Japanese intellectual property law in translation: representative cases and commentary.

• Author: Port, Kenneth L.

1. INTRODUCTION

   Like much of Japanese law, Japanese intellectual property law is often criticized as being inaccessible. This inaccessibility has contributed to the misperception that Japanese case law regarding intellectual property does not exist. Even if it exists, the perception goes, it takes forever to track down and it is nearly irrelevant.

   This Commentary, in a very modest way, is aimed at debunking the myth that Japanese case law regarding intellectual property is either non-existent or less meaningful than its U.S. counterpart. This Commentary consists of five translations of recent, significant intellectual property cases, as well as commentary regarding the relevance and meaning of each case.

   In the end, the most important objective of this Commentary is to show in bright letters that Japanese case law on intellectual property does exist and that it has a very rational and rich intellectual grounding.

   Although the inaccessibility of actual opinions has been hard to refute, in September of 2000 the Japanese Supreme Court added an intellectual property category to its web page, www.courts.go.jp. In one motion, this has drastically reduced, if not totally eliminated, the appearance of inaccessibility. Now, sometimes even on the same day as they are issued--as in the JACCS Case translated below, intellectual property cases are posted on this cite in very easy to read, large Japanese print.

2. MORAL RIGHTS CASE

   Moral rights are given very broad protection in Japan. In the case that follows, a young man produced an adult video tape of a video game character developed by the giant game manufacturer Konami. To enhance the association, the defendant even appears to have changed his last name to be very similar to Konami's name.

   1. Konami, K.K. v. Ichiro Komami(1, 2)

   Formal Judgment

   1. The defendant is hereby enjoined from manufacturing, selling, or distributing the Video Tape as defined herein;

   2. The defendant is hereby ordered to destroy the master and all copies made of the Video Tape as defined herein;

   3. The defendant shall pay the plaintiff the sum of 2,275,000 yen plus 5% interest per annum calculated from July 19, 1998, until this amount is paid in full;

   4. The remainder of plaintiff's claims are hereby rejected;

   5. Costs shall be divided into three parts. The plaintiff shall be responsible for 2/3 and the defendant shall be responsible for 1/3 of those costs.

   6. The monetary awards of this opinion may be enforced provisionally.

   Facts and Reasoning

1. Plaintiffs Demands

   The plaintiff [Konami, K.K.] demands that the defendant, Mr. Ichiro Komami be enjoined from manufacturing, selling, or distributing his Video Tape as defined below. The plaintiff also demands that the master and all copies of that Video Tape be destroyed. The plaintiff further prays for damages in the amount of 10,840,000 yen plus 5% per annum calculated from July 19, 1998 until this amount is paid in full.

   The plaintiff further demands that the defendant publish a letter of apology in the national editions of the Asahi Newspaper, the Yomiuri Newspaper, the Mainichi Newspaper, and the Nippon Keizai Newspaper.

2. Nature of Dispute

   In this dispute, the plaintiff is the copyright holder to a video game for use on a computer. The plaintiff claims that the defendant produced an animated video that is based on the principal characters the plaintiff created. This conduct, the plaintiff alleges, amounts to an infringement of its copyrights (the right of reproduction and the right of adaptation) and its moral rights (the right to preserve the integrity of a work). The plaintiff has prayed for an injunction ordering the defendant to cease its manufacture, sale, and distribution of its Video Tape and for specific monetary damages.

   1. Facts (except for evidence to the contrary, these facts are stipulated to by the parties)

   1. The Parties

      The plaintiff--Konami, K.K.--is a corporation that manufactures and sells video games and other amusement devices. The defendant--Ichiro Komami--is an individual who, under the pen name "Shane," conceives, produces and sells on-the-spot photographs, animations and parodies.

   2. The Plaintiffs Copyrightable Works

      The plaintiff, through its employees, created a computer video game titled "Tokimeki (Heartthrob) Memorial" (hereinafter plaintiffs video game). On May 27, 1994, it secured copyright and moral right protection for plaintiffs video game.

      The plaintiffs video game is a computer video game that simulates life at "Kirameki High" for a Japanese boy. The object of the game is to get the main character, Shiori Fujisaki, or another female student, to express her love to the player of the game on graduation day. The plaintiffs video game is sold as one game for use on the Playstation home entertainment system. (Plaintiff also sells its software for use on PCs but has elected here to focus on the protection of its copyright as used on the Playstation system.)

