Accidental Inclusion: How Does Japanese Copyright Law Treat 'Utsurikomi' (Incidental Inclusion)?

In today's content-rich world, where photographs and videos are constantly being created and shared, it's almost inevitable that copyrighted works—a poster on a wall, music playing in the background, a character on a T-shirt—will unintentionally be captured. This phenomenon, often termed "incidental inclusion," raises important copyright questions: does capturing and using another copyrighted work in this way, even accidentally and as a minor part of a larger creation, constitute copyright infringement?

Japanese copyright law addresses this issue through a specific provision, Article 30-2, titled "Exploitation of an Ancillary Copyrighted Work Incidental to the Creation of Another Copyrighted Work" (付随対象著作物の利用 - fuzui taishō chosakubutsu no riyō). This is commonly referred to as the utsurikomi provision. Introduced in a 2012 amendment to the Copyright Act (著作権法 - Chosakuken-hō), this article provides a limitation on copyright, allowing certain incidental inclusions under specific conditions.

The Purpose and Rationale of Article 30-2 (Utsurikomi)

The primary goal of Article 30-2 is to prevent the overly strict enforcement of copyright from unduly hindering the creation and exploitation of new works, particularly those made through photography, sound recording, or audiovisual recording. Without such a provision, creators of photographs, films, or broadcasts could face unreasonable burdens and potential liability for capturing minor, unavoidable background elements that happen to be copyrighted.

The provision seeks to strike a balance: protecting the rights of copyright holders of the incidentally included works while allowing reasonable freedom for creators of new, primary works where the inclusion is genuinely secondary and non-prejudicial.

The Two-Step Framework of Article 30-2

Article 30-2 operates in two main steps:

1. Permissibility of Creating the Main Work with the Incidental Inclusion (Article 30-2(1)): This paragraph outlines the conditions under which the initial act of incorporating an ancillary copyrighted work into a new, main work is permitted.
2. Permissibility of Exploiting the Main Work Containing the Incidental Inclusion (Article 30-2(2)): If the creation of the main work is lawful under the first paragraph, then the subsequent exploitation of that main work (e.g., publishing the photograph, broadcasting the film) along with the incidentally included work is also permitted.

Both steps are subject to an important proviso: the use must not unreasonably prejudice the interests of the copyright owner of the ancillary copyrighted work.

Conditions for Lawful Creation with Incidental Inclusion (Article 30-2(1))

For the initial creation of a work containing an incidentally included copyrighted element to be permissible under Article 30-2(1), all of the following conditions must be met:

1. The Main Work is Created by Photography, Sound Recording, or Audiovisual Recording:
   The limitation applies when the new, primary work is created using these specific mechanical means of capture (写真の撮影、録音又は録画の方法 - shashin no satsuei, rokuon mata wa rokuga no hōhō).
   • This means that creations made by other means, such as a painting or a live sketch of a scene that includes background copyrighted material, would not directly fall under Article 30-2. Similarly, a live television broadcast that is not simultaneously recorded might not be explicitly covered, though some legal scholars have discussed the possibility of analogous application in such scenarios.
2. The Ancillary Copyrighted Work is "Difficult to Separate" from the Main Subject:
   The incidentally included work must be one that is "difficult to separate from the matters or sounds constituting the main subject of the photograph, sound recording, or audiovisual recording" (撮影等の対象とする事物又は音から分離することが困難な著作物 - satsuei tō no taishō to suru jibutsu mata wa oto kara bunri suru koto ga konnan na chosakubutsu).
   • "Difficult to separate" is a key interpretive point. While it could imply physical impossibility or extreme difficulty in framing out the ancillary work, a broader interpretation considering social norms and reasonable effort is often advocated. For example, if filming a public event, it might be socially impractical or disruptive to demand that everyone remove branded clothing or that all background posters be covered. The focus is on whether avoiding the inclusion would be unduly burdensome in the context of creating the main work.
3. The Ancillary Copyrighted Work Constitutes a "Minor Part" of the Main Work:
   The incidentally included work must be a "minor part" (軽微な構成部分 - keibi na kōsei bubun) of the overall main work being created.
   • This is assessed both quantitatively (e.g., the size or duration of the inclusion relative to the main work) and qualitatively (e.g., its prominence and importance within the main work). An element that is small in size but forms a focal point or is thematically significant to the main work might not be considered "minor." Conversely, a fleeting glimpse of a poster in a long film sequence, or a barely audible snippet of background music in a lengthy sound recording, would more likely qualify.
4. The Inclusion is "Incidental" to the Creation of the Main Work:
   The reproduction or adaptation of the ancillary copyrighted work must be "incidental to the creation of the [main] copyrighted work" (当該著作物の創作に伴つた - tōgai chosakubutsu no sōsaku ni tomonatta).
   • This implies that the primary creative purpose is focused on the main subject matter, and the ancillary copyrighted work is included unintentionally or as an unavoidable consequence of capturing that main subject. If the ancillary copyrighted work is deliberately targeted or is a central focus of the new creation, this condition would likely not be met.

