【Copyright Act ★】 A case in which the Court found that, with respect to a photographic work whose subject is a pair of penguins, each one of the penguin pictures in the work can be considered to be independently copyrightable, and affirmed that acts of reproducing and transmitting publicly the respective pictures of the two penguins separately constitute infringements of copyrights of the respective penguin pictures.

The Intellectual Property High Court Decision of December 26, 2019 (Case No. 2018 (Ne) 10048 — Presiding Judge Otaka)

◆ Main text of the case

【Summary of the Judgment】

1. In the case of reproducing part of a work in a physical form, if such part contains creative expressions and can be considered to be independently copyrightable, an act of reproducing such part is considered to be “reproduction”.
    

2. With respect to the photographic work whose subject is a pair of penguins, each one of the penguin pictures in the photographic work can be considered to be independently copyrightable in light of composition, shade, angle of view, and focus position. Therefore, the acts of reproducing pictures of penguins by clipping them together with their respective background pictures from the photographic work, and transmitting the same to the public as a profile image, are found to separately constitute infringements of copyrights of the respective penguin pictures.

【Comments】

1. The summary of Judgment 1 is generally accepted in court cases (Osaka District Court decision of February 23, 1979, Hanrei Times No. 387, p.145 [“Design drawing for Refrigerated Warehouse” case] etc.), and theories (Nobuhiro Nakayama “Copyright Law [the second edition]” (2014, Yuhikaku) p.249 etc.), and no divergent opinions are found in court cases and theories.
    

2. It is generally regarded as a difficult matter to properly recognize independent copyrightability of a part of a work. Therefore, considering creative intentions etc. shown in the photographic work titled “Penguin Parade – Paired Penguins”, there may be divergent opinions regarding the summary of Judgment 2. It can be considered that, in accordance with the general tendency to place importance on intellectual property rights protection in recent years, the Court placed emphasis on the act of verbatim copying approximately a half of the photographic work including one of two subjects.

【Keywords】Penguin, photograph, creativity, reproduction of part of a work, independent copyrightability, profile image
 
※ The contents of this article are intended to convey general information only and not to provide any legal advice.

Kei IIDA (Writer)
Attorney at Law & Patent Attorney (Daini Tokyo Bar Association)

Contact information for inquiries:  k_iida@nakapat.gr.jp