Ask John: Is Importing Japanese Home Video Really Legal?

Question:
I know DVD bootlegs are illegal, but what about original import DVDs and import Blu-rays? Are they legal in the U.S.A. to buy, and is it legal to buy them online?

Answer:
Although it probably shouldn’t, the importation of legitimate, commercially produced foreign home video releases actually falls into a bit of an American legal grey area. The production and distribution of unlicensed, counterfeit DVDs and Blu-rays is obviously illegal. Such production and distribution violates the internationally recognized Berne Convention for the Protection of Literary and Artistic Works established in 1886. However, while importation of legally produced DVDs and Blu-rays is supposed to be legal for personal individuals, its legality is less clear for professional retailers.

Section 602 of the United States’ Copyright Law states that the importation of a foreign recorded work into America, without the express permission of the legal copyright owner, is prohibited with certain exceptions. The statute stipulates that private individuals (read: collectors) are legally allowed to import one copy of a foreign recorded media for personal, non-commercial use. Of relevance to anime fans, most Japanese DVDs and Blu-rays are designated for either retail sale or rental, but most Japanese home videos are not specifically labeled as “for sale within Japan only.” So, strictly speaking, in most cases individual American collectors do have a legal right to purchase and import one copy of typical Japanese home video releases for their personal collections.

Interpretation of the same section of US Copyright Law suggests, however, that American based retailers ranging from AnimeNation to Ebay sellers to Amazon only have a legal right to import and sell Japanese home video releases to American consumers if the original Japanese distributor specifically approves of and allows the foreign export. Typically American retailers don’t literally seek formal permission to sell copies of Japanese DVDs to American buyers. The presumption is that if Japanese copyright owners and distributors don’t actively stop their DVDs and Blu-rays from being shipped outside of Japan, they tacitly agree to allow foreign exports.

The arbitrariness of tacit approval becomes even more murky when American licensors get involved. For example, although US Copyright Law states that private individuals have a right to purchase and import foreign DVDs, in late 2003 the Disney owned film studio & distributor Miramax began issuing legal demands that American retailers and even private collectors cease importing particular Asian films that Miramax had formally licensed for American release. The theory was that since Miramax had acquired the American distribution rights to films like Zhang Yimou’s 2003 film Hero, Miramax had legally acquired the right to control the American distribution and availability of the film. So Miramax began ordering American specialty video retailers to stop selling certain Asian movies, and tried to prevent American fans and collectors from importing those same films. The problem here is that both principles – collector’s right to import and a distributor’s right to dictate distribution – are legal and valid, but they’re diametrically opposed to each other. Typically American distributors like FUNimation and Sentai don’t prohibit individual fans from buying and importing Japanese releases of anime licensed for American release, but they could try if they wanted to.

Now, with actual original Japanese copyright owners like Aniplex and Bandai Visual exporting their own Japanese home video releases to America themselves, legal prohibitions on other competing specialty retailers doing the same thing seem arbitrary and even monopolistic. According to the strict letter of American copyright law, individual collectors do have a right to import Japanese DVDs and Blu-rays. American specialty retailers don’t necessarily have full legal rights to sell Japanese DVDs and Blu-rays in America, but the practice is considered legal so long as Japanese distributors don’t object, which they typically never do.