Law regarding doujinshi

Question

Doujinshi, as defined on Wikipedia, are self-published works. While not all doujinshi are derived from other manga, they mostly are, like the many Touhou and Naruto doujins. The works that they are derived from are mainly those with copyrights, meaning that the characters depicted in those original works are also protected and thus cannot be used without consent of the copyright holders. However, as we can see from Yuru Yuri, Oreimo and the Comiket in real life, doujinshi are sold in Comiket. When they are derived from other works and sold, it means that their use is for commercial purpose, which would be very likely prohibited by the copyright holders. Yet, they keep selling doujinshi in every Comiket and the police ain't doing anything about it.

Thus my question: what is the law behind doujinshi? Does every doujinshi sold in Comiket have a written consent from the copyright holders? Or is it the case that by labeling their works as doujinshi, they are exempted from the copyright law? What about the R-18+ doujinshi?

Answer 1

To understand the Japanese law, you need to learn the idea of "Antragsdelikt" (親告罪, shinkokuzai). This means if copyright holder doesn't complain about the doujinshi, it's not illegal.

Most publishers in Japan don't prohibit doujinshi (at least explicitly), thus it's not illegal. It's because many commercial manga authors also create doujinshi, and publishers hire manga author from Comiket, so both are in same ecosystem. If publishers prohibit doujinshi, it also "kills" manga authors.

Some mangas like UQ Holder! or Knights of Sidonia" were marked explicitly to allow doujinshi.

^{Symbol of Doujin Mark License, courtesy of Wikipedia}

Many 18+ game makers like Key, Alice or Nitroplus have explicit permit to create doujinshi based on their game. In this case, doujinshi is totally legal.

But when a publisher starts to complain about it, doujinshi will become illegal. For example, there is a doujinshi that titled "The last episode of Doraemon". The original author of Doraemon died before writing the last episode and no one knows the story of the official last episode. The doujinshi contains a fake last episode. In this case, the publisher of Doraemon complained and the author of the doujinshi stopped distributing it.

The future of doujinshi is not clear. If Japan join to the TPP, it will enforce US style copyright system to Japan. Many doujinshi authors are afraid that it means the end of doujinshi world.