naruto certainly didn’t know or give a damn about any of this nonsense, and the court rightly expressed doubts about PETA’s ultimate motives in their involvement.

2 Arcane legal hair-splitting time now, because it can’t be avoided. The US Copyright Office states in section 310.5 of its guide to copyrightable authorship that it “will not consider the author’s inspiration for the work, creative intent, or intended meaning” in determining the originality of authorship. However, it also states in section 306, The Human Authorship Requirement, that “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’ (TradeMark Cases, 100 U.S. 82, 94 (1879).)” (Citation included in case you really want to dive deep into the exciting history of US copyright law.)

I read this to mean that while the Copyright Office doesn’t care about the artist’s specific intent and won’t bother making courts try to be mind-readers in that sense, it also demands that there be some kind of intent to create, which is proved simply by the creation of the work. Whether any of the smartest/most potentially self-aware non-human animals are capable of “original intellectual conception” (higher apes? Dolphins? Maybe crows?) is an interesting scientific question, but the legal one has been answered, at least for now.

Finally, I should note to be fair that the Copyright Act doesn’t explicitly require human authorship — this is just the understanding of the Act’s plain language by the Copyright Office and courts up until today. There’s good reason to believe that won’t remain the case too much longer, as I note near the end of the non-endnote section of this post.

3 Thaler is trying to pull a pretty absurd trick here. While acknowledging that the Creativity Machine can’t legally hold copyright in its product, Thaler himself claims the copyright under one of two possible legal theories: first, as the owner of the AI and therefore the AI’s product according to the accession and first possession doctrines of property law, just as a farmer owns the calf birthed by a cow he owns, or as the owner of a 3D printer owns whatever it produces. The trouble for Thaler here is that neither these nor any of his other comparisons (see p 13 of his complaint on) have anything to do with copyright investment and ownership.

In the alternative (meaning if the court were to properly reject the above argument) Thaler argues that he holds copyright in the Creativity Machine-generated piece under the work for hire doctrine. This is a well-established doctrine that grants copyright ownership to employers who hire artists and writers to create works.

Thaler is using this doctrine in a novel way here, to put it politely. To put it impolitely, I think his interpretation of work for hire is a load of shit. But we’ll see what the court thinks assuming his suit gets that far.

And just one more dig at Dr. Thaler and/or his attorney because I can’t help it: read paragraph 31 of the complaint. This argument of “well we could have tricked the Copyright Office by not telling them it was AI-created” is so beside the point it’s almost hilarious. But it’s also a scary point to make considering that the best AI-generated visual “art” does closely resemble human-created work.

4 I believe this point highlights one of the contradictions from the pro-AI copyright camp in this argument: on one hand, some defending Jason Allen and “his” piece claim a program or system like Midjourney or Stable Diffusion is merely a tool like a paintbrush or Photoshop, but then Dr. Thaler in his complaint claims that these systems possess creativity (see the “functionally creative” comment from his lawyer above.)

I see these as more tools than not, though they’re clearly not simply like a paintbrush or a program manipulated directly by a human artist as some are claiming (and even disingenuously claiming, maybe.) But I think the “AI generated content is art” crowd will have to pick an argument and stick with it. You can even see this self-contradiction in Thaler’s complaint: his first argument implicitly takes this “my system is just a tool” approach.

Don’t go to law school*: A lament and a warning

This Blaugust challenge has given me a lot to think about. For example, how should I fill up an entire month with daily posts when I can normally barely manage a weekly schedule? I hope I’ve done well this month with not too much tossed off bullshit.

There is one matter I’ve never really touched on the site, or not in much detail at least. It’s an issue I’ve been thinking about for almost ten years, just about as long as I’ve had the blog up, but since it wasn’t really related to the blog’s subject matter I never wrote about it. Now seems as good a time as any, though, since I’m trying to finish out this month of daily posts, so here it is: don’t go to law school.

This will take some explanation as you can tell from the length of the scroll bar, so prepare

I guess I could have ended this post with its title, but there are a few more important points and clarifications I should make. That’s what the asterisk in the title is for, since there are always some exceptions. First, I’m talking about American law school in this post because that’s the kind I attended and the only one I’m familiar with. I’ve heard that attorneys in Europe and other parts of the world major in law in university and don’t necessarily have to pursue an advanced degree past that stage like we do here (I’d say a law degree in the US, a JD or Juris Doctor, is roughly equivalent to a master’s degree — we’re not doctors despite the degree’s formal name, though we do get the right to that fancy Esquire title upon passing the bar exam that I’ve never used once in my life.) I’ve also heard the Canadian system of law schools is similar to ours, but I don’t know nearly enough about the situation in Canada to address it.

But I can speak to the situation down here, which is utter dogshit. I’ve been reading recently that law school admissions are down in the US. To any younger American lawyer or law grad who’s grown up in this environment, this should be no surprise at all. For those who don’t know the profession, here’s a very rough rundown of the typical path to becoming a licensed attorney (obligatory note: nothing in this post is professional advice and don’t rely on it, do your own research, it’s all based on personal experience.)

1) Get a bachelor’s degree. It doesn’t matter what kind, but given law’s emphasis on reading, writing, and rhetoric, most people go for something in history, political science (this was mine), or English, something in the humanities. Master’s degrees, MBAs and the like are also fine if you happen to have them, but not necessary at all. If you’re STEM, depending on your focus, you might also be able to break into patent law, which most of us are practically barred from.

2) Take the LSAT. As the name suggests, this is sort of a much harder and more frustrating SAT only without the math, designed specifically for law school admissions. It’s administered several times a year and scored on a scale from 120 to 180. Anything above a 160 is generally considered respectable, though if you can break the 170 mark you’ll be in a much more secure position. It is possible to improve your performance somewhat by studying and practicing on old exams and samples, and many candidates sit for the exam up to three times to try for a higher score.

3) Apply. This is a real pain in the ass and requires you to submit a lot of documents and transcripts similar to what you had to do for college admissions, only this time you probably won’t have a school counselor to walk you through the whole process.

This part of the process is filled with traps and pitfalls. Most law schools aren’t worth attending (more on that below) and charge insanely high tuition. Many students aim for the very top elite schools (Yale, Stanford, and Harvard being at the top of that pyramid) but if you can get in-state tuition at a respectable public law school, that may be your best bet. Though note that some states’ “in-state tuition” is still unforgivably high (California being the worst offender. In-state at 50K a year, huh? Why even bother with the distinction at that point?)

4) Get accepted and make it through three years of law school. Easier said than done.

5) Pass the bar exam. Also easier said than done. On top of your almost certainly extortionary tuition, you’ll have to pay out the ass for a bar prep course, money that goes to many of the same companies that run SAT and LSAT prep courses. Kaplan and their competitors are scavengers that feed off of the corpse of the rotting American post-secondary educational system.

If you fail the bar your first time, it’s not the end of the world — unless your new legal job is tied to your passing it, that is. But there’s really no shame in failing once otherwise. The exam tends to be pretty difficult, specific difficulty depending on the state, and pass rates are typically around 60-65% and sometimes even lower.

Failing twice is another matter. You can theoretically take the exam as many times as you need to pass it, but eventually it can become both a running joke and a waste of time. This has unfortunately happened to law school grads before.

That’s, again, a very very rough guide to becoming a licensed attorney. Note that I didn’t say an employed licensed attorney, however. Because even passing the bar absolutely does not guarantee you a job. Maybe it did back in the 80s, but it doesn’t now and hasn’t for a long time.

Here’s one piece of advice you’ll hear over and over if you seek it out (say on one of the subreddits or the forum top-law-schools.com): if you want to attend law school in the US, you have to attend one with a great reputation. There are about 200 accredited law schools throughout the country, and of these maybe a few dozen are worth attending, and even then only under the right circumstances, i.e. a serious reduction in tuition for merit because you got a high LSAT score and have a high or at least a respectable undergrad GPA. Or maybe you got into your local paper because you saved several children from a burning building, but even that might not help you out here.

Make no mistake: numbers matter here. American law schools live and die by their US News & World Report rankings. This list is reissued once a year and is based largely on the average LSAT scores and GPAs of incoming and recent students. Partly for this reason, schools with good reputations are very selective, and schools with stellar reputations won’t even bother considering you unless you have great numbers to show them. And no, they won’t give a shit about your great personality, unfortunately. An utter asshole with a 180 and a 4.0 GPA will excel in place of a decent person with more standard numbers (and note that Ted Cruz and Ron DeSantis are Harvard Law grads if that tells you anything.)

Time to recycle this now even more relevant screenshot. The LSAT logic games are a massive pain in the ass, but you can and will learn them if you’re taking the exam.

Yes, there are a ton of American law schools that will accept you without those great numbers, but these schools are almost without exception not worth attending because of their mediocre and in some cases abysmal bar passage rate and job placement numbers post-graduation. If you’re interested in any single law school, be sure to check their stats on Law School Transparency. Don’t believe the lies told by law school admissions officers who are only interested in securing your tuition funds. (Here I should add: I’ve known excellent lawyers who graduated from schools lower down in the rankings, and after a few years in the profession people care far more about your professional ability than the school you attended. The real problem is actually getting that experience to start with. It’s rough, but name and reputation absolutely matter at this point.)

But let’s say you make it through and manage to pass the bar and land a legal job. Great! Now you’re a working attorney. But is that something you really want to be? You’ve surely thought about the reasons you might want to get a law degree. I’ll run through a few of the most common reasons I’ve heard, both from fellow students in the past and from prospective ones. Here’s the template: I want to become a lawyer because…

I like to argue.

