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I'm interested in doing translation for Gundam Japanese comics that haven't been licensed outside of Japan for the purpose of enabling other people outside of Japan to do research (e.g. characters, timelines) on Gundam pop culture. In essence on my non-commercial website I would post the raw text (not the original comic page material/image) and the translation along with a link to purchase the actual material at a site I don't own or have vested interest in (no commercial gain for me).

Would this be considered a legal and fair use of 17 U.S. Code § 107's 'research' clause?

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"It Depends." Maybe, and maybe not. But it would be expensive to check, and you should assume not. As a practical matter, fair use is not a reliable doctrine for any but the most obvious of cases.

You are making a translation of the work; by statute this is a derivative work. The copyright owner has the exclusive right to exploit the market for derivative works.

https://en.wikipedia.org/wiki/Derivative_work#United_States_of_America

Fair use is an ill-defined concept where what is safe is decided after-the-fact by a judge who looks at all of the facts and decides how sketchy your situation feels.

Technically he looks at each fair use factor, compares it to a few pre-existing examples in case law, articulates how each factor comes out, and then decides how sketchy it feels. It is a very unreliable process. While we could certainly go through the analysis here, at the end of the day your judge may decide differently, and then your court of appeals may decide differently than that, so there is not a reliable answer. It is not as predictable as applying black-letter law to the facts in most areas of law.

As a practical matter, if you are sued it is going to be expensive for you even if you win, and if you and the judge have differing ideas of what constitutes fair use then it is going to be ridiculously expensive. This is why even colleges and research universities pay for materials rather than relying on fair use.

The only other route I see to limit your risk, short of permission, is that you might be able to bring a declaratory judgment action so as to get a fair use ruling early. That would still be a lawsuit, but it might limit your total costs and liability a bit more. You should consult a copyright lawyer or a good litigator if considering this route. (Or, really, if you plan to move ahead.)

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