If all these conditions are satisfied, the act of reproducing (or, if applicable, incidentally adapting) the ancillary copyrighted work during the creation of the main photograph, sound recording, or audiovisual recording is permitted.

Permissible Exploitation of the Main Work (Article 30-2(2))

Once a main work has been lawfully created with an incidental inclusion under Article 30-2(1), Paragraph 2 of the same article permits the exploitation of that main work:

"A person who has created a copyrighted work in which an ancillary copyrighted work is exploited pursuant to the provisions of the preceding paragraph may exploit that copyrighted work [the main work] in a manner and to an extent incidental to the exploitation of that copyrighted work, together with that ancillary copyrighted work."

This means that if a photograph lawfully includes a background poster under Article 30-2(1), that photograph can then be published, displayed, or otherwise used without infringing the copyright in the poster, as long as the poster remains an incidental part of the overall photograph being exploited. The manner of exploitation of the main work must also be legitimate.

The Overriding Proviso: No Unreasonable Prejudice

Both the creation (Paragraph 1) and the exploitation (Paragraph 2) of works involving incidental inclusions are subject to a crucial proviso: the use must not unreasonably prejudice the interests of the copyright owner of such ancillary copyrighted work in light of the type and purpose of such ancillary copyrighted work as well as the manner of its exploitation (ただし書 - tadashigaki).

This acts as a safeguard to prevent abuse of the utsurikomi limitation. Even if the technical conditions of difficulty of separation and minor inclusion are met, if the specific use would unfairly harm the legitimate market or interests of the copyright holder of the included work, the limitation will not apply.

Examples where this proviso might come into play:

• If the "incidental" inclusion becomes a primary focus of the new work or its marketing (e.g., a "spot the hidden character" game where the "hidden character" is the ancillary copyrighted work).
• If the manner of inclusion, though minor, is derogatory or misrepresents the ancillary work in a harmful way.
• If the inclusion, even if minor, directly competes with or supplants a primary market for the ancillary work (e.g., using a snippet of a popular song in a way that makes purchasing the song unnecessary for a specific purpose).

The assessment of "unreasonable prejudice" is a balancing act, considering the nature of the ancillary work (e.g., is it a highly valuable artwork or a generic design?), its intended market, and the specific way it's being used within the main work.

Scope of Permitted "Use"

Article 30-2 primarily addresses acts of reproduction (複製 - fukusei) and, where relevant in the context of adapting the main work, adaptation (翻案 - hon'an) of the ancillary copyrighted work that occur during the creation of the main photograph, sound recording, or audiovisual recording. For example, if a photograph containing an incidental inclusion is cropped, this also crops the included work, which could be a minor adaptation.

The subsequent exploitation of the main work (as permitted by Article 30-2(2)) would then encompass various exclusive rights, such as the right of public transmission if the main work is broadcast or streamed, or the right of distribution if it's published in a magazine.

