Kaiserflame

First and foremost, translating comics in and of itself is not illegal, as it is a derivative work -- akin to fan fiction. People can write fan fiction every day and every night without recourse from the publisher because they are creating their own version of the established world, relationships, characters, etc. from the original work. So, what are the legal issues with scanlations? When we use the original artwork. So, if you think about it for 30 seconds or more, you can see the justification for adding obtrusive watermarks to a scanlation. Also, when you apply watermarks to a scanlation that obstructs the images, it tends to encourage the electronic reader to go out and buy the published version when it is available to them so that they can enjoy the complete story just as the author and artist intended.

I don't have an opinion on watermarks (I mean, I do, but that's not the point of this post). I just need to correct you on the copyright thing.

What we do (scanlate) *IS* illegal. Full stop. End of story. This is important because to understand our role in society and how the law applies to us, you have to, well, understand the law. N.B.: I discuss American law because it is the most relevant, prevalent law and I know Fubuly is referencing American law. Other countries may very well have analogues to what I discuss.

Copyright is a bundle of rights which vests with authors and owners, of which the ability to make derivative works is one of them. Fan fiction is also a legal gray area. It is not legal. This is why you do NOT see fan fiction being sold. If it were, the true authors would have much more incentive to sue them. The authors just don't sue because it's not worth their time to sue some two-bit blog.

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.

17 USC § 101 ("Definitions").

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

17 USC § 103 ("Subject matter of copyright: Compilations and derivative works").

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

* * *

(2) to prepare derivative works based upon the copyrighted work;

17 USC § 106 ("Exclusive rights in copyrighted works") (emphasis added).

Scanlation will, at least under the current copyright regime, never be won under a legal argument. You will win 1 time out of 100--if you're lucky. So how do you justify scanlation?

It will be based on economic, and more importantly, moral arguments.

On economic grounds, scanlation does little or no harm to the publishers, and in some cases actually help the publishers. After all, hundreds--thousands--of comics are left untranslated; there is no reason to think that any particular comic will be picked up by an American publisher. Given these odds and circumstances, scanlation can be used as a signal that a comic will be well-received in the American market. Moreover, there is little reason to believe that comic sales will go up anyway, seeing that many people who read manga are either young (no money); would never pay for a comic, ever; or are outside of countries where the publishers distribute.

But more interestingly and convincingly, on moral grounds, the current copyright scheme is simply unjustified. Do you know how long it lasts? The life of the author plus seventy years! And more in some cases! What possible justification is there for copyright to last that long? Sure, the author needs money, and perhaps he wants to provide for his family after he dies. After all, it does seem unfair that if he publishes his memoirs at 70 and dies at 71, the copyright should just fall out into the public domain and his family gets nothing. But seventy years? That's three generations after the author died. That's insanity. (On this point, the rest of the world also has similar life plus seventy copyright periods, due to the Berne Convention which harmonizes some of the world's copyright laws.) These excessive copyright periods leads to perverse and crazy results, e.g., a book goes out of print and the company retains the copyright but refuses to print more because it is not profitable. This situation leads to the general public losing an artistic work for the copyright period (many decades) and possibly forever.

And so it is with Japanese manga publishers. We know for a fact that most mangas won't ever see an official release to America/English language. If scanlators don't translate it, it won't ever get translated, and the work will then be lost to the English speaking population. In a world where we value freedom of expression, freedom to practice religion, freedom of speech, it seems unjustifiable, antithetical, and criminal to allow this to happen.