Are Short Phrases Like Slogans and Titles Copyrightable in Japan?

In the world of branding, advertising, and literature, short phrases – from compelling slogans to memorable titles – play a crucial role. But do these concise linguistic expressions receive copyright protection under Japanese law? The answer is nuanced and depends heavily on the nature of the phrase and the elusive concept of "creativity" as interpreted by Japanese courts. This article explores the copyrightability of titles, slogans, and other short sentences in Japan.

The General Standard: Creative Expression is Paramount

Before diving into specific types of short phrases, it's essential to recall the fundamental principle of Japanese copyright law. As stipulated in Article 2, Paragraph 1, Item 1 of the Copyright Act, a "work" (著作物 - chosakubutsu) is defined as "a work in which thoughts or sentiments are expressed in a creative way and which falls within the literary, academic, artistic or musical domain." The key here is "creative expression." Unlike patent law's requirements for novelty or inventive step, "creativity" (創作性 - sōsaku-sei) in Japanese copyright is generally understood to mean that the author's individuality or personality is expressed in the work. A mere imitation or a commonplace expression usually falls short of this standard.

Titles of Works: Generally Beyond Copyright's Grasp

In Japan, the prevailing view is that titles of works, such as novels, films, or articles, are generally not protected by copyright. The primary rationale behind this is that titles are often too short to embody sufficient creative expression reflecting the author's individuality. Granting exclusive copyright to such brief phrases would disproportionately hinder freedom of expression and the ability of others to use common words or simple combinations.

For example, even if a famous novel title were used for an unrelated product or, say, a pornographic film, this would typically not constitute copyright infringement (specifically, infringement of the right of reproduction).

The protection of an author's moral rights in relation to titles is also limited. Article 20 of the Copyright Act grants the author the right to maintain the integrity of their work and its title, meaning the title displayed on their work cannot be altered against their will. However, this does not prevent others from using the same title for a different work. Similarly, Article 113, Paragraph 7 (formerly Paragraph 6, as referenced in some commentaries) deems an act that prejudices the author's honor or reputation as an infringement of their moral rights, but this typically applies to the exploitation of the copyrighted work itself, not a non-copyrightable title.

The Osaka High Court decision on October 8, 2008, in a case concerning the book title "時効の管理" (Jikō no Kanri - "Management of Prescription/Statute of Limitations"), affirmed the denial of copyrightability for the title.

This general exclusion is rooted in the idea that even if copyright is a "relative right" (meaning independent creation of an identical work doesn't infringe), allowing copyright protection for short, common titles simply because someone else later used them (even with knowledge of the first) would be an inappropriate restriction on language.

However, there's a theoretical counterpoint suggesting that not all titles should be automatically dismissed. If a title possesses a certain length and uniqueness, moving beyond a common phrase or a mere description, it might be argued that it contains sufficient creativity to warrant protection. For instance, a title structured like a 5-7-5 syllable haiku or a more evocative, longer title such as 「哀愁の町に霧が降るのだ」 (Aishū no Machi ni Kiri ga Furu no da - "Mist Falls on the Town of Sorrow") could potentially be seen as expressing individuality. In such cases, prohibiting others from using an identical, distinctive title (if their use is based on the original) might not unreasonably impede linguistic activity. This remains largely a theoretical consideration against the backdrop of general non-protection.

Slogans and Catchphrases: A More Flexible Approach

Unlike titles, slogans and catchphrases can be eligible for copyright protection in Japan, provided they meet the requisite standard of creativity. The analysis here is more case-specific.

Even very short poetic forms, like haiku, are generally considered to possess the necessary creativity to be copyrighted works in Japan. This establishes that brevity alone does not preclude copyrightability. However, the inherent shortness of such forms increases the possibility of coincidental similarity or subconscious influence, making infringement analysis complex.

A key case illustrating the potential copyrightability of slogans is the Tokyo District Court decision of May 30, 2001, concerning a traffic safety slogan: 「ボク安心ママの膝よりチャイルドシート」 (Boku Anshin Mama no Hizayori Chairudo Shiito - "I'm safe, more than mom's lap, a child seat"). The court found this slogan to be creative, particularly noting its 5-7-5 syllabic structure achieved using common words. This suggests that the manner of expression—even with ordinary vocabulary—can be a source of creativity.