I’ve heard this one a lot. Often it seems tongue-in-cheek and there’s really more to it, but taking it at face value, this isn’t a great reason to become a lawyer. Sure, being an attorney can involve making a lot of arguments in briefs and possibly also in court depending on where you work and what you work at, but if this is really your reason for entering the profession, don’t. If you like to argue, then get on Twitter and argue. You don’t have to get an expensive and life-draining degree to do that.

Also, overly argumentative lawyers are pains in the ass. There’s being a zealous representative of your clients’ interests, which you’re duty-bound to be, and then there’s being an asshole, and the attorneys who consistently cross that line are widely hated in the profession. Usually hated by judges, too, and that’s something you want to absolutely avoid if at all possible.

I want money.

This is at least a refreshingly honest reason if you’re willing to openly admit to it. Some students are attracted by the money, after all. But it’s probably the worst reason of all to become a lawyer for the simple reason that this perceived “lawyer money” largely doesn’t exist. Back in the 80s and 90s, the profession may have been more lucrative, but it sure as hell isn’t now, and take that from someone who’s been in the legal job market for years now. The attorneys who make $120K+ salaries almost all work at big law firms, either straight out of school or after clerking for federal judges for a couple of years. Such jobs are difficult to get because of just how competitive the hiring process is, and if you’re not at an elite law school you’ll have a hard time unless you’re at the top of your class. Additionally, these attorneys are worked like dogs and are expected to bill massive hours, and as a result the long path to equity partnership at these firms (where the real money is) is littered with the bodies of burnouts.

No, most available legal jobs in the US are at small firms, government agencies, legal aid, and district attorney/public defenders’ offices and pay normal person salaries. I won’t tell you my own salary except to say that it’s regrettably not over $120K. It’s decent enough, but not more than what a lot of other “middle-class” professionals make, and certainly less than what a lot of my friends in IT make. If you want money, maybe consider IT instead? Because the vast majority of lawyers are not making amazing money and start closer to the 50-60K range. Some of these same jobs, particularly those at high-volume firms, will also work you to the bone and may even make you question the meaning of your own existence, and all without a commensurate salary (and again I speak from experience there.) If that’s shocking to you, then good — maybe you can rethink this reason for attending law school if that’s what you were aiming for.

Also consider that either way you may be saddled with hundreds of thousands in debt that you can’t even discharge with a bankruptcy. You probably won’t end up underground like Kaiji here, but it’s not much better.

You can do anything with a law degree.

Anyone who says the above to you is either misinformed or lying. A JD is a shackle; it chains you to law as a profession, and you can’t very easily break free from it if you decide you’re sick of law five or ten years down the line (a common angle taken by non-legal employers: “Why would you leave the lucrative and wonderful practice of law? You’ll just run back to a legal job at the first opportunity.” Both of which are complete misunderstandings as you can see above, but good luck convincing them otherwise.)

Though if you do manage to get out of the profession for something more lucrative and/or personally fulfilling, then God bless. I hear Hololive is taking audition submissions, and knowing Nijisanji they’ll be putting out about twelve more waves of VTubers in the next year. Your army of simps will pay you more in superchats and donations than your legal employer ever will. Just don’t ever, ever tell them you’re a lawyer. On top of the usual doxxing concerns, they will ask for legal advice in superchats and you absolutely do not want to risk creating an implied attorney-client relationship with GuraFan_420_69.*

I want to be a respected professional.

Nobody respects lawyers, and a lot of people downright hate us. If you care about what society thinks of you, do something else with your life.

Okay, this answer is partly a joke, but not entirely, because this is still a bad reason for studying law. Entering a profession just because of its perceived respectability, often at the insistence of family, is a terrible idea. I say that fully understanding how difficult it can be to withstand that kind of pressure. Just remember that you’ll be the one going through this ordeal, not them.

I want to help people.

Out of all the common reasons for attending law school, I think this one is the best. As an attorney, you can become uniquely positioned to help your fellow human, especially today in the United States where certain rights that many consider fundamental are being dissolved (yeah, I already got political here with the Ted Cruz and Ron DeSantis comment so whatever.) Aside from that extra-publicized issue (and rightly so) of reproductive rights, there are all sorts of issues to deal with in the fields of immigration (bonus points here if you speak a second language commonly found in the US like Spanish), labor, and landlord-tenant relations.

However, there’s another warning to heed here: getting into these areas can be difficult depending upon where you’re starting out. For one, they don’t pay that well (as you might imagine, since your clients generally won’t be rich.) Legal aid organizations do exist around the country and keep attorneys on staff, but these also don’t pay much. If you’re thinking that might make it easier to get those jobs, however, think again, because even low-paying legal aid organizations have selective hiring processes. And if you’re in a position where you can barely feed yourself on top of paying your probably large student loan debt, you won’t be in much of a position to help others. Still, if you can make it work, legal aid is an excellent calling, and if you’re instead in a traditional firm, taking pro bono work after you’re established is a great way to give back to the community.

I don’t know what else to do.

The final reason I’ll be considering, and another bad one. This was also my reason. I wasn’t sure what else to do with a fucking political science degree anyway. I certainly didn’t take it into politics, which I am thankful for at least.

All that said, does the title of this post still hold up? I’d say it does as long as you keep the exceptions in mind. I believe that likely most Americans thinking about law school now shouldn’t apply for it. That group might have even included me ten years ago, but I’m stuck in the profession now. I thank God I’ve found a niche that I can tolerate, but that was partly thanks to luck, and a lot of people can’t manage it. It’s not even a niche I would recommend getting into, which is partly why I’m not going into detail about it. It was more of an escape for me, and then not even a complete one.

But in the end, it’s your life, and you have to make your own decisions about how to spend it. If you’re dead set on also working as an attorney, all I can advise is that you do your best, take in and properly filter all the information and advice that you can, and absolutely do not walk in expecting to get the best possible outcome for yourself, because that’s just not how life works. I know I’m a pessimist, but here I think I’m being balanced — realistic expectations are vital to maintain. Law school is viciously competitive, everything is graded on a curve, and if you don’t already have connections in high places or a guaranteed well-paying job waiting for you by the end, you’ll have to rely on a mix of luck and skill to make it through to the other side in good shape. If you’re up for that challenge, then I honestly wish you the best of luck. We need good, decent people in this profession — otherwise society will suffer even more than it is already. The problem is the system doesn’t make always make it easy to do the best thing possible.

If you’re already a law student reading this, I also don’t want to discourage you. Sheer motivation isn’t enough to secure a great future, but it’s a necessary element and it does help a lot. And look, I’m still around and doing relatively okay, so it’s not actually the worst decision in the world to study law in the US if I’m any indication. It’s just a decision I might not make again, knowing what I know now. And again, my experience is just mine — I’m drawing from that and stories I’ve heard from friends and colleagues in the profession, but other attorneys and law grads might have different stories to tell you.

And anyway, I wouldn’t be the same person I am today if I hadn’t gone through these ordeals. I can’t say whether that would be a good or bad thing, but it’s hard to talk about regret when you factor that element in.

We’re not kids anymore and life isn’t supposed to be easy anyway. I just don’t want to see people making it harder than it needs to be. And Azumanga Daioh is actually relevant here if you can believe that. I’ve been rewatching the whole series lately, so expect something on it soon-ish, it’s worth a serious look — I can appreciate some parts of it a lot more at my current age and point in life.

Now I’m at the point where I’ve really been rambling too long, so I’ll leave it here. Tomorrow I’ll write about something lighter (and it will be a far shorter post, I can promise that. Until then.)

 

* I know there are lawyers who stream on YouTube, yeah, but I’m sure they have ways of dealing with this. I just don’t know what they are. Not sure a plain disclaimer is enough, but I haven’t looked into it anyway since I have no interest in streaming myself.

Initial thoughts on the Activision Blizzard lawsuit, or why strict corporate culture isn’t always a bad thing

A few weeks ago, the California Department of Fair Employment and Housing (DFEH) filed suit against Activision Blizzard. In its complaint (linked here in full) the state agency alleges that the corporation has instilled a culture of sexism affecting its female employees. Many examples of the alleged sexist behaviors are listed, including unequal pay for similar work and explicitly sexual comments and advances towards women in the workplace. The complaint includes specific examples, most of which are revolting on a gut level, even to the point that reader discretion might be advised.

Activision Blizzard’s Santa Monica headquarters, where many of the alleged facts of the case allegedly went down (Source: w:User:Coolcaesar – Own work, CC BY-SA 3.0.)

None of this is news at the time of writing. When this story broke late last month, it was widely talked about. Sadly, there also wasn’t all that much surprise expressed over it. Activision Blizzard was already widely regarded as a shit company for its lousy business practices and general disregard for its customers, placing it in the same trash league as EA and Ubisoft. But it also seems that the allegations of internal sexism and “frat boy culture” as the California state agency puts it at Activision Blizzard weren’t such a shock either — Ubisoft and other AAA companies have had similar charges leveled against them.

I’m not going to approach this case from a legal perspective, or at least not yet, partly because I don’t know nearly enough about California employment law or the facts of the case to analyze the complaint on that level. California tends to be more protective of the rights of employees (and tenants and consumers for that matter) than other states are, and from that perspective DFEH may be able to come down harder on the company than another state’s counterpart agency would, but anything beyond that would be too much speculation at this point.*

But this time around I’m much more concerned with the allegations and their implications than with the legal aspect of the case. As far as the complaint and its alleged facts go, if even a fraction of them are true, they’re evidence of a degraded culture at Activision and at any other company that encourages or even turns a blind eye to such practices. I know there are some shitty things about the strict sort of generic “corporate culture”, but a decently professional one can discourage such disrespectful behaviors towards fellow employees and subordinates and can punish them when they occur. In theory at least, since these tools are only as effective as the people with the power to use them.

