You Pay What You Get For. Legal protections for creative professionals, it's a good thing.

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I wanted to write about the knee-jerk insanity over Halloween costumes and what seems to be some sort of absolutism by specific groups to try and use law enforcement to take clearly unconstitutional steps in maintaining what seems to be a secific agenda.  One wonders how it may not be long before that threat transitions to anime cosplay events at conventions and other places, (actually remember when I brought up legal threats from other sources regarding Cosplay?  Of course not, it was 9 years ago, and what were you doing 9 years ago? ...It never amounted to anything anyway). 

However, that subject will have to wait.  This entry will have to take a legal “Chun-Chun” and change the whole plot to another something law related.

Such an issue is the recent passing by the New York City Council of legislation specifically protecting freelance artists from wage theft by failure to pay.  It should be apparent by now that small creative businesses have been routinely getting stolen from by large business entities, who sign contracts, accept work, and then simply pay part or even none of the agreed upon price.  It's a major problem.  Even Middle America’s favorite presidential candidate has made that a common business practice.

 
If you’re a finance major, this actually makes good business sense.  You are a large corporation that retains a permanent legal counsel.  That permanent legal counsel is getting paid the same rate every 30 days no matter what, for their ability to fight off potential litigation.  So why not just count on a statistical analysis of how many small independent artists wouldn’t even have the resources to file the paperwork to even start legal action let alone be able to go through with it.  Then realize that a significant portion of your obligations (aka bills) will never have the resources to be able to collect them should you, as a company, simply choose to say “fuck you” and simply not pay.  You save a shit-ton of money that you keep for yourself and spend on hookers and blow.  What are they gonna do, sue you?  Ha!  Seriously, somewhere at Viacom there's a "Ford Pinto" type memo that actually outlines how this is good business and even has ratios for how much they can stiff different studios for what kind of work.

Hold on... I'm calculating exactly how much we can screw you, so I can add it to the spreadsheet. 
This is gonna get me at least 4 extra drink tickets at the Christmas Party.

So that’s been happening for the better part of two decades now, and like every loophole discovered by large money-grubbing companies run by baby boomer Gordon Gekko types, they’ve abused the shit out of it until it’s become painfully obvious that something needs to be done.  That something is a legislative bill, INT. 1017-C which has passed The New York City Council (unanimously) and awaits the signature of the current Mayor (and major walking disappointment) Bill de Blasio.  He will probably sign it, but let’s not forget that the importance of the matter of time he takes to sign it.  If it happens quickly, then we can assume that the text passed is what will become law.  But in a bit more time, the more of it that passes, it is more likely it is that the following is taking place;

NYC is home to… Viacom, NBC Universal, Marvel, DC Comics, ABC, FOX, Bad Boy Records, PBS, Pacifica Radio, Random House, Reuters, McGraw-Hill, Harper Collins, and a shitload of companies  you’ve never heard of but who all own their own skyscraper in Midtown somewhere.  Not to mention Ad agencies like Saatchi & Saatchi, and Blue Fountain Media.  All of these companies are going to figure out something pretty fast;  A veto is worthless.  If the thing passed unanimously, there’s no way a veto won’t end in an override, those companies can’t get enough City Council Members in their pockets fast enough to prevent that. (Seriously, they have entire floors full of lawyers who argue all day about exactly this kind of thing).  What these companies are going to do is ask for time, time enough for them to go over it so that they can do some housekeeping and then change their boilerplate to something that circumvents this law. And from our ShitStain of a mayor, they'll get it.

Forgetting the obvious fact that even these new penalties are nothing that these massive companies can't just ignore (seriously Viacom farts $1million a day in executive catering… like they’re gonna care about this stuff), it’s important to always keep in mind that this is a New York City law.  Nobody remembers, but I once wrote something regarding how the Tokyo Metropolitan Government has a huge sway on almost every Japanese area of business and politics because in terms of industry and head offices, all the eggs are in one basket over there, and the same is true for the majority of any Japanese market’s regular customers.  So as Tokyo goes, so goes the land of the rising sun.  NYC may be large and we may be so much better than the rest of the hyucklybuck red-state Walmart-shopping ‘Murika out there, but in terms of all the eggs in one basket we in NYC hardly are.  Most times this is a strength, but here is it is a glaring weakness. 