   3. Defendant's Conduct

      The defendant, without the authorization of the plaintiff, created an animation called "Dogimagi Imagination" using a likeness of Shiori Fujisaki, the principal character in plaintiffs video game (herein referred to as defendant's Video Tape). In January of 1997 the defendant (on consignment) sold its Video Tape to the general public at a store in Tokyo's Akihabara's district. Furthermore, after making sales of its Video Tape, the defendant manufactured and sold serial copies of its work.

3. Issues

   1. Does the Video Tape Infringe the Plaintiffs Copyrights or Moral Rights?

      The plaintiff claims that the defendant is using a likeness of Shiori Fujisaki in its Video Tape. Plaintiff claims that it created the character and made it popular. As such, the plaintiff claims that the defendant's Video Tape infringes both its right of reproduction and its right of adaptation under the copyright law.

      Furthermore, the plaintiff alleges that the defendant's Video Tape is an animated version of Fujisaki's likeness, portraying her engaged in sexual conduct as a form of adult entertainment. As such, the plaintiff alleges that the defendant tarnished the innocent image of Fujisaki, has brought on a transformation of the plaintiffs video game and, therefore, violates the plaintiffs right to preserve the integrity of the work [one of the moral rights under the copyright act].(3)

      The defendant counters that Fujisaki is a generic character lacking sufficient originality to warrant copyright protection. The defendant further contends that characters in the abstract receive no copyright protection. As such, there is no infringement of the plaintiffs right to reproduce the work.

      Next, regarding the right to preserve the integrity of the work, the defendant argues that a side-by-side comparison should be made and that Fujisaki's image should not be part of the analysis. Even if Fujisaki's image is part of the test to determine if this right has been violated, defendant argues, Fujisaki's image--although an honor student--is not innocent. In addition to the fact that the theme of plaintiffs video game is love, it also conjures up images of lovemaking. As such, Fujisaki's image is not innocent.

      Furthermore, even if the plaintiffs right of reproduction and its right to preserve the integrity of the work are infringed, defendant should not be found liable for copyright infringement because defendant created the work in order to connect with his own counter culture.

   2. Damages

      Regarding damages, the plaintiff alleges that the defendant has made a profit of 840,000 yen in selling its Video Tape. Plaintiff alleges that it was damaged in that amount.

      (This amount was calculated as follows: cost per video sold (1,400 yen) - production costs per video (300 yen) x the number sold (900) - animation costs (150,000 yen) = 840,000 yen.)

      The plaintiff further alleges that as the defendant's Video Tape has created nearly irreparable injury to the innocent image of Fujisaki, an image painstakingly created by the plaintiff, damages based on the right to preserve the integrity of the work should be 10,000,000 yen.

      As such, plaintiff claims a total of 10,840,000 yen in damages.

      The defendant takes issue with the plaintiffs claim to monetary damages. The defendant claims that if one takes into consideration all production costs involved in making its Video Tape, it realized no profit from its sales.

      Furthermore, the defendant alleges that its production of its Video Tape was done to defendant's tastes and was only done as a connection to his own counter-culture; the plaintiffs demand for damages is inappropriate.

   3. Apology

      The plaintiff alleges that its moral rights (the right to preserve the integrity of the work) has been infringed by the defendant; it has a right to demand that the defendant publish an apology in order to restore its work's reputation.

      The defendant contests this claim.

4. Judgment

   1. Infringement of plaintiffs copyright and moral rights

      1. Copyright infringement

         Based on the above facts, we hold as follows:

         The plaintiffs video game is the fictitious simulation of a "Kirameki High" from a male student's point of view. It consists of the experiences of everyday life of a male student in his senior year at that school. When certain conditions are satisfied by the player of the game, Shiori Fujisaki or some other female student expresses her love to the player of the game. In the plaintiffs video game, Fujisaki is the lead female character. Fujisaki has a small, pointed chin and large, black pupils (the area below the pupil is accented with red). Her bangs are short but her hair in the back goes down to the middle of her back. She has reddish hair tied up with a yellow ribbon. There is a white line where her neck meets her breastbone. She appears to be the archetypical high school student wearing a light blue uniform. Given the features of her hairstyle and face, we hold that Fujisaki is an original literary creation.

         In the defendant's Video Tape, a female high...