Miku-san wa ! Chi sei desu ne!?
Hatsune Miku: Anime meets Animation . . .
How could Miku-san throw a wrench into traditional ideas of freedom of expression and intellectual property?
This brings to mind the topic of fictional characters and copyright which has been an ever increasing problem since the early days of animation. Kembrew McLeod argues in his book Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity that much of the current regime of copyright law came from the draconian provisions of The Sonny Bono Copyright Term Extension Act of 1998. He notes that it is sarcastically referred to as The Mickey Mouse Protection Act – for “if not for the Bono Act, the first appearance of the rodent, would be in the public domain.”
The Bono Act sought to protect Disney Corp and others from losing their copyright protection for their iconic Disney fictional characters like Snow White and Mickey Mouse. But what are these characters? Who created them? Whose intellectual property are they?
Snow White can be traced to the Brother’s Grimm and their collections of fairy tales. The original collection was called Kinder und Hausmarchen in 1812. Where did they get them? They were mostly copied from the French authors Charle Perrualt’s collections of such stories as Le Petit Chaperon Rouge . . (translated as “Little Red Riding Hood.) It was included in his collection Les Comtes de ma Mere L’Oie (Tales of Mother Goose.)
But where did M. Perraualt get them from? French villagers? Other authors? Whose intellectual property are they?
A good case can be made that the original Mickey Mouse was cribbed (stolen) from the original Oswald the Lucky Rabbit stories and illustrations that Disney and illustrator Ub Iwerks drew while under contract to Universal Studios.
In case you can’t tell them apart, Mickey is on the right.
Disney “created” Mickey after his request for a raise in pay was denied by Universal Pictures.
There is a great deal of murkiness about the original copyright situation with Mickey the Mouse but it became a moot point when the cartoons came out and toymakers began creating Steamboat Willie characters (Mickey Mouse “starred” in the original Steamboat Willie cartoons) and selling them for profit. Disney, who had just recently stolen the character from Universal, immediately hired lawyers and aggressively litigated those toymakers who had stolen his “intellectual property” and were (gasp!) profiting from it.
Disney took a strong stance that not only were his rights being stolen in regards to copyright, but also in regards to trademark. He applied for and received trademark protection for the images and words (known in the trade as “word marks”) that were part of his “creation.”
This has proven to be a remarkably durable and effective form of copyright extension. Under trademark law, it only has to be proven that a customer might be confused as to “origin” of the product or artifact with the “word name” appearing on it somewhere, for there to solid grounds for monetary damage. If you use an image or a written phrase that might confuse a customer as to origin, you can easily be sued and find little harbor under the law for the crime of stealing someone else’s intellectual property.
A case in point, as I was typing this, my wife came in and saw the image of Mickey the Mouse pasted in my document and said “Oh my. . . Be careful with that, it’s Disney’s.”
So how does this relate to Miku-san? For one, she is a fictional character, and they can be copyrighted in the United States and elsewhere if a rather arcane process is carefully followed with the copyright office. I just did a search of the database and she is not yet registered with the United States Patent and Trademark Office. Whoever created Hatsune Miku could trademark her use in the United States, and seek damages if someone copied or displayed her without permission.
She already is featured in Toyota USA’s marketing campaign for their new Corolla, with the demographic being young people in California (apparently) as evidenced by this Toyota press release:
Toyota has announced that they will be holding an event called “Mikuscape” at the Royal/T cosplay cafe in Culver City, California on September 16th. This invite only event will have themed deserts and drinks and will focus on Hatsune Miku fan art and the collaboration between Hatsune Miku and the Toyota Corolla. There will also be a “live, performance art piece that melds Miku and the Corolla.” Invitations to the event will go out to 100 people, chosen at random from those who participate in Toyota Corolla’s Facebook Application. In addition, from September 15th to the 25th, the Royal/T’s pop-up store space will “be transformed into Hatsune Miku’s garage for her official vehicle, the Toyota Corolla.”
Now that Miku-san has crossed over from Japan to America, as a spokesperson for the new Toyota Corolla, she has crossed the divide from being merely an image to being a corporate property. It would be interesting to cut and paste one of her videos into a private Youtube page and find out the result. It is quite likely that this would alert her owners (whether actual human people, or some form of collaborative artificial intelligence) that their “property” has been stolen, and any Youtube posting with her would be quickly taken down. That is what happens if the voice or music from any other corporation is used “without permission” and I would imagine that would happen if her “image” or “voice” were used.
If someone were even more daring, they could try to use her image in a commercial ad campaign of some sort. Like when an Austrailian beer company had the audacity to use an image of Snow White in an advertisement for their beer. Not only was she used without permission, but she was used in parody, which leads to even more troubling questions. What if Hatsune was used in a way that was not flattering and even could be considered morally questionable? Having a rather lively imagination, I could imagine a number of scenarios that might disturb and anger her creators.
In closing, I think the holographic image of Hatsune Miku raises some interesting questions in regard to intellectual property. But the main question I would like to know is “who owns her?” Related to that is another question “Who created her?” Which leads to yet another, “But who is she actually based on? An earlier Anime character? Someone’s daughter, or sister? A children’s story heroine – (Sailor Moon?) Who really owns her? And where did she really come from? That’s what I’d like to know.