Of course, Activision has asserted that DFEH’s allegations are meritless and that it will prove so in court, and internally it’s showing some defiance towards the agency if this leaked email from the Chief Compliance Officer is any indication (also noting the different tone from the company’s now-former president.) I’m looking forward to seeing what sort of defense the company puts up assuming it actually backs these words up with actions and doesn’t just fold and settle — a common outcome even after this kind of legal smack talk. But a lot of that depends on what evidence the defendant can bring to counter the allegations made against it.

The California Supreme Court standing by to hear appeals, assuming the case gets that far.

While sexism is considered a divisive matter among the various gaming communities, said communities have perhaps never been more united as they now are against Activision. Again, this is partly due to Activision’s established reputation for putting out poor, shoddy games in recent years and for generally treating its customers like ATMs, but great anger has also been inspired by the facts alleged in DFEH’s complaint. This kind of unity among our communities is not all that common to see, either. Online debates and fights are constantly being waged over games and their contents, their depictions of different types of characters and the acts portrayed in them, and especially over those involving sex and sexual appeal.

There’s plenty of room for disagreement over the contents of the games themselves. If you’ve read this site for a while, you know where I stand on that, both in terms of games and other media. I hope there isn’t any real disagreement about this sort of criticism, though, outside of the usual suspects standing on the fringes. The right of the employee to be treated on an equal basis regardless of gender (or race, religion, orientation, etc. etc.) should not be in dispute. There may be certain gray areas where off-color jokes made in the office are concerned, but the best rule to follow is always to err on the side of caution — if you think someone in the group might be put off by what you consider a joke, don’t make it in that group.

This is not a matter of fun, lighthearted office talk being ruined by “snowflakes” but rather common sense. If someone is truly so uptight that they’d make the office a completely miserable, dull place to work, that person tends to be left out of the group anyway, at least as far as I’ve seen. (And it has to be said that the alleged “jokes” cited by DFEH’s complaint are not even really in a gray area. They’re the kinds of comments and actions that would rightfully get you fired from most other companies on the spot, or at least seriously reprimanded and subjected to rigorous “sensitivity training.”)

I haven’t even addressed the most serious allegations made in the complaint against Activision, which include a suicide following some extremely inappropriate sexual activities considering the context. I won’t dig deeper into these allegations for the reasons I’ve stated above, but I will be following the case to see where it goes from here.

For the time being, though, I will back up calls to boycott this company and its products, because there’s no other real way to make its executives and board of directors feel the pain necessary to encourage them to change. We’re their lifeblood, after all. I get that boycotts are notoriously difficult to put in place, especially for fans of established series, but it’s important to back these sentiments up with action. And if the facts in this case are still too unclear for you to act upon (since they are still alleged, though generally speaking a state agency shouldn’t bring a suit like this without some solid evidence — but the discovery process will uncover everything) I have another totally sufficient reason for everyone to shut out Activision Blizzard, one that’s completely, 100% without doubt: its avowed support for the CCP’s crushing of any semblance of Hong Kong independence, to the point that it retaliated against a Hong Kong Hearthstone player for speaking his mind on the subject in 2019.

Be like me and play a ton of Sega games instead. As far as I know, these guys haven’t (allegedly) done anything wrong. And I still need to get past Chapter 5 in Yakuza 0 too; all these damn minigames and sidequests have been distracting me.

Finally — and this is not legal advice or a specific comment on this case, but again simply common sense — if you run a company that has a legal and an HR department, it might be a good idea to make sure they’re effective and that their advice is actually heeded and put into practice. This might be biased coming from a lawyer, but you pay us for a reason, right? Not just to be window dressing?

 

* For the interested, the relevant parts of California’s anti-discrimination code can be found through following the instructions listed here, and this site provides a summary of the state’s Equal Pay Act. The full texts of both code sections are available on the state legislature’s site.

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.

On the use of public office to suppress the display and sale of artistic works

Weeks ago, I heard about a controversy in Australia having to do with the sale of certain manga in the Sydney branch of Kinokuniya, a Japanese bookstore chain with locations around the world. Last July, South Australian state legislator Connie Bonaros made a complaint regarding volumes sold there, including such titles as Eromanga-sensei, No Game No Life, Sword Art Online, and Inside Mari, on the grounds that they violated Australian law regulating certain types of sexual artistic depictions. The exchange of letters between Bonaros and Kinokuniya officer Keijiro Mori can be found in the link above, but the gist seems to be that Bonaros thought some of the anime-styled girls in works that include sexual content looked like minors and came to the conclusion that their sale in Australia constituted a violation of the law.

If we talk about how horrible this is and have it banned from stores, people will definitely stop reading it! That has always, always worked.

I feel bad for Australian manga and light novel readers who were into those series, and especially for fans of No Game No Life, a few volumes of which received an outright sale/importation ban. It’s worth mentioning that we’re not even talking about some hentai doujins and manga you might find in the seedier shops in Akihabara; most of the affected series are massively popular and none are pornographic as far as I understand. It also seems weird that a South Australian state legislator can have any say at all over what books can be sold in Sydney, which is located not in South Australia but in New South Wales. That sounds to me something like a Virginia state senator getting books removed from a New York bookstore, which would be unthinkable here in the US.

But I’m not an expert in Australian law. In fact, I don’t really know anything about it except that the Australian constitution doesn’t contain an explicit protection for freedom of speech or expression. Since Bonaros is an Australian lawyer and I’m an American one, I’ll defer to her understanding of her own country’s law. I just hope fans and other artists in Australia can find a way to gain a stronger voice in politics.

All that said, I think the victory won by Bonaros has to be examined more closely. It raises a question that’s relevant to every fan of anime, manga, video games, literature, and art in general living in any country on Earth. That is: how far should a public official be able to use the power and influence afforded by their office to suppress the display and sale of an artistic work? Because that is apparently what Bonaros did. No legislation seems to have been proposed; no evidence was brought forward to show that the contents of the listed works actually violated Australian law (or if it was raised, it wasn’t mentioned in the reports I found.) And there’s certainly been no solid evidence brought forward that said works have a harmful effect on their readers or on society in general. It seems that Bonaros simply saw some manga that rubbed her the wrong way, used her platform as a legislator to complain about it, and successfully pressured Kinokuniya into removing it.

I can’t pretend that this incident in Australia doesn’t affect fans of manga, anime, or related works here in the States either. Because Bonaros also requested a list of other countries in which Kinokuniya still sells No Game No Life and the other titles she objects to, presumably including its American branches, and pressured the company to ban their sale globally.1 As a result, it’s now undoubtedly an issue for us Americans as well. And since she’s made it an issue for us, let’s have a look at US law to see whether or how such an incident might play out here.

Unlike my last couple of posts on this general subject, this time around we’re specifically concerned with the First Amendment. Here’s the original text in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Pretty short considering how much has been said about it since it was ratified in 1791. And we’re only concerned here with the middle clause, and specifically with this statement: Congress shall make no lawabridging the freedom of speech.

It’s understood that artistic expression counts as “speech”, and this naturally includes manga (and visual novels, and drawings, etc.) However, that doesn’t mean these are all entirely safe from regulation. Congress has made laws abridging the freedom of speech since, but these were passed when the courts carved exceptions out of that guaranteed protection. An example of such an exception is found in the Supreme Court case Brandenburg v. Ohio2 (note: citations provided in the footnotes in case you want to look them up) in which the Court determined that the government could not regulate speech on the basis of violent or incendiary content unless it was 1) “directed to inciting or producing imminent lawless action,” and 2) “likely to incite or produce such action.”

So it’s unconstitutional to arrest someone for throwing out extremist political views, for example, unless they’re actually stirring up a group to do some immediate violence or lawbreaking. It’s a very limited restriction but an important one — essentially, the Court has said that the government shouldn’t have the power to restrict this kind of speech unless it’s about to cause actual harm.

Artistic expression has also been restricted in limited ways and on similar grounds. Certain kinds of expressions that involve causing harm to others, for example, are rightly recognized as falling outside of the First Amendment’s protection. When the artistic expression in question doesn’t involve such harm, however — for example, when actors are depicted being harmed through the use of effects and studio tricks, or the expression consists of drawing or sculpture or some similar form — the standard for regulating the expression is far higher. Even if an artistic expression seems revolting, as long as it’s not found to be obscene or otherwise outside the protection of the First Amendment, it can’t be banned or suppressed through government action.

And the obscenity standard set by the Supreme Court in Miller v. California is extremely difficult to meet. Attempts at getting around this test through other sorts of official action have usually failed, as in the case of Bery v. New York,3 in which the Second Circuit Court of Appeals struck down a government regulation requiring artists to be officially licensed to sell their work on public streets. Even if a regulation isn’t obviously intended to restrict freedom of expression, if it has that effect, it’s subject to the First Amendment and likely to be struck down in the same way.

However, let’s say that “official” government action isn’t being taken. What if, as in South Australia, some legislator stands up and simply talks about how bad some work of fiction is, how it’s degrading the morals of the people by its very existence, and how for those reasons Amazon should stop selling it? What if people petition Amazon on that basis and the company gives into public pressure and removes said work? In other words: can a public official legally use the power and influence of their office to skirt the First Amendment and have an artistic work suppressed without “making a law”?

