Why Danmu Huanxiang (弾幕幻想) is Bad News for Everyone: Stolen Assets and Misunderstandings on the Legal Language of Derivative Works Based on Touhou Project

Acknowledgements to IceFairy for the information, Moogy for suggestions on the legal statuses on derivative works, and Risa for additional information. Any error is of my own doing.

Let’s talk about misleading press releases, stolen assets, intellectual property laws, and the world of doujin game media. This is what I’m sure long-time readers of Mimidoshima are interested in.

Press Release Shenanigans

The story (at least for us who aren’t versed in Chinese fandoms) begins with KLab and Dobala Games announcing that they have a new Touhou fangame for Android and it is open for pre-registration in mainland China. KLab is a rather well-known Tokyo-based smartphone game publisher that has developed titles like Love Live School Idol Festival while Dobala Games is a Shanghai-based smartphone game developer with quite an interesting story that will be told later.

At first glance, the English press release for Danmu Huanxiang looks innocent enough. Skimming through it, we see bizarre corporate jargon about KLab’s Three Pillars or something and a brief description of the game that KLab wants to bring out to the international markets. You might think from the press release is neat and this might be a game to look out for in the future.

But we can actually see problems manifesting already in the title:

KLab to Develop a New Touhou Project Spin-Off Mobile Game for Worldwide Distribution! Pre-Registration for Simplified Chinese Version Starts Monday, April 26!

You see, the Japanese version of this press release is a bit different:

KLab、全世界での「東方Project」の二次創作モバイルオンラインゲーム配信権を取得し開発中!4月26日(月)より簡体字版の事前登録開始

In particular, the game is described as a “Touhou Project Spinoff” (in the English version) and 二次創作/derivative work (in the Japanese version). This difference in terminology is very important as “spinoffs” indicate that Touhou Project is a franchise and has imparted its brand name and blessings onto the game while a derivative work is merely a work derived from Touhou Project.

Labeling a game as a “spinoff” carries weight because it suggests the title is tied to the mainline series and the creator. For example, NieR: Replicant is a spinoff of Drag-on Dragoon 1. This creates an official continuity for players to follow and we have the Word of Yokoo to show for it.

But is Danmu Huanxiang a spinoff in any way?

Not really. It’s — as the Japanese version of the press release says — a derivative work based on the setting of Touhou Project. ZUN has no part in it. This is strictly a legal formality for his legal team to officially and legally recognize that the title has followed the bare minimum to use the setting and be sold internationally. We’ll talk about this aspect in a later section.

Official Licensing? More Like Permissions

The English version of the press release however suggests the game has a bit more than just the formality:

KLab Inc. (Head office: Minato-ku, Tokyo, President & CEO: Hidekatsu Morita, hereinafter referred to as “KLab”) has received an official license from Team Shanghai Alice to create a spin-off based on the “Touhou Project” for worldwide distribution. The game is currently being jointly developed with DOBALA GAMES (Headquarters: Shanghai, China, Representative: Donglin Liu).

(Emphasis mine)

An official license? Even on the Japanese side, the press release says it’s a 公式ライセンス. Surely, that must mean something. While KLab may have mistranslated derivative work into spinoff, this should at least give the title some kind of legitimacy as a work that respects Touhou Project. This act brings our mind the idea of franchising and licensing: a brand allows aspiring entrepreneurs to use its reputation and intellectual property to carve out a niche in the market. Besides McDonalds which pioneered this idea to create a fast food empire, there’s also examples like the Tetris Company which licenses the branding name to third parties (like SEGA’s Puyo Puyo Tetris). It’s possible that KLab may mean “spinoff” to be in the same vein as officially licensing something.

For that, we should look into the Touhou Doujin Guidelines (English version translated by fans as discussed below and Japanese version which is the official version) which outline what official licensing means. In the distribution section, we find this:

If you have obtained an explicit license (個別に許諾を得た物) from Team Shanghai Alice, please clarify such an association in your Fan Content.

You are solely responsible for any troubles caused by your Fan Content. Under no circumstances will Team Shanghai Alice be held responsible for any damages.

If we think of this as a licensing strategy, then this is a bit unusual as there’s an explicit detail referring to Team Shanghai Alice (i.e. the owner of Touhou’s intellectual property) not being “responsible for any damages”. Signs seem to point to that the guidelines may not be considering licensing at all.

