Interpreting and playing with precedents (2) Tofu shop case
Editing
Note: This case is written by a non-lawyer for his own study, and the quality of the information in this case is not guaranteed.
The second article is
The Tofu Shop Case
The second article is on the tofu shop case.
Unfortunately, it seems that this case is not included in the IP High Court's case law collection.
Reference commentary here
15_8_2 up.xdw (hokudai.ac.jp)
Journal of Intellectual Property Law and Policy Vol. 15 (2017) pp341-370 Maiko Murai
Also 100 Selection
One Hundred Copyright Precedents, Sixth Edition (Bessatsu Jurist 242)
One Hundred Copyright Precedents, Sixth Edition (Bessatsu Jurist 242)
Yuhikaku
Amazon
pp.10-11
Discussant: Yuki Hirai
Here, let's study with reference to the 100 copyright precedents.
I will try to keep it as simple as possible and not be too strict.
Outline and issues: In a nutshell, this is a dispute about the copyright of a picture drawn by copying Ukiyo-e.
The picture that Mr. A made by copying Ukiyoe was used for a package of tofu without permission, and his heirs went to court against it (Mr. A is deceased).
There is no problem if the Ukiyoe with an expired copyright is used for the package, but if the picture created by Mr. A (hereinafter referred to as "Picture A") has a copyright, this would be a clear violation of copyright.
Therefore, there was a dispute as to whether this copy was a reproduction or a secondary creation.
The conclusion was that it was a reproduction.
Why?
The reason is that there is no additional creative expression.
Let's look at the details.
First, A's heirs have two claims (I'll send you a simplified version)
(1) First of all, each person who sees a Ukiyo-e has a different perception of it. Therefore, no matter how similar a picture is to the original, creativity is given from this point of view.
Preliminary argument: Picture A is different from the original in many ways, and it is considered to have been created by the deceased A (i.e., it is a secondary creation).
On the other hand, the court said
1. There is a need for new creative expression to be added to the original work.
2. The new creative expression should be one that can be felt by those who come into contact with the copied work.
3. If there is substantial homogeneity between the reproduction and the original work, then no matter how the copyist perceives the original work at the time of reproduction and how he reproduces it, it is for the purpose of reproducing the creative expression of the original work, and it cannot be said that the personality of the copyist (in this case, the deceased A) is expressed in the reproduction.
When viewed in this way, there is substantial identity, and therefore, "copying.
As for the preliminary argument
If it is not possible to recognize that a new creative expression has been given to the work, it cannot be said to have copyrightability. Even if the original work is slightly different from the copy due to mere skill of the artist, if there is no creative expression, it cannot be said to be copyrightable.
Therefore, it is still a "copy".
The decision was still "copying".
According to the explanation (summary)
In order to be considered a derivative work, there must be a modification, increase or decrease, or change of specific expression. To be considered a derivative work, there must be a modification, increase, decrease, or change in specific expression, and a creative expression of a new thought or emotion. According to the above two requirements, it is necessary to create a different work while maintaining the characteristics of the original work.
Therefore, it is argued that in the process of creating the copy, the individuality, taste and insight of the deceased A were reflected in the copy, but "there must be a modification, increase or decrease, or change in the specific expression" (omission), and "as long as there is no difference in the specific expression as a result, it cannot be said that it is a derivative work.
Also, even if there is a specific change, the change, etc. must be a creative expression. Mere technical differences (a matter of A's competence) or non-creative changes are therefore regarded as copying.
As long as there is no creativity in the change of the specific expression and the point of the change, it is considered a "reproduction" and not a subjective requirement or an act of mental creation.
People who create derivative works (usually infringing on the original, but assuming the author approves) should pay attention to this point and try to make specific and creative changes!
Now then.
*** Translated with www.DeepL.com/Translator (free version) ***
