Copyright for Fine Art in Japan: Navigating the Idea-Expression Divide and Similarity in Modern and Conceptual Art

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Fine art, encompassing traditional forms like painting and sculpture as well as contemporary genres including modern and conceptual art, is a significant area of creative endeavor. Under Japanese copyright law, these works are eligible for protection provided they embody "creative expression," as stipulated in Article 2, Paragraph 1, Item 1 of the Copyright Act. While the fundamental principles of copyright apply, the unique characteristics of fine art—particularly modern and conceptual art where ideas can be central or the tangible expression minimalist—present distinct challenges in applying doctrines like the idea-expression dichotomy and assessing similarity for infringement.

The bedrock of copyright protection for fine art in Japan is "creative expression." This means:

  1. Idea-Expression Dichotomy: The underlying artistic concept, style, theme, or philosophical message of an artwork is considered an unprotectable idea. Copyright safeguards only the specific, concrete manner in which these ideas are expressed by the artist—the form, composition, technique, choice of materials (as they contribute to visual appearance), and other tangible expressive elements.
  2. Creativity (Sōsaku-sei): The expression must be a result of the artist's individual personality and intellectual activity. For most manually created fine art, this threshold is generally met. However, challenges can arise with minimalist works where the expression is sparse, or with conceptual pieces where the physical manifestation might seem secondary to the idea.
  3. Similarity Assessment: Infringement is determined by applying the "direct perception of essential expressive features" test. A subsequent work infringes if it reproduces the core creative expression of the original fine artwork in a way that these features are directly perceivable.
  4. Scope of Protection: Consistent with general copyright principles in Japan, the "level" or degree of creativity in a fine artwork influences the breadth of its protection. Highly original and complex pieces will typically receive broader ("thick") protection, while works with minimal creative input (e.g., very simple abstract forms) will have narrower ("thin") protection, often only against near-identical copying.

Traditional Fine Art: Applying the Similarity Standard

For more traditional forms of fine art like paintings and sculptures, courts in Japan assess similarity by comparing concrete elements such as subject matter portrayal, composition, lines, forms, color schemes, brushwork or sculptural techniques, and the overall arrangement of visual elements.

  • The Elmyr de Hory case (Osaka High Court, May 28, 1997), which dealt with customs seizure of paintings alleged to be forgeries of works by famous artists like Bonnard, Vlaminck, and Picasso, saw the court affirm similarity. The judgment was based on resemblances in composition, brushwork, and color palettes, even where some differences existed (e.g., a change from lithograph to oil painting for the Picasso-style work). The context of alleged forgery and the fame of the purported original artists likely played a significant role in the court's perception of similarity, particularly for pieces where objective visual overlap might have been more debatable if viewed in isolation.
  • In the Min-ka no Noren (Folk House Noren) case (Tokyo District Court, November 25, 1992), an artist's detailed sketch of traditional Japanese folk houses was found to be infringed by a design printed on a noren (a traditional Japanese door curtain). The court identified similarities in the overall composition, the specific positioning and proportional balance of the depicted buildings, and even minute details such as window arrangements and the rendering of surrounding trees. This case highlights that detailed representational art can receive robust protection for its specific expressive choices. However, if the depicted scene is an actual existing landscape, the artist's creativity lies more in the selection of viewpoint, the artistic rendering, and any modifications from reality, rather than in the fundamental arrangement of the primary subjects dictated by the real-world scene.
  • The Butsuga (Buddhist Painting) case (Tokyo District Court, December 26, 2012) involved reproductions and adaptations of traditional Buddhist paintings, themselves often based on ancient iconographic rules. The court found some of the defendant's works to be infringing adaptations. Similarity was partly based on the detailed depiction of figures, the specific iconography used (such as objects held by deities and their arrangement), and overall composition. The judgment also referred to the defendant's works allowing for a direct perception of the "Bodhisattva's immense power and compassion" purportedly conveyed by the plaintiff's creative rendering. While such "atmospheric" or emotional impact can be a subjective basis, the court also pointed to concrete similarities in the detailed artistic execution. In such cases, originality and creative expression are found in the artist's unique interpretation and skillful rendering of established religious and artistic forms.

The Unique Challenges of Modern and Conceptual Art

Modern and conceptual art forms often push the boundaries of traditional copyright doctrines, particularly the idea-expression dichotomy and the assessment of creativity and similarity.

1. Minimalist Art

Minimalist artworks, characterized by extreme simplicity in form and content (e.g., a few lines, basic geometric shapes, monochromatic canvases), pose distinct copyright challenges:

  • Copyrightability: The primary hurdle is often establishing sufficient creative expression. If the expression is too rudimentary or consists of basic, universally available forms, it may be deemed to lack the necessary manifestation of the artist's personality to qualify for copyright.
  • Scope of Protection: Even if a minimalist work is deemed copyrightable, its scope of protection is almost invariably very "thin." Infringement would likely only be found in cases of virtually identical reproduction, as any slight variation might be enough to take the subsequent work outside the narrow ambit of the original's protected expression.
  • The Gekidan SCOT (Theater Company SCOT) case (Tokyo High Court, September 19, 2000) illustrates this. The case involved stage set designs consisting of arrangements of tall, flat-topped vertical panels, each with a rounded arch-like shape painted internally, predominantly in dark blue and gold. The court acknowledged that the underlying idea or "expression method" of using such panels in this manner was novel and that the defendant's stage design evoked a feeling of derivation from the plaintiff's work due to this shared novel concept. However, it ultimately found no infringement. The court reasoned that the shared elements—the panel shapes, the internal painted form, and the color scheme—were, when considered as specific expressive features, either too abstract (ideas or methods) or, if expressive, not sufficiently similar in their concrete execution in the defendant's work to constitute a taking of protectable expression. This case demonstrates the difficulty minimalist artistic expressions face in securing broad copyright protection; similarity is judged on the concrete details, not on the shared minimalist concept.