Again, this is no hypothetical, because we’ve already seen it happen. I brought up several examples of such attempts at content-based regulation in another previous post. The most relevant here is the string of attacks on video games made by Congress in the early 90s, most famously against the Sega CD game Night Trap. Looking back, it seems strange that this FMV game was ever at the center of a controversy. Its contents are pretty tame, but some legislators spoke against it anyway, most notably former Senator Joe Lieberman, for containing gratuitous violence and lewdness. Following a congressional hearing in 1993 on the subject of video game violence (during which Lieberman admitted to never having actually played Night Trap) the game was pulled from distribution by major distributors and later pulled from the market altogether.

If it hadn’t been for that controversy, though, this game wouldn’t have gotten a rerelease/remaster on Steam, no way in hell.

The facts that the Sega CD was a marketing failure, and that by most accounts Night Trap was a lousy game, might have something to do with its pulling from distribution, but the influence of interest groups driven at least in part by public condemnation has to be considered. In my view, the use of a congressional hearing in this way taints the market and is an example of government overreach into the regulation of art. Lieberman’s view of Night Trap doesn’t seem very different from Bonaros’ view of No Game No Life and the rest of the manga on her list: both came to conclusions about the meanings and effects of the works seemingly without supporting evidence, and both ended up having an effect on the distribution of the work (in Bonaros’ case a much more direct and obvious effect, though.)

It seems this kind of government interference in art is hard to prevent even in the US, however; it’s happened so many times already (see also the Hays Code and the Parents Music Resource Center.) And there’s no reason to think it won’t happen again. At the moment, the US is going through a shitstorm for lack of a better term, or at least I can’t think of a better one to use, so people aren’t thinking too much about how music or video games are going to turn fans into degenerates or criminals. But that won’t last forever. One day when things are less chaotic, we’ll have another moral panic in which art is attacked as a way to avoid actually addressing societal problems. And since it doesn’t seem to be considered a violation of the First Amendment for politicians to use their influence to try to have works regulated or removed from sale, maybe the better question to ask at that point is: “Should they be allowed to do so?”

Let’s just do this again, why not.

Of course, my answer is “no.” The First Amendment’s guarantee of free expression loses some of its teeth when politicians are able to use the resources and influence of office to essentially get around it. Yet I don’t see a solution to that other than maintaining a culture of open and free expression. That’s a culture that has been under attack recently, especially with regard to anime, manga, and anime/manga-influenced games. We just have to remain vigilant as usual, calling out hypocrisy and scapegoating when we see it, and always in a civil but forceful manner.

I’ve lived in a country where the government had near-complete control over art and the press and where the dominant culture supported that control, and I can tell you it’s not fun. Many of the people who think they want that kind of power to be exerted against expression they don’t like here in the US might be in for an unpleasant surprise when they find works they like on the chopping block. But by then, if we ever get to the point where the First Amendment is so eroded, it will be too late to do anything about it.

So there’s my dire warning as usual. And as usual, I’m interested in other opinions. Do you have a different angle on these issues? Do you think Bonaros was right and justified in what she did? If you do, I don’t think we’ll find much common ground, but it’s still worth talking about. Maybe there were some important facts in that case that were glossed over or that I missed. Or maybe my own views on the issue as an American are considered weird in other countries. I know for a fact that’s the case, but that’s also part of why I came back here after all. 𒀭

1 Thankfully, Kinokuniya’s response to this request was: “In terms of our action globally, wherever our stores are situated we respect local law and culture, and make ordering decisions respectively and accordingly.” Which sounds like a diplomatic way of saying “mind your own damn business.”

2 395 US 444 (1969).

3 97 F.3d 689 (2d Cir. 1996), cert. denied, 117 S.Ct. 2408 (1997). There’s an interesting note about the case here (a note being an article written by a law student in an academic journal — I wrote a note myself, but it was a piece of shit and rightly didn’t get published.) A good read if you’re interested in the subject.

In defense of offensive content

Months ago, I wrote a post about obscenity law in the US and how anime, game, and similar material that some people would consider offensive or objectionable fit into that framework. However, there was a key question I left hanging back then that I’d like to address now: why protect art that many might find offensive? And in particular, why protect the creation and marketing of erotic and pornographic content?

I might also be writing this because Evenicle was one of the games I got during the lunar new year Steam sale

As I wrote before, this isn’t merely an academic question, because some people seem to believe they should be allowed to enforce their personal views about art by effectively regulating the expression of people they disagree with. You’d think that socially conservative fervor of the 80s and 90s had made a comeback for some of the puritanical screeds you’ll find on Twitter, Reddit, Facebook, and all the other big social media platforms. This attitude seems to be thriving now more than ever, in fact. See Sony’s changes to their content policies over the last year and self-censorship now on the part of even Japanese developers and publishers. I certainly can’t say how much, but at least some of this is likely a reaction to these agitators. Even honest, hardworking NSFW artists on Twitter have had to bear insults and attempts at shaming online, and for what? For exercising their rights to free expression. I know I’m a complete nobody who should probably be saying these ideas while standing on top of an actual soapbox in a public park, but I’ll be goddamned if I’m going to stop talking about these issues while things remain as they are. Hence this post, in which I’ll probably once again be preaching to the choir. But I welcome anyone who disagrees with me to read through my arguments and post a comment challenging them.

As before, I’ll be looking at this question partly from the legal perspective, with all the same disclaimers contained in my last post on the subject: none of this constitutes legal advice, it’s all probably nonsense, etc. etc. If you haven’t read that post, I’d recommend it anyway — you don’t have to read that one to understand this one, but it does provide some background to what I’m writing about here. Again, I’ll be addressing the situation here in the United States because that’s where I live and hold my license, though I do think a lot of the following arguments apply universally. And finally, if you’re tired of reading my broken record bullshit ranting and raving about art and censorship, you should probably skip this post. Drop in some other time.

First of all, what constitutes offensive art? There are probably as least as many answers to this question as there are people on Earth, so I don’t want to say I have an exact definition of the term. And I can’t refer back to the Supreme Court’s Miller v. California test here, because while it uses the term “patently offensive” in its second prong, it doesn’t define it other than to say that something patently offensive might be considered obscene. Moreover, different works of art offend different sets of people, and they offend for different reasons.

Yes, the First Amendment generally protects art from government prohibition, even if the author’s intent is mainly to offend. However, there are plenty out there who want to regulate art on the basis of its content, whether they perceive it to be too violent, or too sexual, or expressing an unacceptable political or social opinion. While these people aren’t anywhere near a majority of the consumer base, they’re fanatical and vocal enough to have their views taken into account by developers and publishers who will sometimes practice self-censorship simply to try to avoid a controversy.

I still don’t know if that’s why Nintendo censored Tharja’s butt in the Fire Emblem: Awakening DLC. I guess a tame bikini shot was just too much for American 3DS owners to handle.

I suppose it’s very obvious by now how I feel about these self-appointed guardians of purity and their efforts to strictly define the boundaries of what’s acceptable in art. I believe that people should have the right to enjoy any kind of art they like as long as that art doesn’t involve causing harm to others.1 My belief in protecting the integrity (and even the sanctity if you want to get really lofty about it) of art and its free enjoyment has a simple basis: that none of us chose to be born on Earth, into whatever society we happen to live in, so why shouldn’t we be able to escape from our daily lives however we wish? It doesn’t seem right that anyone should be prevented from getting their escapism in whatever way works best for them, and I’ll defend this position until I’m cold and dead in the ground.

Okay, so maybe I’m getting a little dramatic. But I feel just that strongly that people should be able to create and enjoy art freely. To that end, I’ve made a very incomplete roadmap of arguments to defend that position. I also have to admit that I feel this strongly in part because the above-mentioned fanatics like to go after some of the developers I like for their inclusion of erotic or even just plain pornographic content into their games. I’m not talking about criticism here, to be clear: I have no problem with someone saying they think a game or anime series I like is lousy for reasons I disagree with. Reasonable people can and do disagree about the quality of art — that in itself is completely normal. No, my arguments are directed against those who pressure developers and publishers to self-censor and who support restricting the sales of these kinds of works, banning them from online platforms, or taking similar action.

These are also purposely written as defenses, not as attacks. I’m not really interested in attacking anyone else’s personal views, just as long as said views aren’t put into practice with the effect of restricting the legitimate freedoms enjoyed by all the rest of us. Again, if you disagree with anything I’ve written below, please feel free to post a comment. Same if you’ve found a hole in any of my counterarguments.

So let’s begin. I’ll throw out some of the most common attacks I’ve heard along with my responses to them.

The distribution of socially harmful works should be restricted for the public good.

This is probably the most common argument I’ve seen in favor of censorship or heavy regulation, and probably because it’s one of the more convincing arguments its proponents have. While I don’t see much of a problem with pornography in itself, it’s true that its excessive use can hurt a relationship if it’s diverting attention from one or both of the partners. The same might even go for milder forms of erotic art, though it seems a lot less likely to be the case the tamer the content gets.

However, this is not a valid argument to restrict such content, much less to ban it from certain platforms. There are plenty of perfectly legal habits and practices that do more demonstrable harm to the people involved in them. Gambling, drinking, and tobacco use each arguably take a far greater toll on mental and physical health, relationships, and the public good as a result. Yet they’re not banned, and nobody outside of a few on the political fringes seriously suggest they should be. They’re regulated to some extent, but beyond that people are free to enjoy such potentially destructive habits. So unless the person making this argument is also advocating for the banning of all potentially socially harmful vices, it comes off as disingenuous. Even if some people may find a way to use such material irresponsibly, it doesn’t follow that it should be banned or strictly regulated.2

Not unless something like this ends up happening, and even then I’m probably okay with it.

