1. Validity of the provision in question
1) The provision in question broadly restricts the performers’ activities using their acquired skills and experience after the termination of the agreement and restricts their freedom to choose their occupation. Therefore, if the restriction is not reasonable, taking into consideration its purpose, the interests of the music agency protected by it, the disadvantages suffered by the performers, and other circumstances, it should be interpreted as invalid because it violates public order and morals.
2) Since the prior investment recovery claimed by the music agency for the purpose of this provision is not achieved by the above restriction and is irrelevant to the said restriction, and since monetary settlement by other means is possible, and also since it was naturally completed during the agreement for a reasonable period in this case, without further consideration, the said restriction is not reasonable and the provision is invalid in violation of public order and morals.
2. Concerning the group name
1) Publicity Rights
With regard to the group name attached to a group of performers, if each member of the group can be easily recalled as identifying information of the group, it is understood that each member of the group can exercise their right of publicity based on their individual moral rights, which constitute a part of the rights derived from their moral rights. Since the name of the group in this case can easily remind each member of the group, the performers, who are the members of the group, can exercise their right of publicity. On the other hand, in this case, the music agency has no right to exercise the right of publicity of the group name after the termination of the agreement.
2) Performer’s moral rights (rights of attribution)
This applies equally to the right to determine the indication of the name which is the performer’s moral right (Article 90-2 of the Copyright Act).
1. Validity of the provision in question
In judicial precedents, a post-employment non-competition agreement is generally considered to be valid only to a reasonable extent after examining the limitation period, scope of location, scope of occupation, existence of compensation, etc., based on the creditor’s interest, the debtor’s disadvantage, and social interest as described in the summary 1 (1) of the judgment (Nara District Court Decision of October 23, 1970_Lower Courts Reports (civil cases) Volume 21, No.9 and 10, page 1369). Here, the creditor’s interest is not limited to “trade secrets” under the Unfair Competition Prevention Act (Tokyo High Court decision of July 12, 2000 (No.1999 (Ne) 5907)_court website), but in any case, the reasonable scope is considered to be an issue based on the assumption that the creditor’s interest should be protected by a non-competition agreement after the debtor’s retirement. Therefore, it is only natural that, as stated in the summary of the judgment 1 (2), if the music agency’s recovery of its prior investment should not be protected by the restriction on the performers’ activities after the termination of the contract, but there are other ways to protect it and it was already protected during the contract period, the restriction should be deemed unreasonable on that point alone.
2. Concerning the group name
1）The first sentence of the summary of judgment 2(1) follows the court decision (Tokyo High Court Decision of July 10, 2020_ The Hanreijiho, No. 2486, page 44) regarding the criteria for attribution and exercise of the right of publicity pertaining to the name of a group in the performance activity.
2) The summary of judgement 2(2) held that the standard for judging the attribution and exercise of the performer’s moral rights (rights of attribution) pertaining to the name of the group in the performance activity is the same as the standard for judging the attribution and exercise of the right of publicity pertaining to the name of the group in the performance activity.
【Keywords】exclusive management agreements, non-competition agreements, freedom to choose one’s occupation, freedom of business, violation of public order and morals, invalidity, Article 90 of the Civil Code, name of group, publicity rights, rights derived from moral rights, performer’s moral rights, rights of attribution, Article 90-2 of the Copyright Act
※ 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 (Please replace ☆ with @.)