That weakness comes in the form of enforceability and boilerplate.  Everyone who has ever done work on spec knows that in your contract usually somewhere on page 6 there is going to be an article that reads like this:

The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of [pick a state]"

That’s called a Jurisdiction Clause or sometimes a Forum Selection Clause.  After reading this bill, I can’t see an explicit part that addressed this issue.  § 20-931 comes very very close, (read the thing if you want I’m not cutting and pasting that whole thing here), but it really seems to not cover the following situation:  A freelancer living in Queens gets contracted by a large media firm in Manhattan, and after all the details are hashed out they are ready to sign.  The big media firm asks the freelancer to actually come to their White Plains office to execute the contract because “oh, that’s just where the person who needs to sign it happens to be that day” but don’t worry, they’ll totally send a car for you or reimburse your traveling costs.  Well not what?  You have a contract drawn up and executed in White Plains, with a Jurisdiction Clause that almost certainly reads The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of The State of New York, The City of White Plains".   So yeah, now what?  Just because the freelancer is based in NYC can they use this legislation to enforce a judicial order of payment?  Yes, § 20-931 mentions that the "director" will decide the jurisdiction (meaning the state will decide the jurisdiction) but has no language to specifically supersede a jurisdiction clause. You KNOW the big company is going to fight the hell out of that jurisdictional argument and if they can’t shred it to pieces right there, they’ll just drag it out like they do with everything else.  What if they had actually had this contract executed in a Newark, or Hartford office, in an entirely different state?  It has yet to be seen if this law will force an osmotic movement of freelance hiring out of the New York Limits by large companies that have done this for so long it's not just standard practice for them.  No way to know until this is really put to the test.
 

Caption is redundant.

 Well, when De Blasio vetoes the thing (and he will for some bullshit), then it will come back in 2-18 weeks for him to sign.  Someone should check to see if  § 20-931 is still intact.  It actually doesn’t matter because the other “first thing” these massive media firms are going to do is start hiring freelancers that live in Nassau, Suffolk, Westchester Counties, and New Jersey.  Not like that’s gonna be hard to do. 

Not to worry, signing at the White Plains office is exactly the same as signing in Manhattan.
Would this face lie to you?

So why does this matter?  Well it fucking should.  Don’t you like animation, and manga, and games, and online content, and music?  Why should you be ok if the creative person who worked on it gets screwed just because some major media company feels like straight up not paying them?  These creatives are massive sources of fan generated content that keeps the fandom alive.  Artist Alley at Conventions, Youtubers, Podcasters, webcomic artists, and so many others make their living in these creative fields doing commercial work.  Being exposed to this literal injustice hurts these people who participate in the fandom, and Patreon is NOT going to cut it.  When an artist gets screwed out of $6,000, that’s 3 month’s rent, and if they can’t make it, the first thing that happens is we see the word “Hiatus” on the websites of their fan projects.   That’s why these protections are important to fandom across the board, and that’s why whoever you are and wherever you are, you can urge your government representatives (Local, State, and Federal) to follow this examples and make sure that a good fan artist or great animator is able to make it to that convention because they no longer have to worry about having to wait 6 months to get half of what they agreed on for work they have long since finished.  A printed letter and a stamp is literally the least you can do.  Yeah, I know snail mail is prehistoric... but so are our reps, and it's the only thing they understand.


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Tolkien-Temper-Tantrums, Katsucon Catastrophe, & Funimation vs The Congressman’s Daughter: 3 kinds of "Doing it Wrong"

The Streisand Effect is something that can rarely be used as an effective marketing tool. In the times it has had demonstrable positive effects in marketing, 90% of those instances have been due to retroactive strategy changes, where the instigating party simply comes to terms with the extra attention and does what it can to take advantage of the newfound publicity, rather than continue to fight a losing PR battle. Almost never, can a marketing strategist plan and then successfully implement a Streisand Effect from the ground up. Hence;


#1 Tolkien Temper Tantrum:
Recently, there’s been an anime related blip on the Streisand Effect radar in the form of a fan-produced button with the slogan “While you were reading Tolkien, I was watching Evangelion” that was taken off of Zazzle.com at the C&D behest of the Tolkien Estate. This non-infringing product had long since exhausted its life-cycle in terms of pop-culture buzzmetrics and relevancy in general. It was just another microscopic fleck of dead skin on the pile of old-meme that was the internet from 2009 that no one cared about. Suddenly, in steps the Tolkien Estate with a behavior which violates the unwritten social standards of internet pop-culture community, and boom; it’s viral in the blogosphere. The result being that now, someone like me, who never knew about this has; A) found about it, and B) based on the behavior of Tolkien Estate I am now very motivated to make something for myself with this slogan on it and proudly display it at the next convention I go to. I think you should too.

This is news via BoingBoing.

