A VR Anime City in Malaysia?
A vibrant and ambitious project in Kampar, aimed at boosting local tourism and celebrating pop culture has ignited a cheeky little copyright controversy.
Kampar MP, Chong Zhemin (DAP) and Keranji ADUN Angeline Koo (DAP) faced criticism for unveiling a massive mural without proper authorisation from the rights holder of Dragon Ball, featuring iconic characters like Goku, Vegeta, and Gohan, alongside their creator, the late Akira Toriyama.
A cool feature of the mural is its augmented reality (AR) feature, which brings Goku to life through one's phone camera.
Dragon Ball is just the beginning. The VR Anime City project plans to paint more murals featuring characters from other anime franchises all over Kampar.
Some argue that these murals may constitute copyright infringements, potentially tarnishing Malaysia's global image. But is this truly the case? Let's delve into the details together.
What is copyright?
Copyright is like a shield for original works, such as books, music, and art, protecting them from being copied without permission.
It serves to protect the economic and moral rights of the copyright owner, so that they can reap the rewards of their work and prevent someone else from using the work in a bad light.
What's unique about copyright is that it kicks in automatically. As soon as a work is created, it's protected by copyright, not just in Malaysia, but in 180 other countries around the world that are part of the Berne Convention.
This means that the Dragon Ball characters are protected by copyright equally in Japan, in Malaysia, and in most countries around the world.
If anyone, without permission, copies (i.e. reproduces, distributes, communicates to the public, or performs) a copyrighted work or a substantial part of it, they may be liable for copyright infringement under the Copyright Act 1987.
A classic example of copyright infringement would be the selling of pirated DVDs at the pasar malam. But the present case is kinda unique...
They are not profiting from it. Is it still wrong?
Although the Kampar mural is an unauthorised copy-paste of Dragon Ball, he is not doing it for personal economic gain like the pirated DVD sellers. So, is it still copyright infringement or is there an exception?
Fair Dealing
Section 13(2) of the Copyright Act 1987 creates an exception to copyright infringement if the reproduction is for education & research, private & domestic use, criticism, review, or reporting and other purposes that may fall under "fair dealing" (or "fair use" in the US).
Essentially, fair dealing is a question of how a fair-minded and honest person would have dealt with the work.
This exception operates within an open system, allowing courts to evaluate specific factors to determine whether a reproduction qualifies as "fair" and does not constitute infringement. These factors include:
The purpose and character of the dealing.
The nature of the copyrighted work (factual or creative).
The amount & substantiality of the copyrighted work used.
The effect on value of the copyrighted work.
Transformative Use
For the purposes of this case, we will focus on the first factor which is most critical. This factor is often referred to as "transformative use," a type of fair dealing that involves building upon a copyrighted work in a new manner or for a different purpose than the original. Transformative use is crucial because it often indicates that the new (and unauthorised) work does not infringe on the copyright holder's rights.
Notable examples of transformative use include:
because they give new insight that readers, listeners, or viewers gain from the parodic treatment of the original work.
Search engine use
such as thumbnails in an image search engine for indexing purposes or copies of texts for keyword indexing
because it provides an added benefit to the public, which was not previously available and might remain unavailable without it.
So, is the Kampar mural transformative of the original Dragon Ball work? Does the mural build upon, alter, or repurpose the original in a way that adds new expression, meaning, or message?
Non-Commercial Nature
To clear things up, the non-commercial nature of the Kampar mural is only one of the many factors in determining whether the Kampar mural qualifies as fair dealing. This aspect does favour the argument for fair dealing.
It is interesting to note that in some cases, fair use may still apply despite the commercial or for-profit nature of a potentially infringing work, depending on its "transformativeness." Therefore, the non-commercial nature of the mural alone is not conclusive in establishing fair dealing.
Mural & Augmented Reality
What is definitely NOT considered transformative use at all are mere "changes of form," as held by the US Court of Appeals in Authors Guild, Inc. v. Google, Inc.
One could argue that the Dragon Ball anime and manga characters are "transformed" when depicted in a mural, but this argument would not hold up. The transformation is insufficiently distinct.
The US Court of Appeals explained that:
"While such changes can be described as transformations, they do not involve the kind of transformative purpose that favors a fair use finding."
How about the cool AR feature? It could be seen as another mere change of form. However, one might argue that its interactive nature offers a new function distinct from anime or manga, providing something novel to the public.
Unfortunately, Dragon Ball AR has already been done by the copyright holders, presenting another issue for the Kampar mural's AR feature. This could lead to an additional infringement claim related to the existing Dragon Ball AR work (see below).
A Tribute to Toriyama
This brings us to another potentially transformative factor: the purpose of the mural. Can the Kampar mural avoid infringement by being a tribute to the creator of Dragon Ball?
While the intention is commendable, escaping copyright infringement is challenging. Although the portrait of Toriyama is an original addition, a significant portion of the mural consists of Dragon Ball characters in their original form.
We cannot argue that the Dragon Ball characters were substantially altered or modified enough to separate them from their original context, i.e., entertainment. The standard for transformative use is quite high, as illustrated by several US court cases.
In Warhol Foundation v Goldsmith, the Andy Warhol Foundation was sued for copyright infringement for creating colorful silkscreen "pop art" portraits of the singer-songwriter Prince using black-and-white photographs taken by Goldsmith without permission. Despite arguing transformative use, the US Supreme Court ultimately decided it was NOT transformative enough.
Similarly, in Gaylord v United States, the US Postal Service was sued by a sculptor for copyright infringement for using an image of his Korean War memorial sculpture on a 37-cent postage stamp. Despite arguments that the stamp was different enough from the memorial to be considered transformative, the US Court of Appeals ultimately ruled it was NOT transformative enough.
In both cases, the courts held a high standard for what constitutes transformative use, which would likely apply in a similar fashion to the Kampar mural.
What do you think?
In all fairness, the mural is stunning. However, it remains an unauthorised reproduction. Echoing the sentiments of many netizens: what does Dragon Ball or anime have to do with Kampar, a small Malaysian town?
Murals highlighting local specialties can be just as beautiful and equally effective in promoting tourism. Wouldn't that be a better option for the Kampar MP and ADUN to consider? (Using the "donor's request" as an excuse doesn't hold much weight).
This article is not a definitive answer on whether the mural constitutes infringement. The matter could end up in court, where the judge might rule in favour of fair dealing. It's depends on legal perspective.
And the only way to determine if fair dealing applies is to get sued, endure months of litigation, spend thousands of ringgit on legal fees, and await the court's decision. As far as I'm concerned, getting sued and winning is effectively the same as losing because the effort and money required to defend the suit would never be recouped.
Regardless of your intentions—whether to pay tribute, homage, or otherwise—avoid using the copyrighted works of others without their written permission. If permission is not granted, be creative and find another way to express yourself. Always strive to be original, because copying someone else, even with honourable intentions, is the quickest way to face legal trouble. Instead of creating art, you'll end up creating legal drama.
So, what do you think?
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