That’s not even mentioning the fact that some works containing erotic content deliver what most people would consider positive social messages. Interspecies Reviewers, for example, has stirred up controversy for its sexual content, but from what I’ve seen of it, the manga and anime both express ideas of acceptance and diversity in a natural, non-stilted way. The content is certainly sexual, but the message is a good one. The same is true of many other works that take hits for being “fanservice garbage” or “basically porn” without regard for their context. In fact, a lot of the proponents of censorship don’t seem very interested in considering context. But context is everything. It’s what gives content its meaning. How can it be ignored if the argument is based on the supposed harm an artistic work might do to society? It’s also worth mentioning that there’s a difference between erotic and pornographic material, and also between non-sexual nudity and sexual content — differences that rely upon context. Context that, again, all too often goes ignored.

But nobody’s talking about a government ban.  Calls for the artists and the game industry to self-regulate have nothing to do with First Amendment rights.

It’s true that this isn’t a First Amendment issue, at least in the way these arguments are normally made. Groups that pressure artists to self-censor can claim that much. However, self-censorship can create the same kind of chilled environment for art that government censorship can, to the point that there may be no real difference between the two.

This isn’t just a hypothetical situation. It’s occurred throughout our modern history, both before and after the landmark Miller case. Looking back to the 1950s, we can find the Comics Code Authority, a private organization created by the comic book industry to regulate its own product. See also the Hays Code, which from the 1930s to the 1960s strictly regulated content in American films that the MPAA perceived as carrying immoral messages. And as recently as the 1980s, the Parents Music Resource Center, headed up by the wives of several prominent DC politicians, pushed for the heavy regulation of rock, rap, and pop albums for their perceived violent and sexual content. Senate hearings took place in which musicians as varied as Frank Zappa and John Denver warned about the dangers of censorship of music and of art in general. These proceedings resulted in a compromise, the infamous Parental Advisory sticker, which ended up becoming a kind of badge of honor for musicians whose albums received it — presumably not the effect the PMRC had intended.

This label should have just said “BUY ME TO LISTEN TO SWEARING AND WORDS ABOUT SEX”

This is the pattern of censorship of art in America: not direct government prohibition, which would in almost every case violate the First Amendment, but rather interest groups urging politicians to “encourage” industry associations to regulate themselves (fill in the blank implied by “encourage” however you like, but money is certainly involved, at least indirectly.) Sure, that doesn’t create a First Amendment issue, but the end result is nearly identical. So why should things proceed any differently now with video games? Starting in the 1990s, interest groups of various stripes have pushed for the regulation of games. This again resulted in a compromise with the creation of the ESRB and its rating system. Which I think is a perfectly reasonable, sensible approach to the issue. Mark games with content that might be objectionable on the box and let the consumer decide what to play on that basis. Or let parents decide what games are suitable for their kids to play. The creation of this framework should have ended the controversy about objectionable video and PC game content, but naturally it hasn’t, because games make for a convenient scapegoat when bad things happen. Easier to blame this weird new popular entertainment medium than to admit that there are underlying problems in society that need fixing and trying to actually fix them.

I suppose all this boils down to the following: while it isn’t, strictly speaking, a First Amendment issue, it doesn’t really matter if the end result is effectively the same as placing a direct ban on or restriction of erotic or otherwise off-color content. That’s assuming that the various interest groups in question don’t try to have such material banned outright, which is not something we can take as a given. As I wrote in my first post on the subject, there’s no reason to believe socially conservative groups that want to tear down the wall of separation between church and state would have any love for the free speech clause of the First Amendment. And I highly doubt the group of fanatics attacking artistic integrity from the political left would care either. Extremists and fanatics in general seem to think in the same way, even if their end goals are diametrically opposed. As far as they’re concerned, freedom of expression is a right that belongs to their camp and a privilege that may or may not be extended to others depending upon what they want to express.

However, that wasn’t exactly what our founders had in mind when they signed off on the Bill of Rights. It certainly doesn’t fit with the current understanding of the First Amendment, at least not since the old English legal precedent Regina v. Hicklin was overturned by the Supreme Court back in 1957.3 The Hicklin standard that governed until the mid-20th century defined obscene and therefore bannable art by testing “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of [the] sort may fall.” Though it’s usually not stated outright, this seems to be the standard that some of those on the extreme but very vocal fringes want to return to. The trouble with Hicklin, aside from being far too broadly worded, is that it requires a moral arbiter to decide what counts as an immoral influence. I know many of our friends on the far right and left would be happy to take that role, but good luck finding any consensus on the matter. This is the sort of thing that might work in a very small community where everyone goes to the same church, but the point is the standard wouldn’t extend beyond the bounds of that community. The alternative, again, is to impose the values of one of the lunatic fringe upon the entire population.

If there’s one thing the members of ResetEra and Focus on the Family can agree on, it’s that short shorts and thick thighs in video games are a terrible and corrupting influence on their players

So you’re that willing to defend your anime boobs and all that stupid nonsense? There are far greater problems to deal with than this, so you should just drop the issue.

I certainly agree that the human race faces greater problems than an outfit in a game being censored when it crosses the Pacific. I don’t need to look beyond the borders of my own country to see that. Our infrastructure is crumbling, our access to health care is still inadequate, many of our public schools lack funding, and our political system is currently being put through a stress test that it might not pass.

However, this argument is still worthless. Because we aren’t the ones creating the controversy: it’s rather those self-appointed guardians of purity on Twitter, Reddit, and elsewhere calling for developers and creators to practice self-censorship and attempting to use public shaming tactics to get their way. This is an attempted intrusion upon what I see as the artist’s right to create and the consumer’s right to enjoy art. If they want to blame anyone for manufacturing a controversy that might distract from more important issues, they should blame themselves.

You should get a life/get out of your parents’ basement/etc.

I only include these lines because they and others like them are thrown around so often in arguments about erotic and pornographic content in anime and games as if they had any bearing at all. In politics, irrelevant personal insults thrown around wildly can sometimes lead you to victory (just look at our current chief executive for proof of that.) However, when we’re trying to get to the truth of a matter, they’re merely a distraction. They’re also effectively an admission that your opponent in the argument has nothing left, so you may as well quit the conversation at that point.

Even supposing that people living in their parents’ basements who don’t get out much automatically lose the argument (which makes no sense whatsoever) it’s worth mentioning that fans of anime, manga, and games that may sometimes include some spicy content are all types of people living in all types of situations. But no, please keep ignoring that fact. Just keep throwing those bullshit insults around. We’re all antisocial unskilled basement-dwelling man-children. Oh yeah, and we’re all members of the alt-right too. Every one of us!

Just let me brush tails in peace. That’s all I want, is that so much to fucking ask

But how am I supposed to take you seriously when you’re placing a screenshot from a porn game in your serious post about law and art?

Okay, maybe you have a point, hypothetical opponent.

Then again, this is part of the point I’m trying to make. I will admit that certain expressions may be so extreme that the risk they pose to society outweighs the value of allowing them to be expressed. As an example, let’s say a group of people wants to stage public orgies, right out in the open. You could make a decent argument that this counts as an artistic expression depending upon how it’s staged, but aside from the fact that such an expression would violate existing public decency laws, I don’t believe it’s right to subject the general public to such an extreme display. However, many of the expressions people take issue with are nowhere near that extreme hypothetical. If your plan is to banish all depictions of nudity from society, you’d better start going around all the art galleries in the country loaded up with cans of spray paint. And in any case, to demand the regulation of what a person is allowed to enjoy in the privacy of his or her own home, no matter whether it counts as pornographic — that’s a different matter entirely.

Anyway, what do you think, reader? Am I insane? That’s entirely possible. I’m just tired of the unbearable smugness of these knights of purity, those guardians of propriety who think they can just enforce their views without any meaningful opposition. As long as people are too squeamish to talk about erotic and pornographic content, the pro-censorship and pro-restriction camp will have the advantage, and they will use it. So let’s not be shy about the matter. Our arguments can and should always be well-reasoned and civil, but we shouldn’t feel compelled to blunt them just because we think we’re on the less socially acceptable side. If I even possessed a few remaining fucks about what society thought of me anyway, being a lawyer for the last few years has taken them from me.

And now that I’ve given my big Braveheart speech, I’m done. I know there are plenty of people out there saying the same sorts of things I’ve written here, and many more thinking them, so it’s not exactly like we’re a lonely bunch. It can be easy to forget that sometimes, though. I also wanted to expand upon what I wrote in that first post and fill out the “why” part of it that I felt was lacking there. I hope I was able to do that without rambling too much. Next time, I’ll probably be both calmer and more coherent. Until then. 𒀭

 

1 I may as well throw intentional harm towards animals in this category to expand it to all sentient beings — I’m absolutely not a vegetarian, but I also don’t like the idea of harming animals for mere entertainment. It’s not an especially brave stance I’m taking here, I know.

2 This is the same argument proponents of cannabis legalization like to use, and I agree with it in that context too. I just don’t talk about it here because it’s not relevant to the subject matter of the site. Neither is politics in general, except when it intersects with art as it does in this case.

3 If you’re wondering why US courts were applying UK law in this case, it’s because US law was originally based on the old English common law system, and so the courts and even Congress would sometimes use an English precedent to base their rulings and bills upon when they couldn’t find an American one. Many of our own common law standards can still be traced back to the post-Norman conquest English legal framework, though you’ll hardly ever find anyone using an English or UK precedent anymore in practice. It’s also why we have so many old Norman French terms in legal jargon along with all the Latin. And no, we’re not letting go of any of it. It might be the 21st century now, but in some ways our profession is still stuck in the 13th.

