Date of
Judgment: February
2, 2012
Issuing
Authority:
Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial (Civil）
Subject
Matter: Others
Main text
of the judgment (decision):
1. The final appeal is dismissed.
2. The appellants shall bear the cost of the
final appeal.
Reasons:
Concerning
the reasons for petition for acceptance of final appeal argued by the appeal
counsels, NAKAMURA Minoru, et al.
1. In this case, the appellants of final appeal
seek damages in tort against the appellee of final appeal, alleging that the
appellee published 14 photographs of the appellants in a weekly magazine
without the appellants' consent, thereby infringing their right to exclusively
use the customer appeal of the appellants' portraits.
2. The outline of the facts legally determined
by the court of prior instance is as follows:
(1) A. The appellants formed a female duo called
"Pink Lady" (hereinafter referred to as the "Pink Lady")
from 1976 to 1981 and performed as singers. The Pink Lady was popular among
diverse age groups ranging from small children to adults. It became a national
fad to mimic the dance moves of their songs.
B. The appellee is a company engaged in the
business of publication, issuance, etc., of books, magazines, etc., including
the weekly magazine "Josei jishin."
(2) Around the autumn of 2006, a weight-loss
method that utilizes the dance moves of the Pink Lady's songs became popular,
mostly among women who are interested in losing weight.
(3) A. On February 13, 2007, the appellee
published the aforementioned weekly magazine (the issue of February 27; Size:
Modified AB, 26cm (length) x 21cm (width), the total number of pages: about
200; hereinafter referred to as the "Magazine"). From page 16 to page
18, the appellee published an article titled "Pink Lady de Diet"
(hereinafter referred to as the "Article").
B. In the Article, an entertainer (hereinafter
referred to as the "Instructor") explains a weight-loss method that
utilizes the dance moves of five songs of the Pink Lady. In the Article, 14
black-and-white photographs (hereinafter referred to as the
"Photographs") of the appellants are used.
(4) A. Above the title "Pink Lady de
Diet" on the right side of page 16 of the Magazine, a photograph (4.8cm
(length) x 6.7cm (width)) of the singing appellants is presented.
B. Page 16 and page 17 are respectively divided
into an upper section and a lower section, and these sections explain the
weight-loss method utilizing four songs, one song per section. The upper
section of page 18 explains such method utilizing the fifth song. Each of these
explanatory sections has a title indicating the weight-loss effect and a
description of the dance moves both in four-frame cartoons and words. Each
section also contains one photograph 5 cm (length) x 7.5 cm (width) or 8 cm
(length) x 10 cm (width) in size and one or two photographs of the Instructor.
C. The upper left section of page 17 of the
Magazine carries a description about the effect, etc., of the weight-loss
method utilizing the dance moves of the Pink Lady's songs. Below the
description, one photograph (7 cm (length) x 4.4 cm (width)) of the appellants
in a swimsuit is presented. On the lower left section of the same page, a story
about matters such as the Instructor's childhood memory of mimicking the dance
moves of the Pink Lady's songs is cited.
D. Below the title "Our Treasured
Photographs of the Memories of the Pink Lady" in the lower section of page
18 of the Magazine, a total of seven photographs of the appellants (size: 2.8
cm (length) x 3.6 cm (width) or 9.1 cm (length) x 5.5. cm (width)) are
presented. Below the photographs, a story about matters such as the memory of
the Pink Lady, similar to the section mentioned above, is cited from an
entertainer who is different from the Instructor. On the left side of the
story, one photograph of the entertainer is presented.
(5) The Photographs were taken by a photographer
affiliated with the appellee with the appellants' consent. However, the
appellants have not given their consent for the use of the Photographs in the
Magazine. The Photographs were published in the Magazine without the
appellants' consent.
3 (1) The name, portraits, etc. of an individual
(hereinafter referred to as "portraits, etc.") are the symbol of the
individual's personality. Therefore, it is construed that any person has the
right to prevent others from taking advantage of his/her portraits, etc., which
is derived from the right of personality (concerning the name of a person, see
1983 (O) No. 1311, judgment of the Third Petty Bench of the Supreme Court of
February 16, 1988, Minshu Vol. 42, No. 2, at 27; concerning portraits, see 1965
(A) No. 1187, judgment of the Grand Bench of the Supreme Court of December 24,
1969, Keishu Vol. 23, No. 12, at 1625, 2003 (Ju) No. 281, judgment of the First
Petty Bench of the Supreme Court of November 10, 2005, Minshu Vol. 59, No. 9,
at 2428). In some cases, portraits, etc., have customer appeal, which can be
used to promote the sale, etc., of goods. The right to exclusively use such
customer appeal (hereinafter referred to as the "right of publicity")
is established based on the commercial value of the portraits, etc.,
themselves. Therefore, the right of publicity may be regarded as one of the
rights derived from the aforementioned right of personality. On the other hand,
in the case of a person whose portraits, etc. have customer appeal, his/her
portraits, etc. sometimes attract public attention and are consequently used in
news, commentaries, work of art, etc, and in some cases, he/she has to permit
such use as a legitimate act of expression, etc. Therefore, the unauthorized
use of portraits, etc., of a person is considered to be infringement of the
person's right of publicity and is found to be illegal under the tort law if
the sole purpose of the use is to take advantage of the customer appeal of the
portraits, etc., more specifically, in such cases where (i) the portraits,
etc., are used as goods, etc., that may be appreciated as independent objects;
(ii) the portraits, etc., are affixed to goods, etc., for the purpose of
distinguishing the goods from other goods, etc.; or (iii) the portraits, etc.,
are used to advertise goods, etc.
(2) In this case, according to the facts
mentioned above, the appellants were popular among diverse age groups ranging
from small children to adults in the late 1970s, and at that time, it became a
national fad to mimic the dance moves of their songs. Therefore, the portraits of
the appellants shown in the Photographs can be deemed to have customer appeal.
However, according to the facts mentioned above,
the Article does not introduce the Pink Lady itself but it explains the
weight-loss method, which utilizes the dance moves of the Pink Lady's songs and
became popular around the autumn of the preceding year, while using both
illustrations and words and indicating the effect of the weight-loss method in
its title. The Article also cites entertainers' stories about their childhood memories
of mimicking the dance moves of the Pink Lady's songs. The Photographs used in
connection with the Article are presented only on three pages out of a total of
about 200 pages of the Magazine. Those Photographs are all black and white and
2.8 cm (length) x 3.6 cm (width) or 8 cm (length) x 10 cm (width) in size. In
light of these facts, it is reasonable to interpret that the Photographs are
used for the purpose of bringing back the readers' memories and supplementing
the content of the Article in the course of explaining the weight-loss method
that utilizes the aforementioned dance moves and of citing entertainers'
childhood memories of mimicking the aforementioned dance moves.
Therefore, it may not be considered that the
sole purpose of the appellee's use of the Photographs in the Magazine without
the appellants' consent is the use of the customer appeal of the portraits of
the appellants and therefore the use of the Photographs may not be found to be
illegal under the tort law.
4. For the reasons stated above, we can affirm
the holding by the court of prior instance to the effect that the act of using
the Photographs in the Magazine may not be regarded as illegal under the tort
law, as it goes along with our reasoning explained above. We cannot accept the
appeal counsels' arguments.
Therefore, the judgment has been rendered in the
form of the main text by the unanimous consent of the Justices. There is a
concurring opinion by Justice KANETSUKI Seishi.
The concurring opinion by Justice KANETSUKI
Seishi is as follows:
Various interpretations have been presented by
lower courts, etc., as to what criteria should be used to determine
infringement of the right of publicity. Since the right of publicity is the
right to exclusively use the customer appeal of the portraits, etc., of a
person, the unauthorized use of customer appeal should be considered as the
main element of infringement.
Celebrities, who have customer appeal, could
naturally attract the legitimate interest of the public in many ways. For instance,
entertainers and athletes often attract attention from people who are
interested in the field of entertainment. Although such public attention could
raise the issue of the right of publicity in some cases, unreasonable
restrictions should not be placed on the reports, news, commentaries, etc.,
about the personality, activities, etc., of celebrities. Since most of
reporting, publishing, and broadcasting activities, etc., are conducted on a
commercial basis, it would be quite possible that the use of the portraits,
etc., of a celebrity as a part of such activities has the effect of appealing
to customers. Therefore, it would be unreasonable to consider the general
commercial use of portraits, etc., as infringement of the right of publicity.
The scope of acts that constitute infringement should be defined as clearly as
possible. On the grounds that Japan does not have a law or an ordinance about
the right of publicity and merely recognizes the right of publicity as a right
derived from the right of personality and that a person whose right of
publicity has been infringed would only suffer financial damage and could seek
a separate remedy if the use of his/her name, portraits, etc., constitutes
defamation or an invasion of privacy, a narrow interpretation of the scope of
infringement should be adopted. This approach should be understood in
association with the judgment handed down by the Second Petty Bench of the
Supreme Court that denied the right of publicity of an object, 2001 (Ju)
No.866, No.867 of February 13, 2004, Minshu, Vol. 58, No. 2, at 311. In the
judgment, the court denied the right of publicity of an object by holding that,
in the case of the use of an intangible element of an object such as the use of
the name of an object, in light of the fact that the Trademark Act and other
intellectual property laws protect rights and, at the same time, clearly
specify the scope and limit of the right of exclusive use so that the grant of
the right of use will not lead to excessive restriction of the freedom of
economic and cultural activities of the public, it would be unreasonable to
provide the owner of a racehorse with the right of exclusive use of the name of
the racehorse and other rights without any underlying laws, ordinances, etc.,
even if the name, etc., of the racehorse has customer appeal.
This judgment presents the following three
patterns where the unauthorized use of a portrait, etc., is considered to be
illegal under the tort law: (i) the cases where portraits, etc., are used as
goods, etc., such as posters and photographs, that may be appreciated as
independent objects; (ii) the cases where portraits, etc., are affixed to
goods, etc., i.e., as so-called character goods, for the purpose of
distinguishing the goods from other goods, etc.; and (iii) the cases where
portraits, etc., are used to advertise goods, etc. These three patterns are
typical cases where the sole purpose of using portraits, etc., is to use their
customer appeal. A study of the relevant lower court precedents has shown that
these three patterns cover most of the cases where infringement of the right of
publicity may be recognized. Aside from these three patterns, the scope of
cases where the right of publicity may be considered to be infringed may become
sufficiently clear if infringement is recognized only if the intention of using
the customer appeal of portraits, etc., is as strong as such intention shown in
the cases that fall under any of the aforementioned three patterns.
The court of prior instance pointed out that, if
there is any purpose other than the purpose of using customer appeal, the use
of customer appeal may not be regarded as the "sole" purpose.
However, it is our understanding that, for example, in the case of a
publication that contains both an article and a portrait photograph, if a study
of the article and the photograph, by comparing the content of the article and
the size, role, etc., of the photograph, reveals that the article plays only a
supplementary role and does not serve any independent purpose or that the
photograph is used in a large size independently from the article, the sole
purpose of the use of the photograph may be interpreted as the use of its
customer appeal. In this case, the word "sole" should not be
interpreted so strictly.
(This translation is
provisional and subject to revision.)