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|Title:||Promoting Asian American Representation Through Copyright: Moral Rights in The Last Airbender and Fair Use in Ms. Marvel|
|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.|
|Key Related Studies:|
|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:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:|
“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.