[Added Mar. 7 2011]
Since I wrote this a while back (these posts are usually written a number of days, sometimes weeks before they're posted using Bloggers ability to schedule auto-uploads), there has been a development in this issue. That development seems to be something along the lines of the Tolkien Estate coming out and stating that they have had no involvement in this situation, and leading to the conclusion that it was Zazzle.com which pulled these things of their own accord. Something later confirmed by Zazzle.com via BoingBoing...apparently. However, in Giro.org's post containing the original Zazzle.com emails, the words "We have been contacted by The JRR Tolkien Estate" clearly appear in their correspondence dated Feb. 23 from "Mike" at Zazzle.com. There are only 3 possibilities as things stand:

1) Zazzle is lying. They were never contacted by the Tolkien Estate, and took it down themselves because someone over there has just learned what copyright infringement is and is taking it too far (see Katsucon Catastrophe below).
2) Tolkien Estste is lying, and backing off real fast to avoid a wrath of the internet type incident, either asking or leaving Zazzle to take the PR hit, with the message that it's Zazzle's doing and not Tolkien Estate, and Zazzle is complying since they... who fucking knows.
3) Giro.org is lying and this has all been concocted as some insanely ballsy method of publicity in the hopes of... who fucking knows.
4) My own opinion/desire is a combo of 1 & 2, being that Zazzle.com knows exactly how this works, and was able to explain to the Tolkien Estate how they might just become the Cook's Source of 2011 in terms of internet wrath... and so they both are back-peddling the hell out of this.

Either which way, I'm done caring about it at this point, thought I still will be wearing a home-made version of this thing to the next con I go to.


#2 Katsucon Catastrophe:
Now, when it’s really “Fair Use” like the above, I am always supportive of this kind of thing and fostering all kinds of creativity. This support usually is something I often extend even when it’s technically over the line of the copyright issue. There are many examples where it’s more beneficial to allow the activity to continue rather than to force a confrontation. Case in point; the Katsucon Artist Alley disaster of 2011. Let’s get the technicalities straight; Most artist alley transactions where people buy things from the artists/vendors are in actual violation of copyright since the character rights are clearly being infringed upon. The fact that an artist drew/painted/sculpted an existing character or a combination of original character in an existing profile, by itself isn’t infringement... until that piece is sold for money. In that case the rights holder is entitled to a portion of that sale, and if there is no existing agreement in place, they can take legal action.

That doesn’t mean shutting down the artist alley is a good idea. Unless you’re selling a hundred pieces of Naruto fan art at $10 each, the small transactions of an artist alley are not something that licensees should think are worth the customer alienation that comes with wielding the bludgeon of "enforcement." But like a college undergrad who just learned something new, Katsucon blundered into this big time due to a lack of real-world knowledge. My own notion is that some staffer (who is probably a pre-law student somewhere), realizes that there’s a technical copyright violation going on, and institutes an over-kill policy, demonstrating a serious lack of knowledge of how this works. I could be wrong, but for some reason I don't think I am. Knowledge is information + experience. Guess which part of that was missing from the thought process of this Katsucon genius... Now because this mess’s Streisand Effect brings unnecessary scrutiny to artist alley activities at conventions in general, it can only lead to problems. Best case scenario is that this just goes away by the time convention season gets into full swing.

My Katsucon 1 (1995) con badge.
Katsucon, I love ya, and I was there in the beginning, but you better not fuck this up for everyone.

#3 The Funimation vs The Congressman's Daughter
Then there are the straight up a-holes who are so steeped in gamification behavior within the fan community, that they will actually hurt the anime business to get e-peen points. While the targets of the litigation aren't the worst offenders, Funimation suing the 1337 to set a proper example of “yes, this is stealing, and this is what happens when you do it” is not surprising, and is only unfortunate in that it takes capital away from Funimation's budget that could otherwise be used to get more anime out. Anime as a commercial product has been seriously hurt by attention whores who make terrible translations and post them online before legit streaming sources make them available merely a few hours later. These lawsuits will win (if legal procedure is done properly) because the law and politics are very friendly to copyright and the billions of dollars it pumps into the economy. Here's a bit on that:

