Tanaka (2018)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Tanaka (2018)
Title: Promoting Asian American Representation Through Copyright: Moral Rights in The Last Airbender and Fair Use in Ms. Marvel
Author(s): Jon Tanaka
Year: 2018
Citation: Tanaka, J. (2018) Promoting Asian American Representation Through Copyright: Moral Rights in The Last Airbender and Fair Use in Ms. Marvel. 25 Asian American Law Journal, 88.
Link(s): Open Access
Key Related Studies:
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About the Data
Data Description: The study mainly consists o legal analysis of existing moral rights and fair use frameworks in USA copyright law. Two case studies are examined in light of the newly proposed framework to prevent “whitewashing” (Avatar: The Last Airbender and Ms. Marvel).
Data Type: Primary data
Secondary Data Sources:
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Data Analysis Methods:
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Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
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Abstract

“Part I of this Article describes the lack of Asian American representation in popular culture, the reasons for this lack of representation, and the harms it causes. Part II describes moral rights in copyright law and the interaction of moral rights and fair use in the U.S. copyright system. It then considers a copyright framework that would allow creators to protect against the whitewashing of their works through moral rights. Though the expansion of moral rights is unlikely and potentially detrimental, fair use, as it currently exists, can be used to protect works which reimagine the racial identity of a character. Finally, Part III evaluates two recent popular culture case studies under this framework: (1) the movie adaptation of Avatar: The Last Airbender, which cast white actors in the roles of Asian characters, and (2) the 2014 comic book series Ms. Marvel, which reimagined a white superhero as a Pakistani American girl.”

Main Results of the Study

Moral rights may be used as a tool to prevent “whitewashing” of characters (e.g. where a character originally written as an ethnic minority is then cast as a white actor in a subsequent adaptation). The change in a characters ethnicity may amount to a distortion or mutilation of an authors work, particularly in countries where racial characteristics may be particularly significant (e.g. USA). Nonetheless, the introduction of such a regime may set dangerous precedent enabling authors to object to derivative works which increase diversity (e.g. “racebending” - usually recasting an originally white character as an ethnic minority).

In the absence of any moral rights regime to prevent whitewashing, the fair use doctrine can be used as a means of encouraging diverse representations. Where originally white characters are recast as ethnic minorities, this could be interpreted as a form of criticism of the original work, or as a means of appealing to a sufficiently new audience.

The study finds that whitewashed adaptations such as Avatar: The Last Airbender could be challenged under either moral rights or fair use claims (as it could not be considered sufficiently transformative, and casting choices were made without any particular agenda). Conversely films such as Ms. Marvel, where recasting is made with more deliberate purposes in regards to commentary/criticism of the original, may benefit from a fair use exemption (to encourage thoughtful repurposing).

Policy Implications as Stated By Author

The author acknowledges that the expansion of existing moral rights regimes in the USA is unlikely due to the strong, historical emphasis of economics in copyright. Furthermore, such a regime may run counter to the purpose of preventing whitewashing (e.g. by an author asserting a moral rights claim where a character is adapted from being white into an ethnic minority), potentially reducing diversity. However, there is evidence of increasing fair use jurisprudence which supports the introduction of diversity in derivative works (e.g. appealing to a new audience, new racial identity of character is sufficiently transformative etc.). As such, courts should be encouraged to find fair use where racebending is approached in a “thoughtful, deliberate manner” and thereby promoting representative diversity.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets