Touhou Smash crowdfunding and ZUN's fancreation rules (discussion thread)

[Omegahugger]

Edit- Page 11 has the translated Yonjin conversation on it. I think that might be a good starting point. You guys?

I think his last post was halfway down page 12.

(Granted.... that doesn't mean he read the Yonjin conversation. So maybe pointing it out would be a good idea too.)

[Disgaeafan1]

Yeah, that was his last post, but he never read around that point. I think alot of concerns around that time were resolved with the TSA email though, so page 11 would be a good start.

[Helepolis]

Hey guys,

Saijee is asking around on Youtube what page of this thread he should start reading on since someone told him he should review the thread before issuing a  Report listing frequently asked questions. I'm not sure because alot of it was circuitous and we have periodic summaries of information. Any ideas?

You're, jokign right? Saijee is fully responsible for this thread himself. Expected he is 100% aware of what is happening from page 1 until #. After all, he is the one who had to announce the Crowdfunding launch here. Sorry, not buying this.

But to be fair:

It's really not that, there is a lot of reading to do and I want to give it my undivided attention but all yesterday I had literally been so busy responding to FB Gmail and YT that I didn't have the time to give this topic the undivided attention that it deserves.

そのうその話をやめてくれませんか？

Reading from actually akj's translation about Monhan and Yonjin's talk would be wise. https://www.shrinemaiden.org/forum/index.php/topic,17884.msg1158025.html#msg1158025 But hey, you already knew that.

[Savory]

It's really not that, there is a lot of reading to do and I want to give it my undivided attention but all yesterday I had literally been so busy responding to FB Gmail and YT that I didn't have the time to give this topic the undivided attention that it deserves.

That sounds like an excuse. If you have time to respond to email and comments on Facebook and Youtube, you can spare a few minutes to read the threads that you yourself made.

[Saijee]

Guys I've started reading thing now and will follow up with a big post when I'm done. I am writing point to address everything chronologically as I am reading.

[Pywackett-Barchetta]

Guys I've started reading thing now and will follow up with a big post when I'm done. I am writing point to address everything chronologically as I am reading.

Thank you. I think a lot of the more visible irritation in this thread came from not hearing back, so it might be a bit heated, but I and many others here very much appreciate you taking the time to address these concerns.

[Alcoraiden]

Holy balls it's Py. HEY PY.

Good to see you back, Saijee. I look forward to the post.

[aUsernameIsFineToo]

I think a lot of the more visible irritation in this thread came from not hearing back, so it might be a bit heated.

I'd like to reinforce that. There's a few continued back-and-forth discussions that speculated upon the reason for your absence, but please don't take them too personally. As was said, that was just a bit of impatience while we followed the situation laid out in front of us.

[Suspicious person]

I guess a conclusion is going to be reached soon then?

Anyway, Saijee, you might want to consider exposing your plans here first next time. It'd be better if you consult about points you might not understand or discuss eventuals problems here before things become messy again. Hope the development goes smoothly, good luck.

[Alcoraiden]

Yeah, it seems like either fully involve yourself here or not at all...because people were getting awfully antsy waiting for you. (Understatement of the year to date, but we have plenty of time. )

[Saijee]

Ok, so finally things have calmed down, and I finally got the chance to catch up on all 18 pages of text lol. You guys flushed this out way deeper than I had imagined and I'm glad that you did, and as of today I am considering massive changes to the game.

First, I want to say thank you, since after reading all the posts I can clearly see you guys are logically and very neutrally going about this in hopes of bringing out the best from the project.

I will be addressing major points that I read through in this topic chronologically.
@ Everything about the Yonjin, and discussion regarding twitter and fb posts up to the demo:
The FB post regarding Wii U, was a reaction based on how only after the first email we received, Fumio had pleaded that we complete the game using "all" of our abilities, and went on to state that with that plead, there should be no need for any more questions. Now it should be known by know to ZUN and TSA that "all of our abilities" includes putting games on the Wii U. That was when I posted about that on FB. Because it sounded that way. Though we eventually decided to send them another email just for the sake of making sure of that.  As for the rest of it, we were aware that people had been discussing the matter here.

@ The confusion regarding me contacting TSA but not hearing from ZUN direction.
While it has always been widely believed that ZUN=TSA, and we thought that too, we were as confused as everyone else to hear of the possibility of other members, and as such were not sure if it was just ZUN or an actual other entity. Now we know better, and now that TSA is a literal team of people.