2. Conceptual Art

Conceptual art prioritizes the idea or concept behind the work, with its physical manifestation often being secondary, variable, or even dematerialized. This fundamentally challenges the copyright principle that ideas are unprotected:

  • The Idea-Expression Dichotomy is Central: The core artistic concept itself, no matter how original or groundbreaking, is not protected by copyright. Protection can only extend to the specific, tangible expression chosen by the artist to convey or embody that concept, and only if that expression is itself sufficiently creative.
  • The Kinkyo Denwa Box (Goldfish Phone Booth) case is a prominent and highly debated example. The artwork involved a standard Japanese public phone booth structure, filled with water, in which live goldfish were swimming.
    • The Nara District Court (July 11, 2019) initially found the work copyrightable but not infringed by a similar installation. It deemed the core idea—a phone booth transformed into an aquarium for goldfish—to be novel and striking but ultimately an unprotectable idea. When examining the concrete expressive details, it found differences between the plaintiff's and defendant's installations (e.g., type of phone, its placement). A key element, bubbles emanating from the receiver, was considered by the District Court to be a natural consequence of needing to aerate the water for the fish in such a confined space, and thus lacking in creative choice.
    • However, the Osaka High Court (January 14, 2021) reversed this decision, finding copyright infringement. The High Court focused on a specific combination of expressive elements: the phone booth as a water tank, the presence of numerous goldfish, and critically, the public telephone receiver being off its hook, floating in the water, with air bubbles emanating from its earpiece. The High Court found that this particular configuration, especially the image of the receiver seemingly engaged in an impossible underwater call, was a creative expression manifesting the artist's personality and conveying a unique, surreal impression. It concluded that the defendant's installation, which shared these specific expressive features, was an infringing reproduction.
    • The Goldfish Phone Booth saga, with its differing lower and appellate court decisions, starkly illustrates the fine line in conceptual art between an unprotectable (though artistically powerful) idea and a protectable (even if minimalist or assembled) concrete expression of that idea. The High Court essentially determined that the artist's specific staging of the core concept, including the evocative detail of the "calling" receiver, crossed the threshold into protectable creative expression.

3. Appropriation Art and Readymades

Appropriation art involves the intentional borrowing, copying, or alteration of existing images or objects, including other artworks or everyday items (readymades, in the tradition of Marcel Duchamp).

  • Copyright in the New Work: If an artist appropriates pre-existing elements, creativity in their new work can arise from the selection, arrangement, modification, and recontextualization of these elements, and the new meaning, commentary, or aesthetic effect thereby generated.
  • Infringement of Underlying Works: A significant issue is whether the act of appropriation infringes copyright in the pre-existing elements themselves, if those elements are protected. If an artist incorporates a substantial part of another's copyrighted photograph, painting, or sculpture into their own work, it could constitute copyright infringement unless a valid defense, such as fair dealing for criticism or parody (though parody has a less defined status in Japanese law), or a specific statutory copyright limitation applies. The Parody Montage Photo case (Supreme Court, March 28, 1980), discussed in the context of photographic works, touched upon such issues, as it involved altering and incorporating an existing copyrighted photograph into a new satirical image.

Judicial Focus on Concrete Expressive Details

Despite the conceptual complexities inherent in much modern and contemporary art, Japanese courts consistently endeavor to ground their copyright analysis in the concrete expressive features of the works. They will look for specific visual choices and executions by the artist related to form, composition, color, texture, materials (to the extent they contribute to the visual appearance), and overall presentation that can be said to manifest creative individuality.

The challenge remains that in minimalist art, these concrete features may be few and far between, and in conceptual art, their creative significance might be deeply intertwined with, or even secondary to, the unprotectable underlying idea.

The "Atmosphere" or "Overall Impression"

Parties in art-related copyright disputes sometimes argue for similarity based on a shared overall "atmosphere," "mood," "style," or "impression." However, courts are generally cautious about finding infringement based solely on such subjective and abstract commonalities if they are not substantiated by similarities in concrete, protectable expressive features. While the overall impression is a factor, it must be traceable to the taking of specific creative expressions. For instance, in the Gekidan SCOT case, the court acknowledged that the defendant's work gave a similar impression due to the shared (but unprotectable) novel idea or method, yet this was insufficient for infringement when the concrete details differed.

Fine art, in its diverse traditional and contemporary manifestations, is unequivocally eligible for copyright protection in Japan, provided it meets the fundamental requirement of creative expression. However, the application of core copyright principles—particularly the idea-expression dichotomy and the assessment of similarity—can be especially challenging when dealing with modern art forms like minimalist and conceptual art. In these areas, the artistic innovation often lies heavily in the concept or in an extremely reduced form of expression.

Japanese courts navigate these challenges by focusing, as much as possible, on the tangible, concrete expressive choices made by the artist. For minimalist works, this often results in a very narrow scope of protection. For conceptual works, the specific, creative manner in which the underlying concept is manifested is key; the Goldfish Phone Booth appellate decision indicates that even in highly conceptual pieces, courts will seek to identify particular expressive stagings that can be deemed creative and, if reproduced, infringing. The boundary between an unprotectable artistic idea or method and a protectable concrete artistic expression thus remains a critical and often contentious focal point in the application of copyright law to the ever-evolving world of fine art.