Copyright for Characters and Sequels in Japan: What's Protected?

Characters from manga, anime, games, and literature often become cultural icons and valuable commercial assets. Similarly, sequels that continue beloved stories or explore familiar worlds are a staple of the entertainment industry. However, the creation and use of characters and sequels raise complex copyright questions in Japan. How does Japanese copyright law (著作権法 - Chosakuken-hō) protect characters? When does creating a sequel infringe upon the original work's copyright? Understanding these nuances is critical for creators, publishers, and businesses operating in or with content originating from Japan.

Copyrightability of Characters in Japan: Expression is Key

The first crucial point is that Japanese copyright law, like that of many other jurisdictions, protects the expression of an idea, not the idea itself. This principle heavily influences how characters are viewed under copyright.

The General Principle: Abstract Characters vs. Concrete Expression

An abstract character concept – encompassing general traits, personality archetypes, or a basic backstory – is typically considered an unprotectable idea. For a character to receive copyright protection, it must be embodied in a concrete, creative expression.

The Supreme Court of Japan addressed this in the Popeye case (July 17, 1997). The Court held that a character, when detached from its specific depiction in a particular installment of a work (in this case, a serialized manga), is an "abstract concept" and not, in itself, a copyrighted work. Instead, each specific, creative depiction of the character within each installment (e.g., each manga panel or animation cel showing Popeye) can be considered a copyrighted work, or part of one. This means that copyright in a character is tied to its particular expressive form.

Visual Characters (Manga, Anime, Games, etc.)

For characters that are primarily visual, such as those in manga, anime, or video games, their specific visual appearance and design are the core elements of their protected expression. Unauthorized reproduction of this visual depiction can lead to copyright infringement.

• Case Law: Early cases like the Sazae-san case (Tokyo District Court, May 26, 1976), involving the unauthorized use of images of a famous manga character on tourist buses, established that the visual representation of a character is protected. Even if the exact frame or source illustration copied cannot be pinpointed, if it is clear that the defendant's depiction is derived from the copyrighted character's visual appearance as established in the original series, a finding of reliance (copying) and infringement is possible. The Tokyo District Court decision in the Popeye Arm Cover case (February 19, 1990) also dealt with infringement through the reproduction of a character's image on merchandise.

The key is that the artistic expression of the character's visual form is what copyright safeguards.

Literary Characters

Protecting literary characters under Japanese copyright law is often more nuanced than for visual characters. Since there is no single, fixed visual depiction created by the author of a purely literary work, protection hinges on the richness and distinctiveness of the character's expression through the text.

• This includes detailed descriptions of the character's attributes, their unique way of speaking (dialogue), their specific actions and reactions, and the complex interplay of these elements that brings the character to life within the narrative.
• General character types or archetypes (e.g., the "hard-boiled detective," the "evil wizard") are unprotectable ideas. It is the author's unique and detailed literary portrayal of such a type that may gain protection.
• Some legal scholars in Japan have noted that the image of a literary character evoked in a reader's mind is often a subjective and personal creation, influenced by the reader's own experiences and imagination, rather than solely the author's direct expression. This can make it more challenging to define the precise scope of copyright in a purely literary character separate from the overall plot and textual expression of the work.

To infringe copyright in a literary character, a subsequent work would typically need to copy not just the character's name or general role, but substantial, specific, and creative expressive details that define that character in the original literary work.

Creating Sequels (続編 - Zokuhen) and Copyright Implications

A "sequel" is a new work that continues the story, features characters, or is set in the world of a pre-existing copyrighted work. The creation of a sequel frequently implicates the copyright of the original work.

When Does a Sequel Infringe the Original Work's Copyright?

The central question is whether the sequel copies protectable creative expression from the original work.

• Copying Unprotectable Elements: If a sequel merely uses general ideas, themes, basic plot concepts, stock character types, or settings described in a very general way from the original, it is less likely to be infringing. These are typically considered unprotectable ideas.
• Copying Protectable Expression: If the sequel copies substantial and specific elements of the original's creative expression, it can constitute copyright infringement. This could include:
  • Detailed plot structures and specific story arcs.
  • Original dialogue and unique character interactions.
  • The specific visual appearance of characters or settings (for visual works).
  • Unique and detailed descriptions of characters or environments (for literary works).

Sequels to Literary Works

Creating a sequel to a literary work, such as a novel, that uses the same characters and setting but features an entirely new plot and dialogue, may not necessarily be an infringement if it does not reproduce the specific creative expression of the plot or character portrayals from the original novel. If only the abstract character concepts and general setting are borrowed to tell a new story, infringement is less likely, especially if the "new" character portrayals in the sequel develop independently without directly lifting detailed expressive elements from the original text.

Sequels to Visual Works (Manga, Anime, etc.)