On anime, games, and obscenity

Listen, sorry.  I had planned to edit and post my first deep reads piece today, but I’m pushing that back a bit because I’ve been reading a lot about proposed “anime bans”, essentially restrictions of work based mostly on their sexual content, whether the sexual nature of that content is actual or perceived.  All this reading put me into lawyer mode, and now I can’t bring myself to write about anything else before I’ve addressed these controversies to my satisfaction and hopefully to the readers’ as well.  Because while there is truth in a lot of the stories going around, some of them may be misleading, causing unnecessary misunderstanding and anxiety.  I’m not the top legal scholar in all the land, not even close, but I thought I’d take the opportunity to clear up a few basic questions about the American legal concept of obscenity as it applies to the shows we watch and the games we play.  (As much as I’d like to, I can’t address questions about the legal codes or traditions of Japan or any other state because I don’t know them nearly well enough.)

Fair warning: while nothing on this site falls into the 18+ category, this post does obviously deal with adult content.  So if that’s not your thing, you might want to skip it and check out the next post I put out that probably won’t have to do with anime titties, etc. if my schedule remains as it is now.  Also, while I am an attorney, none of what’s in this post (or on this site in general) is intended to be legal advice or to create an attorney-client relationship with anyone at all.  Finally, most of the legal analysis here is pretty speculative (i.e. I had to pull most of it out of my ass because a lot of it involves issues that haven’t yet been resolved by the courts) so you can take what I write with however much salt you like.  Sorry for the long disclaimer, but I have to put it there.  Now on to the real fun.

supreme court bldg

This is a serious post about law, but there will probably be a few anime titties as well, all included within the appropriate context of course.

With the 2020 Tokyo Olympics coming up, all the normal, well-adjusted people in my country and other parts of the West have started paying more attention to Japan.  And they’ve seemingly just learned something the otaku/weeb set have known for decades: that Japan produces ten thousand metric tons of drawn pornography per year in the form of manga and doujins that are sold online and at Comiket, and that even some of their anime and video games contain lewd or borderline lewd content.

Apparently some of these people have a problem with this.  Every time a game is slated to be ported to the West and it might contain questionable content, the battles begin on Twitter and Reddit and everywhere else over whether they should be ported over intact or censored.  There’s even been talk about the United Nations attempting to restrict content in anime and related media through Article 2(c) of its Optional Protocol to the Convention of the Rights of the Child.  While the article seems to be well-meaning — it’s prohibiting the sort of illicit, immoral pornography that nearly everyone already agrees should be prohibited — it’s extremely broad in its language.  And if read broadly enough, it would also place some anime and game content into a legal gray area at best.  The Optional Protocol doesn’t single out anime or anime-styled games, but the connection is easy to make: both feature a lot of young-looking female characters, not to mention the 800 year-old fox spirit goddesses who sure as hell don’t look 800 years old.  Thousands upon thousands of people read these posts and articles and rushed to buy, download, and torrent Fate/kaleid liner Prisma Illya and The Helpful Fox Senko-san before the all-powerful UN forces in their black helicopters destroyed every last copy.

By order of the United Nations, all cute magical girl gifs will be hereby confiscated

These stories also mentioned that the United States, Japan, and Austria, while generally supportive of the protocol’s goals, refused to sign in part because they felt Article 2(c) was overbroad and would unduly restrict freedom of speech.  Not that it really mattered all that much — even if the US, Japan, and Austria had been pressured to sign this Optional Protocol, none of them would have been bound to actually do anything to follow up on their commitments.  Protocols of this type are less legally binding than an agreement between two drunk guys scrawled on a bar napkin.  And then the napkin got used as a coaster for a pint of beer, and the ring it created made parts of the agreement completely illegible.  That document would literally have more binding legal power than a protocol to a UN convention.

Still, it’s worth considering whether and how your favorite lewd anime or game series could one day be legally banned from streaming services and online stores.  As everyone who’s had an internet argument about free speech already knows, speech is generally protected from government prohibition or interference by the First Amendment to the US Constitution.  However, not all speech is protected.  Making a credible threat of bodily harm is an exercise of speech, for instance, but it falls into one of the court-created exceptions to constitutional protection of speech.  Another exception, the one we’re concerned with in this case, is obscenity.

The legal concept of obscenity has been around for a long time and typically applies to images, writings, and other works that are generally considered lewd, disgusting, or distasteful.  For the purpose of maintaining public morality, works that are deemed obscene also fall outside First Amendment protection and can be prohibited by law.  However, the definition of obscenity in the US has narrowed over time to the point that it now only applies to a few very clearly harmful types of material.  For an anime series or game to be found obscene, therefore, it would have to be pretty god damn immoral and probably demonstrably harmful somehow, or at least a court would have to think so.

Good luck explaining the concept of Nekopara to the court

But how do we determine what’s obscene and what isn’t?  Thankfully, the Supreme Court in the 1973 case Miller v. California provided us with an extremely problematic and vague legal test to find and separate out the obscene works.  Here’s the infamous three-pronged Miller test as set out by Chief Justice Warren Burger:

1) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (meaning entirely sexual) interest;

2) whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and

3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

We don’t even have to read past that first prong to realize the Miller test doesn’t work anymore.  The idea behind it made some sense in 1973 — different places in the US have different standards of what constitutes offensively sexual material.  So, for example, the very same art installation displayed in Greenwich Village, NYC and then in Mobile, Alabama might shift from being not obscene to being obscene because the standards and norms in the locality surrounding that art have changed.  Today, however, the internet has turned the country, and to some extent the entire world, into a single “locality” in the sense that any content, no matter where it was created, can be accessed anywhere.  For this reason, the courts must now effectively use a national rather than a local standard in some contexts, even though the majority in Miller explicitly rejected the use of a national standard for obscenity.

This works in the fans’ favor, because a national standard is necessarily going to be slacker than a local standard for what’s deemed offensive.  And while that second prong is a bit vague (what exactly does “sexual content” entail?  How broadly should that be read if the state law defining it is vague?), the third prong of the test is extremely difficult to clear: almost every work created has “serious literary, artistic, political, or scientific value” of some kind.  Using the current standard, therefore, almost all anime and game content should pass the Miller test, at the very least on the basis that it contains serious artistic value.

Admittedly, there is a problem for the fans hidden in the language of the test.  Notice who’s applying these community standards: “the average person.”  Who the hell is that?  What’s an average person?  The legal answer is that it’s a kind of meld of a bunch of people picked off the street at random. Granted, that is a bullshit legal fiction made up for the sake of convenience. However, if an obscenity case ends up going to trial, guess who determines what that “average person” thinks? The jury, which is quite literally a bunch of people picked off the street at random.  And that’s at least a little scary, because you never really know what you’ll get with a jury.  On the other hand, the Supreme Court later found that the third prong requires a higher standard of review than that, which means greater protection for the speech in question.  Thank God for that third prong.

Some people think Kill la Kill is just fanservice, and some people think it’s a masterpiece. But what would the “average person” think?

I don’t mean to be an alarmist here. The free speech clause of the First Amendment hasn’t been eroded in the way certain other clauses to other amendments have. Freedom of speech is still one of the most closely guarded and strongest constitutional protections we have, and it’s backed up by a lot of precedent following Miller.  The fact that the internet is so damn full of weird pornography and screeds about how the government is run by evil lizard aliens is proof enough that we’re free to express ourselves in most any way we want.

However, that doesn’t mean the clause won’t be eroded in the future.  The religious right is still a politically powerful force in the United States, and they’ve shown their willingness to try to shut up speech that they consider lewd or blasphemous.  Remember the petition to Netflix to remove the “satanist” Amazon series Good Omens?  Not to mention the less stupid but still very stupid campaigns against the Harry Potter and Pokemon series in the late 90s.  Considering their great (and not entirely unsuccessful) efforts to break down the wall of separation between church and state also contained in the First Amendment, there’s no reason to think they have any special respect for the free speech clause.  Parts of the leftist and progressive movements are also trying to shame writers, developers, artists, and publishers into “cleaning up” their work and altering it to suit their moral sensibilities.1  While these groups are not generally pushing for government censorship, they are trying to create a chilling effect on art, and it’s not a major leap from that to calling for the imposition of legal restrictions on content.

So it would be wrong to assume things will simply continue as they always have.  There’s a reason groups like the American Civil Liberties Union and the Comic Book Legal Defense Fund still exist — it’s important to remain vigilant in protecting our rights and to not take them for granted.   Also, always keep in mind that “_ should be banned because I think it’s gross” is not a legitimate argument in favor of banning or censoring something.  Some people seem to think it is for the frequency they use it, but it most certainly isn’t.  Prove the material you’re trying to have banned fails the Miller test and have it found obscene by a court.  Nobody is arguing that genuinely harmful material shouldn’t be found obscene if it deserves to be placed in that category.2  If you can’t manage to get that ruling, however, all we’re talking about is a difference in taste.  And as the ancient Romans said: “In matters of taste, there can be no dispute.”

And as Senran Kagura producer Kenichiro Takaki said: Tits are life, ass is hometown.

I guess my point is that your lewd anime girls probably aren’t going anywhere, at least if you live in the US, but also that we shouldn’t grow complacent.  I’m also assuming that Japan won’t pass any serious restrictions on its own content, based partly on their answer to the UN’s Optional Protocol and partly on the fact that lewd anime girls are probably one of their biggest exports, and why risk that for basically no benefit in return?  I could be wrong in this assumption, but again, I’ll leave that issue to those who actually know something about Japanese law and politics.

