Facts

252 田村善之「雑誌の休廃刊の際の挨拶文の創作性が問題となった事例――ラストメッセージin最終号 事件」ジュリ1113号257頁（1997）。

253 東京高裁平成11年（ネ）5641号。

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The plaintiff X is a calligrapher. Defendant Y1 is a company managing lighting technicians and Y2 is a company preparing advertising. X had three pieces of works which were using various kinds of writing brushes to write brush-written characters in some certain size. In order to propagate the products of three types of lighting technicians, the defendants made a series of catalogues and in the catalogues, the photographed X’s works were also included in them without authority. The photos were compositions in the set design so as to exhibit Y’s products in the Japanese-style room. Therefore, plaintiff X claimed damages for the action of defendants Y infringed his Right of Reproduction, Right of Attribution and Right to Integrity.

4.2.2 The Decision

The court decided that to be as a reproduction work of the original work, the content and the form of characteristics of the original in the reproduction should be perceptible by the common people. And the expression part of the calligraphy itself also includes the shape, the size of the character, the shade of the ink, the combination of each character in a piece of work and so many other things that the calligrapher can develop the copyright owner’s own personalized expression. And so that it is worth protection of Copyright Law as a copyright work. The court decided that the standard to judge whether it is a reproduction work or not for a calligraphy is that whether the reproduction reappears the part of the original or not.

Consequently, to compare the work of X’s and Y’s, we can see that the size of the Y’s work is too small to recognize the shade of the ink, the shape of the character and so on which are the expression part of the original, although we can recognize what the characters are on the Y’s photos unless we have general attentiveness. That is to say, from Y’s reproduction, we cannot see the characteristic part in the X’s work and therefore we can’t feel the essential part of X’ work and so Y’s work is not a reproduction of X’s work. And because of the said reason, there will be no damages according to the right of attribution and the right to integrity claimed by plaintiff X.

4.2.3 Analysis

The plaintiff X claimed damages based on three rights in him, i.e., Right of Reproduction, Right of Attribution and Right to Integrity. As a whole, the court analyzed the Right of Reproduction mainly, for example, given us the criterion to judge whether a work is a reproduction. And then, based on the situation of the judgment of the right of the reproduction, court gave us the decision in deciding the other two rights.

Around other four points at this issue except the point in determining the reproduction, we can see that as to the second point, which is whether it is a quotation or not, the defendant based on Article 32 of the Copyright law claiming that first, the original was “already made public”, and second, the original was just a decorative element of

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the Japanese-style room to propagate their product which they thought that their action was fair business activity which “is compatible with fair practice” in the copyright law. But the plaintiff had another understanding in reading the meaning of

“compatible with fair practice” and “to the extent justified” in Article 32. They defended that the character of the clearness and distinction and the character of subordination to the original couldn’t be found in the defendant’s work, so it couldn’t be classified in quotation and what’s more is that commercial activity shouldn’t be judged as “fair practice” and therefore, the defendant had no necessity to have to use the plaintiff’s work.

As to the fourth point, the plaintiff’s right to integrity, the plaintiff claimed that there were some changes in the original. Therefore, the right was infringed by the defendant.

The defendant defended that these changes weren’t against the plaintiff’s will²⁵⁴ and therefore it wasn’t infringed the right to integrity in plaintiff.

As in the article of the Limitations on Copyright and Fair Use written by Professor Yoko Yama, it said that court shouldn’t be particular about the two factors, i.e., the character of the clearness and distinction and the character of subordination to the original. Because both two factors is from the jurisprudence of the precedent, which may not have an correspondent article, namely, if it does not satisfy the two factors, but satisfies the request written in the Article 32, i.e., “already made public”, “is compatible with fair practice” and “to the extent justified by the purpose of the quotation”, then the action can also be determined as legitimate quotation²⁵⁵. In the end, the court held that the defendant didn’t infringe the plaintiff’s copyright.

We can still find the influence of Montage Photo Case discussing the character of the clearness and distinction and the character of subordination to the original. However, the present court also used the method of whether the original work could be substituted by the defendant’s work or not, which is the fourth factor in fair use doctrine of the effect on the market for the copyrighted work. Although the court denied the application of fair use doctrine, it still has the same concept to regulate cases related to issues of the limitations on right.

4.2.4 Conclusion

The court didn’t shift its angle of consideration to think that the problem is not at whether people can feel the essential part of the infringed work or not,²⁵⁶ but whether the infringed work can be substituted or not. The calligraphy in the case is too small to see and it is just a background in observer’s eyes,²⁵⁷ but anyhow, it is not that

254 1701 Case Times, 157.

255 横山久芳「著作権の制限とフェアユースについて」パテントVol.62 No. 6 (2009) 50頁。

256 岡崎洋「背景の書－照明器具カタログ事件（東京地裁平成11年 10月27 日判決批評）」別冊ジュリ 157号128頁（2001）。

257 上野達弘「著作権法における権利制限規定の再検討 ――日本版フェア・ユースの可能性――」コピ 560 号 2 頁(2007)。