@ Things people inferred from the conversation between Me and Yonjin on twitter.
When I was tweeting him, I am not sure if he was talking about TSSB specifically, but I wasn't. I was not because he kept on bringing up "distribution" which was something I have not engaged with, as such all comments of mine were about theoretical other western doujin games in general.

@ Touhousubs transcript of monhan and yonjin's conversation.
"Also, crowdfunding is considered to be outside the scope of doujin activities. It's a commercial activity, hence an infringement of copyright and an act of piracy."
Nothing within the ZUN's policy state that crowd funding or investment are not doujin activities. Further more, "commercial activity" involves a business enterprise, which FSS is not. It is not a business, enterprise, or company either. It is literally just a registered Doujin circle, or three people that form the team called FSS.   Finally, nothing about the campaign mentioned or dealt with anything about "profit" . Funds are not profit, as funding is an investment (again not addressed in ZUN's guidlines).

@3 violations:
1* They exposed the Touhou Project without ZUN's permission in a forum (Indiegogo) used by people who are unfamiliar with the doujin culture or the Touhou Project. This will invite criticism even when the service used is not crowdfunding.

2* The Indiegogo page does not clearly credit ZUN. Saijee tweeted earlier that it used to be shown and that he mentioned it in the trailer, but if it's not immediately clear to anyone who visits the page, it's against the guidelines.

3* Also, offering download sales of doujin works is currently not permitted. I do think that the guidelines could perhaps use an update given the situation today, but any action violating the guidelines still takes one outside the scope of doujin."

1: ZUN's guidelines state: "I don't generally review or veto the contents of independent works, so please use your own personal judgement in and take responsibility for your works." (ZUN's guidelines)
"You need my permission to sell commercial goods." (ZUN's guidelines)
"We'll promptly address inquiries from commercial outfits, so please use the following form to contact us."
https://docs.google.com/forms/d/1DPwzhn7stkhXWJ7Oke2zrAiH15hRlUAyKYpfjgJo8-A/viewform?formkey=dFBiWldmOUlCYWpWZm9IWFAxVmJpU0E6MQ
(ZUN's guidelines)

So the first part states he generally does not review independent works, so use your own judgement. Then he says you need my permission to sell and distribute (which we did none of). Then third part tells you where to go to ask his permission. That is where we went to ask for permission in December.

About the part that we need his permission to sell commercial goods. We did not sell anything. And there is no place in his guidelines at all that state you need his permission to start crowd funding campaign for an independent project. Also, you would have thought that if crowd funding was indeed against his guidelines he would have updated them when the first crowd funding campaign for touhou caused him trouble earlier 2014 may.

From our point of view, starting the campaign doesn't break any of the stated rules published on his guidelines. Just to be sure we sent an email to the address he specifically stated.

Your right, starting the campaign before ZUN responded was probably a brash decision. It didn't appear though that any guidelines have or would be broken and to our best judgement, based on the lack of mention in the guidelines relating to what we are doing it appeared as if things were OK.

The first accusation is very murky. I think it is reasonably sound to say that the people that were attracted to IGG were attracted to it because they were in fact Fans of Touhou, and thus by default are the people "most" familiar to doujin culture in the international Touhou Community. They fully understand what Touhou is.

2: The indigogo page DID credit Zun. It is clearly in the original video, and original touhou smash video for indigogo WHICH was on the campaign up till the 18th clearly(when it was discontinued) had proper and full credit to Zun. You can still see it here: http://youtu.be/JrZgrsYnPjg?t=34s

We did not take the video down until we discontinued the campaign on the 18th Yesterday. Yonjin's claims were clearly made before the video was taken down and thus is a false accusation.

And it was on the Indigogo main page all the way up nearly January 15th. Zun clearly tweeted about it while it was credited to him . They are the ones who asked to cancel the campaign. And when we discontinued it and took all the content off, they are now saying that it didn't credit Zun. All the site maintainer of IGG has to do is go back and look when the video was taken down.

Also, what is the scope of Doujin? Because the Doujin community arguably permeates the entire world that is aware of Doujin materials including Touhou.

3: No mentions of sales have been made, and no offering of download sales have occurred. The demo, which is the only download available is and has always been free. Also, accusing FSS for things not stated on the guidelines and admitting that the guidelines need to be updated is... I don't know how fair that sounds, but seems inconsistent at best to us.

And to his solutions:
1: Cancel Indigogo,
 ---Done, is as much as possibly a way that Indigogo can be legally canceled.