So that was my combination legal treatise/angry rant.  I hope it was entertaining and/or enlightening.  If you have a question, a differing opinion, or a burning desire to call me insane or an idiot for what I’ve written, please post a comment below and we can get a discussion going. 𒀭

 

1 Full disclosure, as usual: I’m pretty much on the left myself, which is why it breaks my heart when other progressives rail against the shows and games I like as harmful or regressive just because they don’t fit their own views of political and social orthodoxy.  I’ve gone on about this before, so I’ll spare the reader here.

2 Edit: I shouldn’t say nobody is arguing this, because there are people who argue that the concept of obscenity should be scrapped entirely, allowing for every kind of sexual expression aside from those harmful types that are already banned by law. In fact, I like that idea myself. However, in the current social climate, I don’t think it’s realistic to expect that we can do any better than the Miller approach to obscenity.

The Seasonal Anime Draft: Cop Craft, ep 4

Welcome back to the hard-boiled sci-fi cop drama Cop Craft.  If I had any doubts about this series up until now, this episode got rid of them.  The first three episodes were just fine (janky animation in ep 3 aside) but they feel like a mere prologue now, because this is where Cop Craft seems to really get going.

The climactic final fight with the bad guy that isn’t a final fight at all and ends around minute four of the episode

Summary: The battle on top of that skyscraper gets resolved when Kei and Tilarna manage to (literally) disarm the powerful mage Zelada, who leaps off of the roof to his supposed death, but we know how these things work out.  Meanwhile, it’s revealed in a flashback that Leahyah (the fairy trapped in the bomb) helped Tilarna out in the past and that they’re friends, and then Leahyah somehow saves both Kei and Tilarna by sacrificing herself in an extremely confusing scene.

I really like this shot. Would be more touching if we knew more than ten seconds of backstory about Leahyah and Tilarna’s friendship, though.

Leahyah is dead, our heroes are alive, and their mission is now over because it basically ended in failure.  The one-time partners say goodbye to each other at the San Teresa docks, and Tilarna sails back into the sunset.  Except not really.  After a montage of Kei putzing around town for a while, he returns home and finds Tilarna lounging on his sofa watching TV.  Turns out she decided to stay in San Teresa and has officially joined the police department as Kei’s full-time partner.  And also as his roommate, because she never settled her dispute with that hotel from episode 2.

I didn’t expect the creators to write something that bears a resemblance to a real employment contract, but they did. Not bad!

We then get another montage of Kei and Tilarna on the job doing cop stuff, and then they discover the stolen corpse of a Semanian woman that comes to life with evil magic at the end of the episode and attacks Kei’s ex Cecil in the morgue.  But since Cecil and Tilarna bonded earlier that day over how much of a stubborn heartless jerk Kei is, Tilarna is there to save her new friend from the zombie.  And there’s yet another cliffhanger ending.

Analysis: Cop Craft tricked me into thinking it was going to be a show all about the conflict presented in episode 1.  Instead, it’s apparently going to be a sort-of-episodic cop show with sci-fi and supernatural elements, which I am extremely okay with.  I can see some viewers being disappointed by this turn — after all, the whole illegal fairy trade and mind-control plot wasn’t all that fleshed out before it was resolved (?) and neither was Tilarna’s relationship with Leahyah, so ending it so abruptly is a bit weird.  To me, though, what we’re getting now is just as good, if not better, than what we started with.  Also, big bad guy Zelada is almost certainly still around.  You know the rule when it comes to villains like him: if you don’t see him actually die, he’s not dead.  Tilarna herself even doubts that he’s dead, so we should keep an eye out for him.

This is how Tilarna answers the suspect’s invocation of right to counsel.

I’m also in love with Tilarna.  She’s both cute and terrifying.  Her partnership with Kei seems to be working out pretty well too, especially since this episode clued us in to the fact that Kei has some kind of magical connection with his pistol, like Tilarna has with her sword.  Though Tilarna’s total disregard of the suspect’s constitutional rights might cause the pair some problems, especially with their new supervisor.  The lawyer side of me took over halfway through this episode to try to add up exactly how much trouble Tilarna should be in after beating the shit out of a suspect to get him to talk, and also after cutting another guy’s finger off during a police raid.  Also strikes me as weird that she’s just living with Kei now without them even having to talk about it.  Do detective partners also usually shack up together?

Tilarna gets pointers from Cecil about how to deal with Kei.

I also really like Cecil.  I have to admit that I’ve never been as friendly with an ex-girlfriend (or ex-wife?  I never had one of those, but again, not clear which one Cecil is) as Kei is with Cecil, so good on both of them.  I hope she survives next episode.  I need more banter between her and Tilarna.  That zombie can eat her shitty lazy assistant though.

So I’m very positive on Cop Craft right now.  Again, I can see how some viewers might be annoyed by the sharp turn the show seems to have taken, but I’m happy with what we’ve got so far.  The animation quality is back too, so that’s another plus.  I guess it was just on vacation for episode 3.  Hopefully that was just a hiccup.

Really, as long as we get more Tilarna getting pouty about not being appreciated for her brutal approach to justice, I’ll keep watching.

Once again, see you next episode, and stay safe as always.

On physical copies, bonuses, and Google’s Stadia

This was originally going to be a review of Stella Glow: Song Magic, a five-track album (really more like an EP, clocking in at 22 minutes) that came as a bonus with the initial release of Stella Glow, a tactical RPG for the 3DS developed by the now-defunct Imageepoch and published by Atlus.  Storywise, Stella Glow seems to be Imageepoch’s take on Ar tonelico, because it shares a few themes with Gust’s series (“witches” who can control the elements through singing, and naturally, the witches are cute girls instead of your typical Macbeth old lady witches, because of course they are.) [edit: as user Mamahama very kindly points out below, Stella Glow takes inspiration primarily from other games the developer made before the AT series started.  My most sincere thanks for the correction.]

Note to Hollywood: if you ever start putting witches in movies again, this is what they should look like.  I know you won’t listen, just throwing it out there.

The problem is that I don’t have a whole lot to say about Song Magic.  All five songs on the album are ballads with some nice orchestration, and that’s about all I’ve got, though I do like the closer Ice World a lot.  Nothing here approaches the best songs on the Ar tonelico II albums I reviewed a while back.  That’s not a criticism of this EP, however – both of those albums set an extremely high bar to clear, and even if Song Magic doesn’t quite clear it, it’s still enjoyable.

After not being able to think of anything else to write on this subject, I started thinking about the very idea of owning a physical copy of a game, as well as the bonuses that come with special editions and preorders.  And then Google came out with more news about Stadia, the soon to be released streaming game service that people have been both praising and cursing, and so my thoughts turned to that.  Google recently released some Q&A material that’s meant to answer everyone’s questions about access to and ownership of games bought through Stadia, stirring up even more talk about it before its release.  It makes sense that people would have concerns about ownership in this context.  Unlike the movies hosted by Netflix and other streaming film services, games are interactive, and the right to return to a game months later with an old save file is one that we’ve been able to take for granted for over thirty years now.

While Google says they recognize this right in their latest Q&A, the fact is that they, not the end user, hold the keys.  Just give it a few minor changes to the terms of service, and then a few more, and a few more still, and dedicated Stadia subscribers could find themselves in a situation they didn’t realize they were bargaining for when they signed up.  This is what we lawyers call a contract of adhesion: the kind that you agree to when you click through the typical ToS boilerplate legalese that you don’t bother reading, because the language is insanely dense and convoluted and who has the time?  There’s no room for negotiation; it’s a take-it-or-leave-it proposal, and it’s almost always enforceable in court save some really unconscionable term of the “you owe us your firstborn child” variety.  Naturally, Google’s lawyers know this, and they will make sure they cover their employer’s ass by giving it all the leeway it needs. And if that ass-covering is at the expense of the end user, so be it.

When Google changes the ToS and you can’t do anything about it

And what about those bonuses I mentioned?  You might be thinking that digital bonuses are just as good as physical ones.  After all, a publisher can easily package a digital copy of a game soundtrack or a digital artbook with their game.  They do it on Steam all the time.  I’ve bought those packages on occasion.  Still, nothing beats owning a physical CD, and the same goes doubly for an artbook, one you can hold in your hands and read even when the power goes out (by flashlight or candlelight in that case, but still.)  Also, while digital bonuses are great options for indie developers and small publishers who wouldn’t necessarily be able to send out physical bonuses to everyone, the big guys presumably don’t have that problem.

This is part of the reason that I don’t believe the Stadia will kill traditional console and/or PC gaming as some people have suggested.  Stadia is a nice concept for casual gamers, and I don’t think it’s presuming too much to say they’re a big part of its prospective audience.  Maybe some competitive gamers will also find something to like in Stadia.  However, there are three massive subsets of the gaming population that all the pundits and sensational clickbait hack content creators are ignoring as usual.  First are our friends in economically developing countries and countries with government-mandated telecom monopolies, many of whom have garbage internet connections and can’t obtain the bandwidth necessary to use Stadia.  Second are those who want to mainly play singleplayer games without being forced to connect to the god damn internet the entire time.  And third are those who want to own physical copies of their games and get physical bonuses with those games as often as possible.  For these groups, I don’t think Stadia holds much interest, if any.  I should know; I’m part of both the second and third, and I have relatives in the first who have to deal with their shitty governments’ attempts to stop them from using Skype.