Limitations and Areas of Discussion

While Article 30-2 provides much-needed clarity, its conditions are quite specific, leading to discussions about its scope and potential gaps:

• Non-Mechanical Creations: As noted, the provision is limited to works created by photography, sound recording, or audiovisual recording. Incidental inclusions in works created by other means (e.g., a detailed painting of a cityscape that includes copyrighted billboards) are not directly covered and would need to be assessed under other copyright principles, potentially relying on arguments that the inclusion is de minimis (too trivial to be infringing, a concept not explicitly codified in Japan but sometimes considered in infringement analysis) or, in very limited circumstances, under quotation rules if applicable.
• Live Broadcasts: The explicit requirement for "recording" means that a purely live, unrecorded broadcast that incidentally captures copyrighted material might not fall directly within the statutory language. Some scholars argue for an analogous application, but the text is specific.
• Strictness of Conditions: The cumulative nature of the conditions (difficult to separate, minor part, incidental, no unreasonable prejudice) means that some common situations involving incidental inclusions might still technically fall outside the safe harbor. The PDF material itself notes that there have been discussions about whether the current provisions are sufficient to cover a wide range of everyday acts, suggesting potential future reforms. For instance, the "difficulty of separation" could be interpreted very strictly (physical impossibility) or more pragmatically (social or practical difficulty). Similarly, what constitutes a "minor part" can be subjective.
• Deliberate but Minor Background Use: If a copyrighted work is deliberately placed in the background of a film set for atmospheric purposes and is minor and not easily separable during filming, its status under Article 30-2 could be debated, particularly concerning the "incidental" nature of its inclusion.

Practical Scenarios and Considerations

The utsurikomi provision is particularly relevant for:

• Media Production: Film crews, news reporters, and documentary makers often film in public spaces where copyrighted works are ubiquitous.
• Advertising: Advertisements shot on location may inadvertently capture logos, artworks, or architectural designs.
• User-Generated Content: Individuals sharing photos and videos on social media frequently capture background copyrighted material.
• Street Photography and Videography: Capturing the ambient environment is the essence of these genres.

Businesses and individuals involved in these activities should be aware of Article 30-2. While it provides a degree of protection, a careful assessment is still needed:

• Is the inclusion truly incidental and minor?
• Is it genuinely difficult to avoid or separate the included work?
• Could the use unreasonably harm the copyright holder of the included work?

If there's doubt, or if the inclusion is more than clearly minor and incidental, seeking a license for the included work remains the safest course of action.

Comparison with U.S. Copyright Law Approaches

The U.S. Copyright Act does not have a direct, specific statutory equivalent to Japan's Article 30-2 for incidental inclusion. Similar situations in the U.S. are typically analyzed under two main doctrines:

1. De Minimis Non Curat Lex (The Law Does Not Concern Itself with Trifles): If the use of a copyrighted work is so trivial or fleeting as to be quantitatively or qualitatively insignificant, courts may find it to be a de minimis use that does not amount to substantial similarity and therefore is not infringing. This is a judicial doctrine rather than a statutory exception.
2. Fair Use (17 U.S.C. § 107): The four fair use factors would be applied. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole" (third factor) and "the effect of the use upon the potential market for or value of the copyrighted work" (fourth factor) would be particularly relevant. An incidental, minor inclusion that has no discernible market impact might well be considered fair use.

Japan's Article 30-2 offers a more structured, condition-based approach compared to the flexible, case-by-case balancing of U.S. Fair Use or the de minimis doctrine.

Conclusion

Article 30-2 (utsurikomi) of the Japanese Copyright Act provides a valuable, albeit specific, limitation on copyright that addresses the practical realities of content creation in environments filled with copyrighted works. It allows for the incidental inclusion of ancillary copyrighted works in new photographs, sound recordings, and audiovisual recordings, provided a set of strict conditions related to the difficulty of separation, the minor nature of the inclusion, its incidental occurrence, and the absence of unreasonable prejudice to the original copyright holder are met. While not a blanket permission for all accidental captures, it offers a degree of legal certainty for creators. However, given the precise nature of its conditions and ongoing discussions about its scope, a careful assessment of each situation remains essential for businesses and individuals creating and distributing content in Japan.