1. Regarding copyrightability of artistic works
(1) The slide produced by the plaintiff (the “Plaintiff’s Slide”) is an aesthetic creation (a so-called work of applied art) expected to be used for practical purposes as playground equipment. In light of the finding by the Supreme Court (Supreme Court Decision rendered on September 9, 2000, by the First Petty Bench; Case No. 1998 [Ju] 332; Minshu Vol. 54, No. 7, p.2481) on the copyrightability of printing fonts which are used for practical purposes as is the case with works of applied art, if a work of applied art has an aesthetic feature worthy of appreciation that can be identified separately from its structure having necessary function to achieve practical purposes, such a work of applied art can be protected as an “artistic work” (defined in Article 10, Paragraph 1, Item 4 of the Copyright Act) which “falls within the…’artistic’…domain” (defined in Article 2, Paragraph 1, Item 1 of the same Act).
(2) The Plaintiff’s Slide cannot be recognized to have such an aesthetic feature as stated above in terms of the structure and the entire shape thereof; therefore, the Plaintiff’s Slide is not considered to be a work of applied art which is protected as 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 an aesthetic feature worthy of appreciation that can be identified separately from its structure having necessary function to achieve practical purposes as an architecture, and thus cannot be protected as 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.
Regarding the summary of the Judgment 1(1), it is considered that the Court adopted the separability theory for the decision of the Tokyo District Court on the question whether “work…falls within the artistic…domain” set forth in the second sentence of Article 2, Paragraph 1, Item 1 of the Copyright Act, and sought the basis thereof in the finding on the copyrightability of the printing fonts by the Supreme Court (Gona U Case – Supreme Court Decision of September 9, 2000; Case No. 1998 [Ju] 332; Minshu Vol. 54, No. 7, p.2481).
It is considered that the summary of the Judgment 1(1) is theoretically closest to the opinion of Professor Ryu Takabayashi (Ryu Takabayashi “Copyright Law from the Ground Up [4th edition]” pp.49-50), the opinion of Professor Toshiya Kaneko (Toshiya Kaneko “Copyright Protection of Applied Arts in Japan: From the Viewpoint of Categorical Approach”, Chosakuken Kenkyu No. 43, pp.92-95), and the opinion of Professor Tetsuya Obuchi (Tetsuya Obuchi “The Dual Structure of Intellectual Property Law in the Protection of Artistic Works and Designs, Especially Applied Arts [3]”, Hoso Jiho Vol. 69, No. 11, pp.3283-3286), etc.
(2) Regarding the summary of the Judgment 1(2), 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”. 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 Court adopted, as in the case of works of applied art on the ground that “architectural works”, which include the Plaintiff’s Slide, are similar to works of applied art, the separability theory for the decision of the Tokyo District Court as criteria for determining copyrightability of architectural work in an explicit way for the first time on the question whether “work…falls within the artistic…domain” set forth in the second sentence of Article 2, Paragraph 1, Item 1 of the Copyright Act.
(2) Regarding the summary of the Judgment 2(2), 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”. 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