Art on Your Car in Japan? Copyright Implications of Custom Calligraphy, Incidental Photography, and Publicly Displayed Works

Japanese Attorney at Law - Bengoshi L.L.

• 6 min read

The desire to personalize our belongings often extends to our vehicles, with some choosing to adorn their cars and motorcycles with custom paint jobs, decals, or even unique, hand-rendered artwork. Imagine a car owner commissions a skilled calligrapher to paint an artistic phrase directly onto the hood of their beloved vehicle. This act, while a personal expression, immediately gives rise to a fascinating array of Japanese copyright law questions. Who owns what rights? Can the car, now a mobile piece of art, be freely photographed? And what happens when those photographs are used commercially?

A foundational principle in copyright law, affirmed by the Supreme Court of Japan in a landmark case concerning an ancient calligraphy scroll (Kao Shinkei Jisho Kenchu Kokushinjo Case, Judgment of January 20, 1984), is that ownership of a tangible object embodying an artistic work is distinct from ownership of the copyright in the intangible work itself.

This means that even if someone owns the car—the physical medium upon which the artwork is displayed—they do not automatically own the copyright to the artwork painted on it. The copyright, which includes rights such as the right of reproduction, typically remains with the artist (the calligrapher, in our example) unless it has been expressly transferred in writing. Therefore, the car owner cannot, merely by virtue of owning the car, authorize others to reproduce the artwork (e.g., by making and selling postcards featuring the calligraphy). That right belongs to the artist.

Is Calligraphy on a Car Hood a Copyrighted "Work of Art"?

For copyright protection to arise, the calligraphy itself must qualify as an "artistic work" under Article 2(1)(i) of the Japanese Copyright Act. This requires it to be a "production in which thoughts or sentiments are expressed in a creative way."

While the linguistic meaning of the characters used in calligraphy (sho) may be common, the creativity lies in the artistic execution: the style of the brush strokes, the balance and composition of the characters, the nuances of ink shading, the overall aesthetic impact, and the unique expression of the calligrapher's skill and personality. A generic, font-like rendering of characters would likely not qualify, but a piece created by a skilled calligrapher, exhibiting distinct artistic merit, generally will.

Even when applied to an unconventional medium like a car hood, if the calligraphy possesses these artistic qualities (as it does in the scenario where a calligrapher uses special paint to achieve an effect comparable to their works on paper ), it can be considered a copyrighted artistic work. Its nature as "applied art" (art applied to a utilitarian object) might invite scrutiny, but high-quality artistic execution capable of conveying aesthetic appeal can secure copyright protection.

If the calligraphy on the car is a copyrighted work, then unauthorized reproduction of it can constitute copyright infringement. Taking a photograph or video of the car where the calligraphy is prominently featured is a common way reproduction can occur.

The critical test for whether a photograph "reproduces" the calligraphic work is whether the photograph captures and conveys the creative expression inherent in the calligraphy. It's not enough that the characters are merely legible. According to guidance from a Tokyo High Court judgment on February 18, 2002 (concerning calligraphy in a lighting fixture catalog), a photograph reproduces a calligraphic work if it allows a viewer to directly perceive the work's aesthetic elements, such as "the uniqueness of the form of the characters, the beauty and subtlety of the lines, the compositional beauty of the character group and blank space, the rhythm and intonation of the brushwork, the brilliance and variation of the ink color, and the vigor of the brush".

Applying this:

  • A clear, detailed photograph where the calligraphy is a central and significant feature (e.g., a photo specifically taken for a postcard showcasing the artwork on the car ) would almost certainly be considered a reproduction of the calligraphic work.
  • Conversely, if the calligraphy appears incidentally—small, out of focus, and barely legible in the background of a larger scene (e.g., a crowd shot where the car is just one element among many )—it might not be considered to have reproduced the creative expression of the calligraphy sufficiently to constitute an infringing act.

Recognizing that copyrighted works can unintentionally appear in photographs or video recordings focused on other main subjects, Japan introduced a provision for "incidental inclusion" (utsurikomi) in its Copyright Act in 2012 (Article 30-2). This allows for the inclusion of such incidentally captured works under certain conditions, without it being deemed infringement.

The key conditions for this exception to apply are:

  1. The incidentally included copyrighted work must be difficult to separate from the main subject of the photograph or recording.
  2. It must constitute only a minor component of the overall photograph or recording.
  3. The use must not unreasonably prejudice the interests of the copyright owner of the incidentally included work.