More interestingly, the wording for English is “explicit license” which is rather unusual while the Japanese version is more precise: 個別に許諾を得た物. This roughly translates to “having obtained individual/particularized permissions” from Team Shanghai Alice’s legal team itself. This is extremely different from the Japanese text.

The flawed English guideline translation is sourced directly from fans in EN Touhou Wiki who may not have direct contact with anyone in the legal team and for whatever reason is ignoring that their “unofficial” and “not legally-binding” translation of the guidelines are actually used as a semi-official substitute for the real thing. It has chosen to translate this phrasing as “explicit license” because they may have thought explicit meant that it was directly from the horse’s mouth. But based on the Japanese guideline, the wording is supposed to explain how his legal team has given direct permission for distribution.

The word “licensing” in the English version might also be tripping people up as its common usage implies more than explicit permission details. I suspect whoever translated this English guideline may not be aware that licensing actually means more in English or the legal connotations between permission and licensing.

In other words, an “official license” in Touhou Project means less the franchising and licensing we associate with people building their own enterprise based on the brand’s name and more an official/legal recognition that this title is allowed to be distributed and monetized.

Official/Legal Recognition vs Official License

Indeed, in more legitimate projects, we see games not advertising they have been “officially licensed” as a Touhou Project game but as “officially/legally recognized”. To make this point clearer, let’s take a detour and discuss another project that has gone through this official recognition and has not stirred up any controversy visible enough for a Japanese subculture media blog to report on it.

On December 14, 2020, a game called Touhou Dungeon Dive was released on smartphones. You can look at the PR Times article (PR Times is a website that publishes all kinds of press releases) if you wish, but the more important detail is in the headline.

東方Project の公認二次創作ゲーム「東方ダンジョンダイブ」本日サービス開始!

Touhou Dungeon Dive, an officially/legally recognized derivative game, launches today!

(Translation mine)

We see a subtle yet very important difference. Dungeon Dive describes itself as an “officially recognized” derivative work while Danmu Huanxiang describes itself as a “spinoff” in the English press release and a “officially licensed” derivative work. It seems strange that Touhou derivative works could describe themselves through labels with different  degrees of legality, but let’s pursue this further and see how games describe their status in relation to Touhou Project.

On the Japanese Twitter account of Touhou Danmaku Kagura, the announcement tweet reads like this:

The game describes itself as 東方Project初!公認スマホ向けリズムゲーム 『東方ダンマクカグラ』. In English, it translates to A Touhou Project First! An Officially/Legally Recognized Rhythm Game! What’s funny is that the game is the second officially recognized soshage/gacha game on smartphones — that honor goes to the defunct Touhou Cannonball — but it was indeed the first rhythm game of its kind and one of the first few to get official permission and directly from ZUN himself.

Speaking of Cannonball, searching the game on Google brings up the description: 「東方Project」の公認二次創作ゲームがスマホアプリで登場! The English translation reads: An officially/legally recognized Touhou derivative work on smartphones!

On the semi-official Touhou Project website run by Yomoyama, we can read an article announcing the global English edition on the smartphone game Touhou LostWord:

東方Project公認二次創作RPG「東方LostWord」グローバル版 5月11日(火)サービス開始!! 中国版も年内リリース予定で準備中!

The global edition of Touhou LostWord, an officially recognized derivative RPG, is launching on May 11! The Chinese language edition will come out around this year!

株式会社グッドスマイルカンパニーと株式会社NextNinjaの共同プロジェクトである、東方Project公認二次創作スマートフォン向けRPG『東方LostWord(とうほうロストワード)』のグローバル版『Touhou LostWord』が、海外80カ国を対象に5月11日(火)サービス開始を決定したことをお知らせします。

Goodsmile Company and Next Ninja are pleased to announce the global version of an officially/legally recognized Touhou Project derivative RPG for smartphone devices and the game will be available in 80 countries overseas on May 11.

Alright, that’s enough translating PRopaganda. Hopefully, you get the point that many games don’t advertise themselves as officially licensed. Rather, their press releases indicate they have been legally or officially recognized as Touhou derivative works allowed to be distributed commercially.

