1. Regarding copyrightability of artistic works
(1) The Plaintiff’s Slide is produced to be used for practical purposes as playground equipment. It is construed that even a work created for practical purposes “falls within the…’artistic’…domain” (defined in Article 2, Paragraph 1, Item 1 of the Copyright Act) as a work of applied art, if such a work has an aesthetic feature worthy of appreciation. However, with respect to mass production product of a work of applied art other than a work of artistic craftsmanship, it is not appropriate to protect its structure or shape necessary to realize practical functions of such a product by copyright. Therefore, it is reasonable to understand that if a work of applied art other than a work of artistic craftsmanship has a part containing creative expressions which is an aesthetic feature worthy of appreciation that can be identified separately from its structure having necessary function to achieve practical purposes, the entire work of applied art containing such a part can be protected as an artistic work.
(2) The Plaintiff’s Slide cannot be recognized to have such an aesthetic feature in each structure as stated above, and the entire shape thereof cannot be considered worthy of appreciation or having a part containing creative expression which is an aesthetic feature; therefore, the Plaintiff’s Slide does not fall under an “artistic work”.
2. Regarding copyrightability of architectural works
(1) “Architectural works”, which include the Plaintiff’s Slide, are similar to works of applied art; therefore, in determining whether the Plaintiff’s Slide is copyrightable or not as an architectural work, it is appropriate to use the same criteria as those used for works of applied art.
(2) The Plaintiff’s Slide cannot be recognized to have, in its each structure, a part containing creative expression which is an aesthetic feature worthy of appreciation that can be identified separately from its structure having necessary function to achieve practical purposes, and the overall appearance cannot be considered worthy of appreciation, and does not contain creative expression which is an aesthetic feature; therefore, the Plaintiff’s Slide does not fall under an “architectural work”.
Photograph of the front of the Plaintiff’s Slide
【Cited from Exhibit 1 “List of the Plaintiff’s Slide” attached to Written Judgment】
1. Regarding copyrightability of artistic works
(1) Regarding copyrightability of applied art, the separability theory (Fashion Show Case – IP High Court Decision of August 28, 2014, Hanji No. 2238, p.91) and the non-limitation theory (TRIPP TRAPP II Case – IP High Court Decision of April 14, 2015, Hanji No. 2267, p.91) prevailed over the stringent requirements theory which was similar to the stage theory and was previously adopted in many lower court cases, and both the separability theory and the non-limitation theory exist in decisions of IP High Court cases. Recently, the separability theory has become prevalent in subsequent cases of lower courts, especially the Tokyo District Court. It is understood that the original decision (rendered on April 28, 2021, by the Tokyo District Court) adopted the separability theory on the question whether the work in question “falls within the artistic…domain” set forth in the second sentence of Article 2, Paragraph 1, Item 1 of the Copyright Act. While on the other hand, the summary of the Judgment 1(1) is understood to have adopted the separability theory on the question whether the work in question is “a production in which thoughts or sentiments are expressed in a creative way” set forth in the first sentence of Article 2, Paragraph 1, Item 1 of the same Act.
It is considered that the summary of the Judgment 1(1) is theoretically closest to the opinion of the presiding judge in the Fashion Show Case of the IP High Court (Ryuichi Shidara “Consideration on Applied Arts”, Festschrift in Honour of Professor Toyohiro Nomura’s 70th Birthday “Intellectual Property, Computer and the Law”, p.289″.
(2) Regarding the summary of the Judgment 1(2), it is understood that the Court applied the summary of the Judgment 1(1) to the Plaintiff’s Slide, and then denied that the Plaintiff’s Slide “falls within the artistic…domain”, and also denied that the Plaintiff’s Slide is “a production in which thoughts or sentiments are expressed in a creative way”. The summary of the Judgment 1(2) is consistent with previous decisions which denied copyrightability rendered in many similar cases (concerning product design or industrial design of useful articles) except for the IP High Court decision rendered on April 14, 2015, mentioned above.
2. Regarding copyrightability of architectural works
(1) Regarding the summary of the Judgment 2(1), the IP High Court found, on the ground that “architectural works” which include the Plaintiff’s Slide are similar to works of applied art, in an explicit way for the first time that copyrightability of architectural work is to be determined using the same criteria as those used for works of applied work.
(2) Regarding the summary of the Judgment 2(2), it is understood that the Court applied the summary of the Judgment 2(1) to the Plaintiff’s Slide, and then denied that the Plaintiff’s Slide “falls within the artistic…domain”, and also denied that the Plaintiff’s Slide is “a production in which thoughts or sentiments are expressed in a creative way”.
The summary of the Judgment 2(2) is consistent with previous decisions which denied copyrightability rendered in many similar cases (concerning architectural design of residential houses etc., e.g., Grenier Dyne Case－Osaka High Court Decision of September 29, 2003, court website; Log-cabin-style Wooden House Case－Tokyo District Court Decision of October 17, 2014, court website).
【Keywords】Works of Applied Art, copyrightability, stage theory, stringent requirements theory, separability theory, non-limitation theory, useful articles, product design, industrial design, slide, ミニタコ [Minitako]
※ 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