2: Provide an explanation in a non-public setting where there are only fans of the Touhou Project.
 ---What is a non-public setting where only Doujin fans exist? Even if we find that setting, the people involved in the project are mainly overseas, And might not have access to this "non-public setting".  They deserve an explanation as well.

3: Donation-ware for free? Sure, I understand and that seems to be what we are primarily looking to. In a non-public setting setting again. I would love to know of any address to this free donation-ware non-public setting website and direct people there if possible.

@"Actual Proof" that we got permission from TSA. I'm not really sure how to prove that we got confirmation without breaking privacy laws regarding emails since they did not authorize us to release the email publicly. And from what I can see above they don't want anything regarding this available on a public setting. Even if I did release the email, people could easily assume it's been Photoshopped.

So, in regards to all that, I'd like to open the floor to you all for opinions on what I stated above.

What do you think the best way to publicize the email would be?

What do you think the safest place to distribute it would be?

And, I keep hearing we broke the "Doujin Guidelines", but I can't seem to find these. The closest thing to this seems to be ZUN's guidelines, however I would love to find them and dissect how we broke them.

In terms of copyright issues, we specifically asked that in the email and they Fumio told us, there is no problem with copyright.

Also, from reading through all of what you all said. Many good points have been brought up. And the more we think about it, the less likely there seems to be any way to get in the clear of controversy with ZUN. From what we can tell, the rules are not limited to the word for word written guidelines, and many extra layers of interpretation can be made at any point by ZUN regarding how he see's the rules. You don't have to believe us, but we did come to an agreement with TSA as stated in the YouTube video. However, we are very aware, that at any moment, Zun can change his mind. This would be catastrophic several months later down the line especially since one of our members has already postponed their education. The data points to releasing the game as donation-ware which is more than likely what we plan on doing. However, and at the end of it even if the theoretical non-public exclusive doujin  website is not considered valid according to Zun it is still against the rules if it is primarily used by foreigners.

The project seems to be very risky even after getting the green light for many reasons regarding development. So we are considering not making this a Touhou game after all. Change the graphics, character names and looks and release it as a different name entirely. The IGG supporters would be made aware of this, and it would further encourage them to retract their perk and hopefully clear up that problem as well.

What is your take on all this?

[Reu]

Like I said on YT
The easy way to do it is to do donationware
As far as I can tell you don't need anything special since the game in itself is free and people who feel like they can/want to support can do so without any perks being attached to the amount they donate.


Honestly, giving up because it's hard to do a Touhou setting feels like running away
no offense to you of course.

[Pywackett-Barchetta]

...they did not authorize us to release the email publicly.

Well, I dunno about you guys, but that explains a lot for me. I will say not having the proof of confirmation there seemed a bit sketchy for a good while, but at least there's a reason for it. I don't really have any way to suggest proof of approval, though.

What do you think the safest place to distribute it would be?

I would lean towards a download available on your own site or, if you can get disks printed, conventions and such would be a great place to get fans of the series looking for a neat impulse buy, especially if fellow fans have given it a spin and enjoyed it. Donation-ware seems like a great way to go, though, as you've said, and having it freely available could make it spread like proverbial wildfire through convention circuits and such.

So we are considering not making this a Touhou game after all. Change the graphics, character names and looks and release it as a different name entirely.

It pains me to say that honestly sounds like a decent idea, if you want to go by crowdfunding and then revisit a Touhou Smash title later on when you're funded and have the basics down, but a lot of the fanbase looking to this primarily for a Touhou game would probably back off, so it could be much, much more difficult in the long run.

It looks like you guys are putting a LOT on the line for this. Definitely go for it in a way that you all feel you can look back at it at the end and be satisfied with the result.

[JxMarik]

The project seems to be very risky even after getting the green light for many reasons regarding development. So we are considering not making this a Touhou game after all. Change the graphics, character names and looks and release it as a different name entirely. The IGG supporters would be made aware of this, and it would further encourage them to retract their perk and hopefully clear up that problem as well.

If you want to make your game without worrying of violating anything, that would be the best option.

Like I said before, you should make your own universe (cast and places) and get known for it, not by making an ambitious touhou game that would overshadow every other.

[Alcoraiden]

...I personally would be hella disappointed (and effectively not interested at all anymore) if this stops being a Touhou project. That's basically the entire reason I and at least some others got invested. You've pushed through actual conclusions on crowdfunding in the Touhou community, which is super useful, and just because you get some flack and some trouble happens doesn't mean you should totally punt the entire game. I think you should relax, take a deep breath, look at why you started this in the first place, and...well, keep calm and carry on.