I don’t hate Google for offering up this service, mainly because I don’t believe it will change the face of gaming as we know it.  If you drew a Venn diagram of potential Stadia subscribers combined with the above-mentioned groups and weirdos like me who cared about getting that Stella Glow: Song Magic CD along with that bonus pinup of Hilda, the Witch of Destruction, it would look like an 8.  And despite what the clickbait-writing hacks would have you believe, there are a lot of us out there.

Or maybe I’m just a dumbass who refuses to adapt to this glorious new world that Google is about to show us.  What do you think?

Is this how I came off the entire time? Be honest

Megami Tensei #1: You’re not the hero of this story

Sometimes I won’t write anything for a week or two, and then in a few hours a few thousand words will spill out of my brain. This was one of those days, and the result is the start of a series on prominent themes in the Megami Tensei series of games and how I think they relate to life in general. I know, it’s a huge surprise that I’m writing about Megami Tensei. I only bring the god damn series up every other post I make. Anyway, I hope this mind dump makes sense to at least one person. It contains a few very general spoilers for Persona 5 and a lot of very specific story and ending spoilers for the original Shin Megami Tensei: Strange Journey.

It’s almost a cliche to say that we all like to think of ourselves as the heroes of our own stories. I recently had to attend a few events at my state bar association, where you occasionally get to hear some puffed-up language about the nobility of the profession of law. Law is a serious and complex profession, no matter what field you’re working in, and we are subject to real ethical standards (a fact that’s shocking to a lot of non-lawyers.) Perhaps as a result of this, there’s a tendency, especially among law students who don’t know any better, to equate being a lawyer with something like being a knight. We do take an oath upon being sworn in, and some aspects of discovery and trial could be compared to the dance of a duel between two champions. Otherwise, the reality of the practice is quite a bit dirtier and more mundane than that. (At least practicing law doesn’t usually result in someone getting axed in the skull.  But I’m still never returning to the endless hell that is the world of litigation.)

This kind of romanticism affects many more areas of life, public and private, professional and personal. And, of course, we see it in video and PC games. Many of us, myself included, play games to escape from reality, so it’s only natural that we want to play the role of the hero. There’s a reason Joker from Persona 5 is such a popular character that he made it into Smash, and it’s not because of his amazing dialogue. His being a silent protagonist helps, in fact, because the silence makes it easier to pour own your personality into that empty vessel, a point that a lot of people who complain about the Persona games’ silent protagonists seem to either miss or ignore.

And who wouldn’t want to play one of the heroes in Persona 5? Joker and his Persona are references to the fictional suave gentleman thief Arsène Lupin, and his Phantom Thieves as a whole are a callback to probably fictional romantic bandits like Robin Hood and his merry men of Sherwood Forest, only in a modern urban setting. Yes, Akira in the real world got a raw deal as a wrongfully convicted felon undergoing probation, but Joker in the world of shadows is a dashing hero. That’s not to mention the fact that even in the real world, Akira can romance almost all of the women around him.* Persona 5 does try to address serious social problems like official abuse of power, but in the end I see it more as an escapist fantasy than a commentary on reality. Not that there’s anything wrong with that. God knows I need my escapist fantasy.

Yeah, this is 100% fantasy…

You can’t live in the escapist fantasy forever, though. Eventually, reality will catch up with you. There’s another game in the Megami Tensei series that emphasizes this point, and it’s the infamously difficult dungeon-crawler RPG Shin Megami Tensei: Strange Journey.**

In most of the endings of mainline Shin Megami Tensei games, the silent protagonist is not really the hero of his own story. He typically ends up assisting the head of one of the extremist factions build its own paradise based either upon the principles of the Law alignment or the Chaos alignment. The word paradise should really be in quotes, however. A Law ending usually leads to the direct domination of human society by God, complete with a nice “cleansing” to get rid of the unworthy, which is most of us, while a Chaos ending usually leads to the destruction of human society by a horde of demons and the violent murder of the weak, which once again happens to be most of us. The same is true of Strange Journey, in which you play another silent protagonist the fans have dubbed “Space Marine”, a member of an international strike/research force sent into a growing mass of dark energy covering most of Antarctica. Turns out said mass is swarming with demons (what a surprise!) which has gotten so bad that Mastema, a mysterious black-winged angel, is also there fighting the demons under the direction of God himself (or so he claims, anyway.)

Never trust an angel in an SMT game.

Most of these mainline SMT games also have characters who represent the Chaos alignment and the belief in absolute liberty, following the lead of Lucifer, and a character who represents the Law alignment and submits body and soul to whatever avatar God happens to be using at the moment (often, but not always, the Old Testament YHVH, complete with his jealousy and smiting and weird mood swings.) And behold, two of your fellow crew members, Jimenez and Zelenin, take these roles and undergo a demonic and an angelic transformation respectively (equally monstrous transformations in the context of the Megaten universe, because both end up completely losing their humanity as a result.) Out of the three available ending paths, two involve joining your considerable power with Jimenez or Zelenin and bringing about either a new Earth ruled over by massive demonic worms that have apparently devoured most of humanity or a new Earth in which part of humanity has technically survived, but in a brainwashed state in which all people everywhere are constantly singing in praise of the Lord forever while standing on top of giant gray windowless buildings.

Yeah, I don’t… I don’t know about this.

Watching these endings probably won’t make you feel like much of a hero for helping to bring them about.*** They might even make you angry. This is what I was fighting for? you might think to yourself. Generally speaking, the closest you can get to a “heroic” ending in a mainline SMT game is by taking the Neutral path, which rejects both God and Lucifer in favor of humanity’s control over its own destiny. Perhaps for this reason, both getting onto and completing the Neutral path is usually ridiculously difficult. Maybe that’s the price you have to pay for opposing the wills of gods and renegade angels.

It’s not too hard to find analogues to God and Lucifer in humanity itself, either. Replace all of Earth with a single country, God with an oppressive tyrant ruling over it and Lucifer with a violent revolutionary leader trying to oust him and you’ve got the basic plot of an SMT game, and one that occurs in the real world all the time. The only real difference between the two scenarios is that while the victorious revolutionary leader often transforms into the new oppressive tyrant, the Lucifer of Megami Tensei has no desire to rule over humanity because that would run against his belief in absolute freedom. But even in the Chaos ending, the soil is ripe for the growth of a new absolute ruler who can win power through strength and charisma, creating a constant cycle of lawful tyrants and chaotic revolutionaries that overthrow them. Even the Neutral ending always feels more like a temporary fix than a permanent one – the powers representing the extreme alignments might go away for a while, but they never truly die. God and Lucifer always return in some form to submit humanity to more suffering. Not exactly the fun “hero slays the dragon and saves the princess” kind of story, and certainly not satisfying if you’re looking for a happy ending.

You’d think if Lucifer took the trouble to genderbend that he’d also try to come up with a less lazy fake name than this.

Maybe that’s just the point – there are ups and downs in life, but there is no ultimate happy ending. There may not even be an ending at all. The Abrahamic tradition, the one I’m most familiar with by far, views time in a straight line starting with with creation and the Garden of Eden and ending with the apocalypse and Judgment Day. But in other traditions, time is viewed not as a line but as a circle. It’s not evident in Strange Journey, but other mainline SMT games adopt this cyclical view of time. It’s not that heroes can’t be born in that cycle – heroes simply can’t break the cycle. Balance between Law and Chaos is never achieved permanently, and the resultant suffering continues forever because of it.

My own country is going through a political upheaval right now. Our head of state and government is contained in one person, and that person is definitely incompetent and possibly traitorous. We Americans like to think we’ve somehow earned stability and prosperity, and even that God himself guarantees said stability and prosperity. When I was growing up in the 90s and early 2000s, “God bless America” was a mandatory line in every politician’s speech, whether Democrat or Republican, almost as if by repeating this line over and over we could keep God’s blessings forever.

You don’t hear that line so much anymore. My own millennial generation is less traditionally religious than past generations, but there might be more to it than changing demographics. I think there’s a sense now that we could lose everything we have, and perhaps that God, if he even exists, doesn’t care. Perhaps he doesn’t even care if all humanity burns itself out because of our inability to handle the technology we’re developing. If that’s our ultimate fate, there isn’t a hero who can permanently prevent it. That’s the message I take from Strange Journey. It’s a depressing message, but an honest one.

Or maybe I’m just a depressive pessimist.  Yeah, that’s probably it. 𒀭

 

* I guess this point isn’t applicable to gay men or straight women. I’m not sure how well lesbian players can put themselves in Akira’s place either, him being a man and all. People have suggested bringing the female MC option back to a Persona game after P3P’s FeMC, or the possibility of at least one homosexual relationship (which did exist in implied form in Persona 2: Innocent Sin, but nobody seems to remember that game exists.) However, that’s a subject for a different post (and for countless, endless forum/imageboard/Twitter fights.)

** I technically haven’t finished this game, but I’ve gotten all the way to the absolute final Neutral route boss.  Yes, I’m pretty lousy.  I swear to God (or YHVH or whoever) I’ll complete it one day, just out of spite.  I made it all the way through Horologium, for fuck’s sake.

*** Depending upon your religious upbringing and how well it stuck, the Law ending in Strange Journey might seem like a good one to you. I don’t think Atlus intended for it to seem like a good ending but rather to be a mirror image of the Chaos ending. But if you think you’d enjoy singing hymns on top of a giant building for all eternity, more power to you. Just don’t make me join in. Well, I’d certainly be one of the unclean humans who gets banished to the outer darkness anyway, so I guess it’s a moot point.