An essay in the June 2008 issue of the Boston University Law Review journal has come out in support of some cases of distribution of fansub versions of anime licensed for commercial release in America. "Lost in Translation": Anime, Moral Rights, and Market Failure, written by law school student Joshua Daniels, argues that heavy editing of Japanese anime series for U.S. release, as was the case with 4Kids Entertainment's handling of One Piece, is a violation of the "moral" rights of its creators. The legal concept of moral rights holds, essentially, that the creator of a work of art or media has a right to present it to the public without alterations. Daniels also makes the case the anime fans specifically and the public in general have an interest in access to entertainment and art in its original, unedited form.
The essay notes that in some cases, heavily edited versions of anime series are the only ones that are available in the American market. However, these versions have frequently been failures from a commercial point of view. To address this apparent market failure, Daniels proposes a new rule that would be included in the U.S. law on copyright. Under the rule, if only an edited version of a foreign film or television program is available commercially in the U.S., any individual or group would be allowed to create and distribute versions, such as fansubs, that are unedited. While unlikely to be implemented, theoretically, the rule could either be used by judges, or actually incorporated into the Copyright Act.