I'd love to see the current character roster being kept just out of kindness for the supporters but of course I'm 100% insanely super biased because I paid for a character. *shrug*

When you say the project seems risky...frankly, Saijee, you're looking at a forum full of people that got pretty damn mad at you for reasons that *you* get to decide are legitimate or not. You get a say here, too, dude. Separate the advice from the rage is the best suggestion I can give. Don't take this as a lesson that Touhou Smash is a poor idea...take it as an experience like any other and keep going however is reasonable to do so. Truly to let the sheer emotion that blasted out of this thread roll off your back. Keep your chin up, like you've been doing. It's almost over, really, and then you go back to a sane schedule and doing your dev work. Glean some good pieces of information from the thread, store that in mind, and see what you can do from here.

ZUN gave you a conclusion. Let that give you hope. Find a way to get the money back to people, then decide what to do from there. Hell, let them pay you again if they really want to -- if it stays Touhou, I at least would be glad to just throw in as a donation.

You seem to have been a risk-taker so far...don't let people talk you out of making this the Touhou game you want it to be. It'll take longer the way you have to do it now, but you've gotten the big problems over with. You'll be okay, man.

[Saijee]

I fully agree with you Alcoraliden. It is still my full intention to make this the Touhou fan game that everyone want's it to be. But the way that we go about that may need to be more on the "ultimate" side instead of the "fundamental" side.

As ZUN has currently given us the green light to make the game, we still are working to that effect, and are still completely in the mindset to deliver the project as an ambitious and risky fan game.

When we say "considering" (as in these last messages are both Shade and I) we mean to say it as an absolute last resort of an option that we are totally against doing. I, Saijee, don't want to make a random smash game with characters nobody knows or cares about, I started this as a Touhou project 5 months ago, and still am fully intent on finishing it as one.

By the way, are there actually "doujin guidelines" that are apart from ZUNs? Try as I may I cannot find anything of the sort, if one of you know of or could find them, please link us to them.

[Alcoraiden]

So, it's not a guideline. It's a culture. People are saying to imitate the way Japan does doujin works -- starting with your own funding, from scratch, etc. I know many of these "guidelines" were mentioned earlier, but there is a giant brick wall of text that just hit you, so maybe if some folks could sum it up that'd be great -- also for people who might use this thread as a resource in the future. The discussion is long and occasionally repeated or went on tangents or whatnot; a good "this is how doujin works" attempt might be nice.

I think you got this, man. Relax, get some good advice from here, take some time to eat well, sleep, take some deep breaths, etc...and do what you can.

[Stuffman]

The guidelines are not a legally binding document. It literally does not matter what they say or do not say, you cannot use them to protect yourself.

The guidelines are merely a communication from ZUN indicating the kinds of copyright violations he does not intend to pursue. Publishing the guidelines does not relinquish his right to do so.

[tohosubs]

The guidelines are not a legally binding document. It literally does not matter what they say or do not say, you cannot use them to protect yourself.

The guidelines are merely a communication from ZUN indicating the kinds of copyright violations he does not intend to pursue. Publishing the guidelines does not relinquish his right to do so.

This is also what I thought, but reading the laws, I'm not so sure. Here's a relevant quote from the Japanese Wikipedia article on derivative works:

著作権者の許諾（63条）があれば、許諾の範囲内で二次創作物を作成する限りにおいて著作権侵害となることはない。公式ウェブサイトなどで、頒布方法や性表現の有無など一定の条件において二次創作を認めるガイドラインの提示を行っている法人[11][12]や個人の著作権者もおり、ガイドラインに従って権利者に認められた範囲内で利用する場合は侵害にはならない。

You can read 著作権法第63条 for yourself here.

But in either case, your fundamental point, also raised by Drake earlier, still stands:

Touhou Project is not under Creative Commons or any similar license. As Yonjin told Saijee from the start, you do not seem to understand this difference. This is related to the guidelines on derivative works only on a social, informal level. You do not possess the rights, period. The derivative guidelines give freedoms, not restrict.

Crowdfunding is not explicitly covered by ZUN's guidelines, so it's a copyright infringement.

[edit] Of course, it's very sad that we even need to discuss the legality of FSS's actions. Given ZUN's tolerance for derivative works, there should be no problem as long as they don't run so obviously afoul of the admittedly vague guidelines.

