اليابان

Date of Judgment: March 28, 1980

Issuing Authority: Supreme Court

Level of the Issuing Authority: Final Instance

Type of Procedure: Judicial (Civil)

Subject Matter: Copyright and Related Rights (Neighboring Rights)

Summary of the judgment (decision):

1.  Citation in Article 30, para.1, subpara.2 of the previous Copyright Law (Law No.39, 1899) means accommodation of, in principle, part of other person's work in one's work for the purpose 2 of introduction, reference, criticism, etc. It is required that from the viewpoint of the form of the work citing another person's work, the work which is citing the other person's work and the work being cited should be clearly and distinctively recognisable and furthermore, the relationship between both works is that the former is the main and the latter is the subordinate.

2.  In a case where a person modified a photograph taken by another person and used it to produce a montage photograph, if it is possible directly to perceive the essential characteristics of the other person's photograph from this montage photograph, even though the montage photograph can be regarded as a work, its production and publication are an infringement of the author's moral rights unless the other person has given consent.

3.  The publication of the montage photograph in black and white that is synthetically produced by cutting off a part of the photograph taken with a view of a mountain and six skiers coming down from the snow slope with a spur resembling the track of a snow tyre and placing a photograph of a huge snow tyre at the upper edge of the snow slope and the beginning of the above-mentioned spur by likening the ski spur to the track of a snow tyre is an infringement of the right to maintain the identity of the photograph held by the author of the photograph, unless there is consent by the author.

(This translation is provisional and subject to revision.)