Sidenote #1: 公認, 原作, and 二次創作

This is likely to be new information for the EN Touhou community because there’s very few — if at all — any decent discussion on the status of derivative Touhou works.

So, I feel the need to introduce two sidenotes before continuing on the post.

The first is 公認 (kounin), which I have already translated above as “officially/legally recognized” but it can be rendered as “legal permission” or “legally verified”. A work described as 公認 is any work that has been given the thumbs up by ZUN’s legal team for wider distribution. The “officially/legally” here does not imply ZUN himself oversaw the work, but his legal team has looked into it based on the Japanese guidelines. Indeed, it may be more correct to suggest that we should be using “legally recognized” over variations using the word “official”. It is not that ZUN gave his seal of approval but rather his legal team.

The second is 原作 (gensaku), which is referring to the original work. In this context, we are talking about the original intellectual property of the Touhou Project series owned by ZUN.

The third term is 二次創作 (nijisousaku), which is the Japanese legal term for derivative works. They are works derived from the original work and this is what we laypeople often understand as Touhou doujin works.

Most derivative works don’t need to be verified (i.e. 公認’d) by the legal team as long as they follow the guidelines in publishing free games. This guideline is lenient enough to allow some monetization of the game like removing ads. Any derivative work that goes beyond this scope — like games with gacha — must get 公認/official permission from the legal team.

These distinctions are necessary as they show the different statuses of various Touhou derivative works in respect to distribution. Legal and ethical questions of the status can be answered through these guidelines.

If that subtle distinction confuses you, think of the various Creative Commons licenses out there and how each license has different limitations on distribution. This is what’s happening except ZUN’s legal team is managing what gets distributed using the Touhou setting.

These distinctions are also why titles are not referred to as 公式 (koushiki) or official by the way! That would be ZUN’s call, not us or possibly the legal team for the matter.

Sidenote #2: Why the Formality?

Before going back on track, we should consider the reason why this formality exists. But first, a caveat: I’m not an expert on Japanese copyright, but I have been following the doujin market for a while. Take the following sidenote as an observation from someone participating in the scene and not as a lawyer or a historian.

It should go without saying that most doujin works are based off existing intellectual property. Much like fanfiction in the West, doujin works exist in the gray zone of legality: while the companies have total control over the intellectual property, they don’t want to smash the doujin creators creating products based on their brands and receive bad press from it. That said, that legal gray zone has always been confusing for everyone to follow.

Let’s use a rather recent example as a case study to show why this territory is quite chaotic: Neon Genesis Evangelion.

In December 2020, Studio Khara (which now owns the IP) has released a peculiar set of guidelines that shocked everyone in the doujin world. Anyone not familiar with the market may think the guidelines are fine, but there’s more than meets the eye.

In particular, many doujin creators were freaking out over this part of the guideline:

以下の表現・内容の創作物の公開は控えてください。
Please refrain from creating works that depict the following content:

4. ポルノ表現そのものを目的としたもの
Any pornographic expression for its own sake

Now, that reads Studio Khara after years of not caring what people were doing to the Evangelion IP suddenly forbidding people from creating Asuka porn. This created a chilling effect with many adult content creators because it’s unclear if this was supposed to apply retroactively or what “pornographic expression” actually meant here. While Studio Khara later expressed that they intended the guidelines to be ambiguous and respectful of doujin creators’ goals and intentions, much of the guidelines like the “pornographic expression” is rather the opposite of ambiguity: they are all-encompassing.

As a result, many doujin creators apologized to their fans for not being able to continue working on Evangelion doujin materials, whether out of principle or the fact these guidelines could threaten their livelihoods. This is not an exaggeration. These vague, all-encompassing guidelines give IP owners some leverage as they can point to the guidelines the doujin creators have broken and Studio Khara could thus possibly enforce these guideline rules on any derivative work they deem unacceptable.

This copyright phenomena is by no means a Japanese one. We see this in the English language world where authors like Anne Rice once infamously cracked down on fanfiction. These issues were so bad that fanfic writers ended up forming groups like Organizations for Transformative Works to defend the sanctity of fanfiction websites like Archives of Our Own. Otherwise, a lot of fandom history would’ve disappeared because writers believe they need to be a copyright cop.