For visual works, the situation is often clearer. If a sequel to a manga or anime uses the same visual designs of the characters and settings, this directly involves reproducing the original artistic expression. Such use almost invariably constitutes copyright infringement (or at least requires a license from the copyright holder of the original character designs). For example, creating a new Sazae-san manga episode using the established visual appearance of Sazae-san and her family would be a reproduction of those visual artistic works.

Sequels as Derivative Works (二次的著作物 - Nijiteki Chosakubutsu)

In most cases where a sequel legitimately incorporates protected expression from an original work (typically with permission), the sequel will be considered a "derivative work" under Japanese copyright law.

• Right of Adaptation (Article 27): Creating a derivative work, such as a sequel that adapts characters or story elements from an original, requires the authorization of the copyright holder of the original work, as this falls under their exclusive right of adaptation (翻案権 - hon'an-ken).
• Right to Exploit Derivative Works (Article 28): The author of an original work also has rights concerning the exploitation of derivative works based on their original. This means that even if a derivative work (like a sequel) is created, uses of that sequel can also implicate the rights of the original author.

Therefore, creating and exploiting a sequel that draws upon protected elements of an original work typically requires a license from the original copyright holder(s).

The Candy Candy Supreme Court Decision: Impact on Character Rights?

A highly significant and controversial Supreme Court decision related to character rights and derivative works is the Candy Candy case (October 25, 2001). This case involved a dispute between the original story author of the Candy Candy narrative and the manga artist who created the visual depictions of the characters for the manga. The issue was whether the story author could control the manga artist's subsequent uses of the character images that the artist herself had visually designed.

The Supreme Court ruled that the original story author could indeed exercise copyright control over the character images as depicted in the manga, even though those specific visual expressions were created by the manga artist. The Court reasoned that these character depictions, being based on the original story, were part of the derivative work (the manga), and under Article 28, the original author retains rights in the exploitation of derivative works.

• Implications and Controversy: This decision has been interpreted by some as potentially strengthening the control of original authors (e.g., of an underlying story) over the characters as they are visually expressed in derivative works (e.g., by a manga artist or animator). However, the ruling is heavily criticized by many legal scholars in Japan. Critics argue that it overextends the original author's rights to encompass creative expression they did not personally create (i.e., the visual artwork of the derivative author) and could unfairly restrict the derivative author's ability to utilize their own artistic contributions. They contend that the original author's rights in a derivative work should primarily extend to the reproduction of their original story's expression within that derivative work, not to new, distinct artistic expression added by the derivative creator.

The Candy Candy doctrine remains a point of contention and adds complexity to the analysis of rights in characters that are developed through collaboration or adaptation.

Practical Considerations for Using Characters and Creating Sequels

Given the legal landscape, businesses and creators should consider the following:

1. License, License, License: When intending to use pre-existing characters (especially their visual depictions) or create sequels based on existing works, obtaining appropriate licenses from all relevant copyright holders is the safest and most common approach.
2. Distinguish Idea from Expression: Carefully analyze what elements are being borrowed from an original work. Are they merely unprotectable ideas, themes, and character archetypes, or are they specific, creative expressions?
3. Visual vs. Literary: Recognize that the threshold for infringing character rights is often lower for visual characters (where visual similarity is key) than for purely literary characters (where substantial taking of detailed textual expression is needed).
4. Risk Assessment: Creating unauthorized sequels or using characters without permission carries significant legal risks, including claims for injunctions, damages, and reputational harm.
5. Contracts for Collaborative Creation: When characters or stories are developed collaboratively (e.g., a writer and an artist for a comic), clear contractual agreements from the outset regarding authorship, ownership of economic rights, moral rights, and rights to create future works (like sequels or spin-offs) are essential to prevent disputes like those seen in the Candy Candy scenario.

Brief Comparison with U.S. Law

U.S. copyright law also grapples with character protection and sequels:

• Character Protection: U.S. courts have developed tests for character copyrightability. For literary characters, the "sufficiently delineated" test (whether the character is well-developed and constitutes the "story being told" rather than just a "chess piece") is often cited. For graphic characters, their visual expression is generally protectable if original.
• Sequels and Derivative Works: Creating sequels that borrow protected expression also constitutes the creation of derivative works requiring permission in the U.S. The principles of distinguishing idea from expression are similarly crucial.
• Fair Use: The U.S. Fair Use doctrine can sometimes play a role in permitting transformative uses of characters or elements from existing works, particularly in parody or critical commentary, which is a more flexible standard than Japan's specific enumerated limitations.

Conclusion

Navigating the copyright implications of using characters and creating sequels in Japan requires a careful focus on what constitutes protected creative expression. While abstract character ideas are generally free to use, the specific visual or detailed literary expression of a character is protected. Sequels that reproduce substantial creative expression from an original work will typically require authorization. The legal landscape is further nuanced by seminal case law like the Popeye and Candy Candy decisions, underscoring the need for creators and businesses to proceed with a clear understanding of Japanese copyright principles and, where any doubt exists, to secure appropriate licenses.