The US Government is in love with Copyright. Some relevant background (Napster case study): In 2001, Napster tried the ridiculous failure that was the “Million Fan March” on Washington DC, as a part of their platform for a complete revision of copyright law, the end goal of which was to make p2p media sharing legal under fair use, and thus clearing the way for Napster to operate on a very large scale, immune from civil actions of music labels and artists. This event, combined with the activities of the Napster D.C. lobby team of Manus Cooney and Karen Robb, was called the “Congressman’s Daughter” strategy. It was the idea that if a member of congress just had their kid show them how Napster worked, they would have some kind of awakening and Congress would make sweeping changes to Intellectual Property laws. Napaster actually put off negotiating a deal with music labels in order to further this strategy, thinking it would work, and then they wouldn't have to deal with labels at all. But the problem is, Congress had just changed I.P. laws, and not in the way Napster wanted. This was the 1998 Mickey Mouse Protection Act, extending the period between creation and entry into the public domain to well over a century in most cases. The law was further cemented into an indelible presence in American jurisprudence with the later 2002 case of Eldred v. Ashcroft. Pile on top of that the DMCA getting through the Senate unanimously in1998, and U.S.A. participation in the GATT Treaty on copyright issues, and it should have been painfully obvious to anyone that this hoped-for outcome of Napster's wasn’t going to happen. The U.S. Government has consistently realized that patents and copyrights are among the top 5 contributors to the entire U.S. economy, with the biggest players in intellectual property issues being Pharmaceutical, Agri-business, and Software entitles, along with Entertainment Media. They all have DC lobbies too... really really big ones.

"Bubble? What do you mean Bubble? Nah, this is totally gonna last forever!"

So the F-1337 don’t have the law on their side, and can only hope public opinion becomes strong enough to serve as a motivation for Funimation to back off, or see if they can sidestep on a legal technicality. And for those of us in the business, it’s very painful to see idiot fans supporting thieving activities because of some perceived entitlement - the "right" to watch anime. It’s not really 100% their fault though, there just isn’t enough information getting through to people to dissuade them that; no, your American otaku demand for HD video perfectly translated commercial-free simulcast foreign TV programs at no cost to you is actually unreasonable believe it or not. The problem is, the way we live doesn’t make that easy to realize. For example; when Verizon was advertising high-speed internet access with the tag-line “download thousands of songs,” they were really hurting things. Downloading 1,000 songs from iTunes is kind of pricey, and Verizon knows that people aren't going to be paying for all those downloads, but they are going to perpetuate the entitlement anyway. The entitlement of “well I just bought a big computer and am paying for broadband, so that’s my investment, and that’s all I should have to be out of pocket” seems to be enough to justify not actually paying for the entertainment media they consume. Again, an internet entitlement notion that only is shown to be completely absurd when applied to a real-world example; “Well I got up out of the house and paid for my subway ride here to the movie theater, so that’s enough of a reason for me to get in without a ticket.” Yes, it’s just that stupid. And no court in the land is going to have sympathy for people who buck the system that greases the wheels of politics.

In this last case, the party who’s “doing it wrong” are the fansubbers, the torrent hosts, and the people defending what they do. When you dabble in piracy, there’s a risk that they’ll nail you. The internet-rage from the ignorant otaku masses is creating a pseudo Streisand Effect in the regular channels, which is just a reminder to the rest of you to play by the rules or risk being #1338.

OTAKON 2008, Artist's Alley, Commercialism, and Life after Weaboos:

Another Otakon has come and gone.

I’ve finally been able to reach a point where I believe I can give you an Otakon report that is only interesting because you, dear reader have already gourged on Otakon recaps to the point where you are looking for any last morsels of media to stuff in your face before the sugar rush wears off and you cant take another bite.

This year was markedly free of the type of licensing industry presence that had been seen at Otakons that had recently come before. This particular development was something that should be understood as inevitable regardless of the health of the industry. When one realizes that the presence of such corporate booths do nothing to recoup their high costs at a fan-event, as the dealers room of Otakon shall forever remain only a retail space and not a place to take major industrial steps forward. As happens at non-business conventions like Otakon and in the whole media industry itself, the major labels have passed on the burden of shouldering the costs of the home media market to the retailers because they have to. Even the big boys such as Funimation, and Bandai had retail partners there, handling product sales. The upshot of which, was that there were serious deals to be had, such as Funimation box sets for $30 (I picked up Tenchi and Shinchan), all of Cowboy Bebop for $40, and talking down the non-descript table people selling ADV titles to let the platinum Evangelion set go for $45 if you asked nicely.

I didn’t bother taking many photos. You wanna see photos? Go watch this.