How this applies to our "art car":

  • If the car with its calligraphy is captured in the distant background of a broad cityscape photograph, appearing very small and not as the focus, Article 30-2 might apply. The calligraphy could be seen as a minor component, difficult to avoid when photographing the main scene.
  • However, if the car (and thus the calligraphy) is a primary subject of the photograph, or a significant and clearly depicted element, it cannot be considered a "minor component," and this exception would not be available. A photo where the "art car" is prominently featured, even if the stated subject is "a car at a traffic light," would likely fail the "minor component" test if the artwork is clearly visible and central.

Another relevant exception is found in Article 46 of the Copyright Act, which permits certain uses of artistic works (and architectural works) that are "permanently installed in an open place accessible to the public, such as streets and parks, or at the outer walls of buildings and other places easily visible to the public" (as defined in Article 45(2)). Such works can generally be exploited by any means not falling under specific prohibitions listed in Article 46 (items i-iv).

The challenge for an "art car" is the "permanently installed" requirement. A car is inherently mobile. However, a Tokyo District Court judgment on July 25, 2001 (the Bus Painting Case), which involved paintings on public buses, interpreted "permanently installed" with some flexibility. The court considered that since the buses regularly operated on public routes, making the artwork constantly visible to the public, the rationale behind Article 46—respect for the public's freedom of action in public spaces and the artist's implied consent to some degree of public interaction with art placed in such environs—could apply.

Could this flexible interpretation extend to a privately owned car displaying significant artwork if it is regularly driven and parked in public places? It's arguable. If the car is consistently out in public view, its artwork becomes a feature of the public environment. The artist, by consenting to their work being on a car, might be seen as accepting a degree of public exposure and incidental capture similar to art on a bus or a mural on a building.

Limitations on the Public Art Exception:
Even if the "art car" is deemed to fall under the general scope of Article 46, the exception is not absolute. Article 46, item (iv), prohibits the exploitation of such an artistic work if it is done "exclusively for the purpose of selling reproductions of the artistic work, or for making and distributing such reproductions". (This prohibition does not apply to reproductions of architectural works, or to making miniature, non-exact copies of sculptures for sale).

  • Application to Different Uses:
    • A Photo in a Themed Book: If a photograph prominently featuring the "art car" and its calligraphy is included as one of many images in a book with a broader theme (e.g., "Cityscapes," as in one of the PDF's scenarios ), and the book is not primarily a vehicle for selling copies of the calligraphy itself, this use might be permissible. The Bus Painting Case found that including photos of the art-adorned bus in a children's educational book about vehicles was not "exclusively for selling reproductions of the artwork". The primary purpose was educational, and the artwork was contextualized.
    • Postcards Featuring the Calligraphy: If, however, postcards are made where the calligraphy on the car is the main or sole subject, and these are sold commercially (as in the PDF's "Hagaki 1" scenario featuring a clear, large image of the calligraphy ), this would very likely be considered a use "exclusively for the purpose of selling reproductions of the artistic work." Such a use would fall under the prohibition in Article 46(iv) and would require the copyright owner's permission.

Applying significant artwork to a vehicle like a car creates a unique intersection of property rights and intellectual property law in Japan.

  • The calligrapher or artist generally retains copyright in their original artistic expression, even if it's on someone else's car.
  • The car owner owns the physical car but not the copyright in the art, and cannot authorize its reproduction.
  • Photographing the "art car" can constitute reproduction of the copyrighted artwork if the creative elements of the art are clearly captured.
  • Exceptions like "incidental inclusion" (Art. 30-2) may apply if the artwork is a truly minor and unavoidable part of a larger scene.
  • The exception for art in public places (Art. 46) might apply to a regularly used car, drawing on flexible interpretations like the Bus Painting Case, but not for uses that are primarily about selling reproductions of the artwork itself (e.g., postcards showcasing the art).

For artists creating such works, and for those wishing to photograph or otherwise utilize images of these "art cars," understanding these distinctions is crucial. Clear agreements between car owners and artists regarding the use and depiction of the artwork can prevent many potential disputes. For third-party photographers and publishers, careful consideration of copyright ownership and the specific nature of their intended use, in light of Japan's nuanced copyright exceptions, is essential.