As a breath of fresh air, ZUN has released the doujin guidelines linked above for anyone to create any derivative work they wish from the Touhou setting. This move, small it may seem, has created an entire world of derivative works that span from comics to video games now on consoles and smartphones. These guidelines are so expansive that permission is rarely required from ZUN and his legal team; indeed, permission is only explicitly required when distribution goes beyond the realms of free game websites and Bookwalker.

This is why titles like Touhou LostWord required explicit permissions (and therefore legal/official recognition) from Team Shanghai Alice’s legal team. They are trying to break into more commercial markets and the brand, while lenient in permissions, could suffer from people using the series for more devious purposes. As a result, this formality exists as a check on commercial game publishing.

Alas, Danmu Huanxiang has abused this formality and we must return to this smartphone atrocity once more to understand the allegations and its implications.

Danmu Huanxiang and Its Plagiarized Discontents

So far, I’ve detailed the misleading characterization of the permission/recognition by KLab and the legal battlegrounds of doujin media. But we can still claim that maybe, this was just a silly mistake and this post is trying to drum up some false outrage. If there was real controversy, wouldn’t it make more sense to bring it up in the beginning?

Well, you see: we need to understand the context why this plagiarism is pretty fucked up.

The following section will go into the concrete accusations and claims against Dobala Games’s plagiarism, but this goes beyond the typical stolen asset shenanigans which already suck. This product is being deceptively marketed as an officially licensed work and this plagiarism hurts not just Touhou fans but the entire doujin world.

Let’s start with the history of Dobala Games: Founded on January 31st in 2019 according to KLab’s website, Dobala Games actually predates further because the creators have published a game called 飞天小魔女 (Feitian Xiao Monu) earlier on in 2018, which remains available to download on smartphones in mainland China. We know that these games are connected because they reused the Hakurei Reimu asset and Remilia in the gameplay screenshots too.

A Bilibili user noticed the blatant plagiarism in the game and decided to write up an article sounding the alarm bells for copyright infringement. The article alleges this is an asset flip using the branding of Touhou to make some money without any care or respect to the IP. Worse, there’s some obvious instances of stealing assets from titles like Granblue Fantasy. The game has gained a bad reputation in Chinese circles for being a black hole of copyright infringement.

But Danmu Huanxiang is particularly more egregious. People have found out the background in the banner for Huanxiang‘s PR is actually sourced from a fanwork by Rokusai. Rokusai themself has just tweeted about this theft:

But the concern is even bigger and graver because this has been reported not just on English-language gaming websites specializing in Japanese media like Gematsu — they reiterated the English PR from KLab directly without checking — but also on semi-official websites affiliated with the Touhou brand like the aforementioned Touhou Project news site run by Yomoyama (update: they have hidden the article are now investigating the matter). These affiliated websites are close enough to ZUN’s brand that it is easy for people to assume this plagiarism has gotten an official approval from the creator himself.

We should also remember that, according to the press release, KLab is interested in expanding the game globally and it’s reasonable to view the outreach to English gaming news outlets as preparing the first step to capturing the international market. As one can imagine, a work full of content theft being deemed legitimate would not only hurt the Touhou IP but also the artists whose efforts have been stolen and monetized off by a greedy smartphone asset flipper.

Conclusion

What then can we make of these discoveries?

We can only conclude from the current evidence that Touhou affiliated news sites and gaming websites reporting on the game are not aware of what has just transpired: a Chinese smartphone game developer notorious for plagiarism is trying its luck to get into the international market at the expense of artists.

We don’t know if KLab is aware of this content theft or the developer’s background, so it may be too soon to point fingers at them for aiding this blatant crime. At the very least, they should be notified about what they’re doing in case they are unwitting victims as well. The same goes to those websites reporting on the game because they are platforming plagiarism without realizing it.

Part of the issue comes from a lack of understanding on the legal distinctions of Touhou derivative works. I’m not a IP lawyer by any means, but I am knowledgable enough to recognize something is up with how English-language discourse frames the discussion.

But most importantly, this scandal should make us realize that malicious people can abuse the trust of doujin developers and fanwork creators to get some quick cash. If we care about protecting the doujin world from insidious copyright bullshit and thieves, we should try to scream the word out and make sure we get creators protected from this bullshit.

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