Moving on to another phenomena of Otakon which is the Artist’s Alley; it is interesting to note that the dealers room has become slightly less of a hotbed of contention. The debate focuses around a point which seems to universally exist in the balance between the fandom and the people who create anime itself ...I mean make actual anime/manga for real, not you at home working on your flash for NG or you over there with the bloated deviant art account and drive full of crappy fanfics (that’s all of them). Billed as the “convention of the Otaku generation” sadly most of that actual generation no longer attends and the event has been overrun with “the weaboo generation.” If there is anything that is endemic of the latter, it is an unmistakable cone of ignorance they carry of how the world works, stemming from a terrible combination of youth and social maladjustment. Nowhere is the juxtaposition of these two groups more easily observed than in the Otakon Artist’s Alley. The weaboo misconception is that that this is going to be like comiket and the internet level of lax rules of intellectual property where it’s ok so long as a C&D doesn’t get sent apply, and there is plenty of modest profiting from sales of art made by people who are copying the work and designs of other people. The idiocy of the younger (and less talented) generation’s argument that their wholesale offerings of character goods which earn creators no royalties is ok to do at Otakon because it’s legal in Japan, can be summed up by this following example of “what’s legal in Japan”: In Japan I can bang a 16 year old schoolgirl and her twin sister in the family TV room while chowing down on dolphin meat and wiping my forehead with used panties from a vending machine, then spend the rest of the night at a cockfight drinking beer in public (also from a vending machine).

Now if you are one of the 3 people who read this blog and have never been to the Otakon Artist’s Alley, it is quite large and the space it occupies is bigger than most convention dealer’s rooms and in some cases bigger than entire conventions themselves. Their ability to compete with the dealer’s room is a genuine concern of actual retailers, who are held to higher standards when it comes to the legal status of what they sell to the public, and who pay a lot more for a table ta'boot. Vendors have a valid concern when it comes for arguing for fair play against a room full of other people selling character goods for a cheaper price at tables which are a fraction of the cost of dealer space. And herein doth approach the grey area of enormous magnitude, contained within the simple question “what is art” or in this case “what is fan-art, and can is it ok for it to be a commercial product?”

I always spend more in Artist’s Alley than the dealer’s room, but I spend it on original art, not works of commercial characters that the artist didn’t create on their own. To buy unlicensed character goods assumes that the industry and original artists are in such good economic shape, that this kind of sub-market can exist without hurting the whole system, which is simply not the case. Art is art, but just because you drew a great picture of a character you have nothing to do with (other than you like it) is not valid entitlement to sell that as a commercial product. The right to create is not the right to sell. It’s great to be a fan and want to own things of the characters you identify with (or think are hot) but to sell such items on any scale other than single commissions, is like a cosplayer asking for a dollar for every photo taken of them, and that dear readers is a dick move.

There are many who disagree with this and think that all should be fair game in this situation and if the artists want to sell home made unlicensed commercial products at the highest possible turnover then they should be allowed that because not only is that allowed in Japan, but as true fans, their love for the anime and the characters makes what they do more genuine. That is not true, since nothing says “love” like a royalty check, just ask an actual manga-ka, or seiyuu, or director, or producer, animator, studio, composer, HR director at an anime company, or a cashier at the Osaka Animate store.

And that’s how we solved the mystery of the butthurt weaboos.

Other things that happened at Otakon was that the Ninja Consultants had their wits about them enough to have the great idea of recording the mother of all anime podcast episodes in their convention hotel room at 1am Sat/Sun, with a rouges gallery of podcast people who’s names I can’t really remember completely, but it went something like 2 thirds of AWO, the big guy from Fast Karate, the guy who sounds like a chick from R5central, MT, some teenager, and I think I was there. There was also a guy outside who went to a wedding but then got hit for no reason and the police came. FYI when you listen to that please keep in mind that some tequila was involved. Pics or it didn’t happen? Here’s the string-bean saying something I am sure he thinks is important.

This year didn’t seem to have as much of a swell of energy to it. It didn’t seem to have the energy of growth to it, and that may be in no small part a result of the former major players in the game all falling out of the picture. Say what you will and my previous post not withstanding, ADV is probably outta here. I couldn’t believe what I was seeing but it actually seems that there were slightly less cosplayers as well.

In addition Otakon once again showed that it really is run by fans for fans, as the press office failed to deliver on just about everything we were after, and I became aware of this lack of competence quite a bit too late, so あ!PoN will not be having any episodes filmed at Otakon, even though we went down with a full set of gear. Fear not however, since we did have a long sit-down with director Satoshi Kon (preview here), and we’ll be talking to plenty of people at the (better run but more commercial) NYAF. Next year we’ll also be at the Tokyo Anime Fair so look forward to that also.

So is this going to be the very start of the sucking sound made the vacuum created by the rapid departure of the weaboo flood that will soon find something else to gravitate to now that the anime industry is going to have a hard time “giving the people what they want?” Honestly it is possible, but what is also (more) possible is the sustaining of at least a higher plateau, and as Katrina 2 gets ready to kick New Orleans in the still-sore nads, and we’re about a week from having Sarah Palin’s fake pregnancy explode all over CNN, one must continuously remind themselves that Executive management in just about any field has an unlimited potential to bumble their way into an unending forest of epic fail.

See you next Otakon.