[TresserT]

Crowdfunding is not explicitly covered by ZUN's guidelines, so it's a copyright infringement.

I think you guys are missing the point. The way I read it, there's no copyright infringement going on. FSS specifically asked whether copyright was the issue, and TSA said it's not. FSS was wrong in the first place for assuming crowdfunding was okay, but now that issue is solved. The problem now is something different (though not totally unrelated). Of course, whether you believe that is up to you- if it is true, there's no way anyone can prove it (because of email privacy laws).

[YamaOfParadise]

Just calm down and think about this over a period of time. You've already dug yourself a bit of a hole in the project's history by taking brash decisions; but you've also already made it this far, so you might as well go through with it and actually make the game. This doesn't have to be an all-or-nothing scenario. Just learn from mistakes that have been made in the past, think things through, and be gracious that you're allowed to continue.

I'd also highly recommend getting a PR guy on board with y'all, to save yourself some future heartaches. It doesn't matter what kind of person one is, anyone will eventually stick a foot in their mouth, no matter how good intentioned their actions may be.

[Disgaeafan1]

Honestly, I would play this game no matter what the source material is. Touhou Smash is amazing, but so is the chance to see what an original smash game would be like. But I know I'm definitely in the minority around here.

I'd also highly recommend getting a PR guy on board with y'all, to save yourself some future heartaches. It doesn't matter what kind of person one is, anyone will eventually stick a foot in their mouth, no matter how good intentioned their actions may be.

I def agree with this. I could help with it (I come from a marketing/PR background) but I'd recommend somebody that avidly posts on these forums. One of the leaders around these parts. That way you have someone super invested in Touhou that can help you decide how to phrase things.

[Prime32]

But in either case, your fundamental point, also raised by Drake earlier, still stands:

Touhou Project is not under Creative Commons or any similar license. As Yonjin told Saijee from the start, you do not seem to understand this difference. This is related to the guidelines on derivative works only on a social, informal level. You do not possess the rights, period. The derivative guidelines give freedoms, not restrict.

Crowdfunding is not explicitly covered by ZUN's guidelines, so it's a copyright infringement.

This. By default, a project like TSSB is illegal. If ZUN hasn't made an explicit exception for it, you'll be laughed out of any court.

Remember that thing about only releasing doujins in places where people are assumed to understand doujin culture? Well ZUN's guidelines were also released only in places where people are assumed to understand doujin culture. For a variety of reasons, Japan does not like to spell things out - by being a registered doujin circle, and advertising TSSB as a doujin game, you implied that you were aware of all the conflicts with the "doujin code" already.

IIRC the legality of doujins has been in a very fragile place in recent years, due to the direction Japanese copyright law has been headed. If the definition of doujin is stretched too far, it could push doujins out of their current legal grey area and force ZUN to stop allowing Touhou fanworks at all.

[Kilgamayan]

If there is truly no copyright infringement taking place and you have fulfilled your part of the agreement, I would like to know why Ruw was tweeting about the crowdfunding campaign not being canceled. Unless you are prepared to say Helepolis was not being truthful?

[Reu]

If there is truly no copyright infringement taking place and you have fulfilled your part of the agreement, I would like to know why Ruw was tweeting about the crowdfunding campaign not being canceled. Unless you are prepared to say Helepolis was not being truthful?

This has been answered before he even got here.

You can't actually END a flexible funding campaign on IGG early.

[Saijee]

The email has been sent out, a copy of the email was published on the campaign page in both EN and JP. What do you think about this direction toward a solution?

[Alcoraiden]

Yeah, I expect Ruw just saw that the campaign existed on the page and said "it's not closed." Check the funding. There hasn't been a single donation since the page changed to NO MORE CONTRIBUTIONS EVER.

[Reu]

The email has been sent out, a copy of the email was published on the campaign page in both EN and JP. What do you think about this direction toward a solution?

I do enjoy that you made it so that instead of emailing to refund they must email you to discuss.

Hopefully now that money is almost out of the picture we can go back to discussing the game mechanically and it's roster

Because as I said before I do enjoy the demo and the game does have promise

[Alcoraiden]

Oh gosh I look forward to that moment so much, when all this blows over.

[Firestorm29]

Seriously, getting a pr guy can help alot. Also, have you considered possibly allowing the eastern folk a free character via poll, etc. An act of goodwill would go a ways I'd say?