9c. Fair Use and the Translation Stranglehold

So, all you dear readers are likely getting sick of this; I just want to inform you then that next week we will be stepping down from our advocacy soapbox and returning to our regularly scheduled programming, in which I’ll take a look at mecha through the lens of the work of Nagai Gō.  Until then!

Gotta Zolo like a Rolo, YOLO

Kuina and a young "Zolo" in One Piece vol. 1 p. 137

Kuina and a young “Zolo” in One Piece vol. 1 p. 137

I’d like to draw your attention back to an image I had used in another context, namely about boys/girls and the assumptions about/representations of in manga, and talk with y’all a little about Zolo.  Now, you have to bear in mind that my first encounter with One Piece was a non-licensed translation dub of the TV anime.  After that, I began to regularly follow the series while living in Japan, so I mostly read it in the weekly Shōnen Jump‘s I would dig out of garbage cans and recycle piles on Tuesdays (for the trash cans) and Wednesdays (for the recycling piles).  At no point was it ever unclear to me that ゾロ was a take on the Johnston McCulley character Don Diego de la Vega, aka Zorro.  I was a huge fan of the 50s Zorro television show that ran on syndicated TV when I was growing up.  There was no mistaking: ゾロ was Zorro.

Fast forward a few years, and I am picking out the books for my “What is Manga?” class, for which I decide to use Oda’s One Piece as representative of the shōnen demographic.  A few days before class, I sat down to read the licensed translation, so as to refresh my memory, and I come across the follow anachronism: Zolo.  After a few minutes of obligatory “wat”s, I finally came around and tried to think why it was they would have done this.  When One Piece was scanlated, the name was at least translated as Zoro, so the similarity would be apparent.  Was this an attempt to bring back Rolo’s, which, while delicious, I don’t see flying off shelves nowadays awash in candies more flashy marketing than chocolate and caramel?  It was actually just before–or perhaps even in the midst of–the class in which we discussed One Piece that I realized there was a very simple reason why you would translate ゾロ as Zolo: licensing.  Zorro, like Mickey and Donald and Superman and Kitty-chan, is a diligently guarded media commodity, so, while one might conceivably be able to get away with aping Zorro in Japan, it would be much harder to get away with this in the US and the larger English language market, where Zorro media are still being produced to this day.

Roronoa "Zoro"

Roronoa “Zoro”

Here is an interesting quandary: if you buy into the logic of copyright and licensing, then the action taken by the “official” translation of One Piece is perfectly sensible.  After all, you don’t want to invite a lawsuit, if it can be easily avoided.  Yet, in avoiding the lawsuit, you obscure what, to my mind at least, is a clear reference to an icon of pop culture.  Perhaps I’m reading too much into this one example, but I hope you can see where I am going with this: the demands of respecting intellectual property (IP) rights often openly conflict with the demands of literary clarity and referentiality.  In this particular instance, Zoro/Zolo’s character design makes the reference rather clear, so it might not be such a big deal.  However, it does point to how paranoia over licensing rights and the legal hassles they can bring has a chilling effect on what one can do with a translated text, at least within the context of “licensed,” “official,” or “authentic” manga translations, whatever they might be.

As it turns out then, because scanlation exists within a somewhat tolerated legal limbo, it is actually more free to maintain intertextual connections that otherwise might be obscured through official translation outlets.

Fair Use is not Always Fair

As I have said in many different ways previously, copyright is by no means absolute, and there are explicit exceptions written into the 1976 Copyright Act meant to account for the perfectly legitimate ways in which an IP might be used/reproduced without permission, because of some greater value to society at large.  These exceptions are usually collectively referred to as “fair use” and, though typically discussed in the context of education or research, are not limited to academic domains.  One could argue that even the use of Zorro/Zoro in One Piece falls under fair use (especially since the name is more reference than ripoff), but fair use has to be asserted.  This is a very real problem, because as often as not persons and institutions simply don’t invoke fair use, because doing so has to happen in court, where legal costs may be prohibitively expensive.  Thus, media companies quite often bully individuals and smaller companies into abdicating fair use rights simply by virtue of being able to spend more money on lawyers and on legal means of protecting one’s IP.

Cerebus_275_03

Cerebus the aardvark, used without permission

This problem is especially pernicious in–though as the J.K. Rowling/Harry Potter lexicon case demonstrates, not limited to–visual media, where the legal cases involving images and questions of fair use have placed far more limited restrictions on what can be done with images as opposed to, say, text.  A scholar of a modern or contemporary poet would likely not even think of requesting permission to reprint an entire poem in a scholarly work (because, of, you know, fair use), whereas in, say, comics studies, it has become standard practice for publishers of comics scholarship to demand that authors get express written permission for each and every image to be reproduced, even though a work of scholarship is an obvious example of fair use.  This goes to such absurd extremes that, to use my own experience as example, when I went to publish an article on Dave Sim, the journal in question demanded I get written permission, even though it’s rather well known that Sim, rather unusually in the comics world, permits a wide variety of re-appropriations of his and Gerhard’s work, so much so that he bought out Gerhard’s stake in Cerebus, so that it would pass into the public domain upon his (i.e. Sim’s) death.  I knew how Sim would respond, but I still sent the fax, because, well, scholars need publications on their C.V.s, and when I got Sim’s snarky response back, I forwarded it to the publisher, who then interpreted it as permission, even though the text wasn’t quite worded that way.

Scholars regularly lament this state of affairs, yet there is little pushback, because, at the end of the day, if you don’t get the permissions, your book doesn’t get published, and if your book doesn’t get published, the likelihood of your getting tenure plummets.  The practice of publishers is likely never to change unless people at some point say “no,” at very real risk to themselves and their careers, “I have the right to do this, and I won’t acquiesce to your demands.”  Again, it’s a complex of competing concerns–publisher vs. scholar, scholar vs. denizen of academia–whose resolution has far more to do with who is in a position of relative power (for the most part, the copyright holder) and who is in a position of relative subjection (e.g. scholars, translators, adapters of various kinds), rather than the letter of the law, which seeks to balance these competing concerns instead of favoring one completely over the other.

Though there are almost no perks to being a non-academic scholar, I am glad that, because of my departure from the ivory tower, I personally don’t have to accept the logic that casts a chilling pall over what might very well be necessary and valuable contributions to our culture.  Not that anything I have to say is necessary or valuable…

Next week: giant robots are HILARIOUS, Nagai Gō, and mecha in manga

Stay Tuned!

Ba Zi

contact me: uahsenaa@gmail.com

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3 comments

  1. Failed Bai Sao Wannabe · · Reply

    Actually, I will miss the ‘departure’ into social commentary. I hope you can find it in your heart to dovetail back to it, again. After all, Go Nagai is a great excuse to bring up Devilman, which is a silly obvious excuse to talk about the human condition, and thence back to social commentary. But then I am also convinced you don’t do obvious… without good reason, anyway.

  2. […] you can imagine, given what I have said with regard to copyright on previous occasions, that last one struck me as, to be frank, entirely out of line.  It also makes no sense, if the […]

  3. […] 9C. FAIR USE AND THE TRANSLATION STRANGLEHOLD […]

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