However, the scope of protection for such "thin copyright" works is typically narrow. In the same Boku Anshin case, a different slogan, 「ママの胸よりチャイルドシート」 (Mama no Mune yori Chairudo Shiito - "More than mom's chest, a child seat"), was deemed not substantially similar to the copyrighted slogan, and thus not infringing. This implies that protection extends primarily to the specific expression, and minor variations or expressions conveying a similar idea might not infringe.

The question of how much creativity is "enough" remains. The IP High Court decision of November 10, 2015, in the Speed Learning Catchphrase case, denied creativity for advertising catchphrases such as 「音楽を聞くように英語を聞き流すだけ/英語がどんどん好きになる」 (Ongaku o Kiku Yōni Eigo o Kikinagasu dake / Eigo ga Dondon Suki ni Naru - "Just listen to English flow by like music / You'll come to love English more and more"). This indicates that even phrases longer than the Boku Anshin slogan are not automatically deemed creative.

There are concerns about granting copyright too readily to very short phrases, especially in the digital age where content is easily disseminated and viewed. If a very short, widely seen phrase is copyrighted, it could inadvertently lead to infringement claims against those who later use similar wording, potentially stifling expression. Some legal thought suggests that, akin to the general non-protection of titles, a certain minimum level of expressive content or length, perhaps comparable to that of a haiku, might be a more appropriate threshold for the copyrightability of slogans and catchphrases to avoid over-protection.

Distinguishing Copyright from Other Legal Protections

It is crucial to remember that even if a title or a short slogan does not qualify for copyright protection, other legal avenues might be available:

• Trademark Law (商標法 - Shōhyōhō): If a title or slogan functions as a source identifier for goods or services (i.e., a brand name or a distinctive advertising phrase), it can be registered as a trademark. Trademark protection focuses on preventing consumer confusion regarding the origin of goods or services, which is distinct from copyright's focus on protecting original expression.
• Unfair Competition Prevention Act (不正競争防止法 - Fusei Kyōsō Bōshi Hō): If a title or slogan becomes a well-known indication (著名表示 - chocho hyōji) of a business's goods or services, its unauthorized use by another party in a way that causes confusion could be challenged under this Act (Article 2, Paragraph 1, Item 1). This protection is based on goodwill and reputation, not on the creativity of the phrase itself.

The Implications of "Thin Copyright"

When short phrases are granted copyright, the protection they receive is often described as "thin." This means:

• Narrow Scope: The protection primarily covers the literal expression or very close paraphrases. Infringement is less likely to be found for phrases that share the same idea but use different wording.
• Focus on Expression, Not Idea: The underlying concept or message of the slogan is not protected, only the specific creative way it has been articulated.
• Higher Bar for Infringement: To prove infringement of a thinly copyrighted short phrase, a higher degree of similarity to the protected expression is generally required than for more substantial literary works.

The Boku Anshin case serves as a good example: while the 5-7-5 structure and the use of everyday language were deemed creative, another phrase conveying a similar safety message with slightly different wording did not infringe. This underscores that the protection adheres closely to the particular form of expression chosen by the author.

Practical Considerations for Businesses

For businesses developing branding elements like slogans, taglines, or even distinctive product names that might also serve as titles, relying solely on copyright for protection in Japan can be precarious.

1. Titles: Assume titles are generally not copyrightable. Focus on trademark registration if the title is to be used as a brand.
2. Slogans and Catchphrases: While copyright is possible if sufficient creativity can be demonstrated, the protection is likely to be narrow. Businesses should:
   • Strive for unique and distinctive wording that showcases individuality.
   • Consider the length and complexity; extremely short or generic phrases are less likely to be protected.
   • Not assume that because a similar idea has been expressed, their new slogan is infringing, or that their own copyrighted slogan protects the underlying idea.
   • Strongly consider trademark registration for key slogans used in branding to secure more robust and predictable protection.
3. Documentation: If a specific creative process was involved in developing a slogan (e.g., unique wordplay, distinct structure), documenting this might be helpful, although the ultimate test is the creativity embodied in the final expression itself.

Conclusion

The copyrightability of short phrases in Japan presents a complex legal landscape. While titles of works are generally excluded from copyright protection due to concerns about hindering free expression, slogans and catchphrases may receive protection if they embody a creative expression of the author's individuality. However, even when granted, the copyright for such short phrases is often "thin," offering a narrow scope of protection primarily against very similar copying. Businesses and creators should therefore be mindful of these limitations and consider other forms of intellectual property protection, such as trademark law, to safeguard their valuable short linguistic assets. The assessment of creativity remains a case-by-case determination, making careful legal counsel advisable when dealing with these concise but potentially impactful expressions.