Copyright for Pop Culture Merchandise in Japan: Are Toy Figurines, Their Photos, and Collector Databases Legally Protected?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

The global appeal of Japanese pop culture has fueled a massive market for collectible merchandise, from intricately detailed toy figurines to character goods. As these items are created, photographed, and cataloged by manufacturers, collectors, and fan communities, a complex web of intellectual property questions arises. Are the figurines themselves works of art eligible for copyright? Do photographs of these items gain their own copyright protection? And what about the databases and online galleries meticulously curated by fans and companies alike? This article delves into how Japanese copyright law addresses these issues.

At the heart of the matter is whether a mass-produced decorative or collectible item, like a toy figurine, can be considered an "artistic work" protected by copyright. The Japanese Copyright Act, in Article 2(1)(i), defines a "work" as a "production in which thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain." While this definition seems broad, its application to "applied art" (ōyō bijutsu)—art applied to functional or mass-produced items—has historically been complex in Japan.

The primary tension arises from the interface between copyright law and design law (the Japanese Design Act, Ishōhō). The Design Act protects novel industrial designs through a registration system, granting rights for a limited term (currently 25 years from the filing date). Copyright, on the other hand, arises automatically upon creation, requires no registration for its basic existence, and lasts much longer (generally, the life of the author plus 70 years). Granting full copyright protection to all industrial designs could arguably undermine the specific regime and balance of interests established by the Design Act.

The Traditional "Higher Aesthetic Standard" for Applied Art

Reflecting this tension, many Japanese court decisions in the past adopted a more stringent standard for granting copyright protection to works of applied art compared to works of purely fine art (like paintings or sculptures not intended for mass production). This often involved one or both of the following considerations:

  1. Aesthetic Level Comparable to Fine Art: The work needed to possess a degree of artistic quality or aesthetic appeal that was on par with fine art.
  2. Separability of Aesthetic and Utilitarian Features: The aesthetic features of the work needed to be conceptually or physically separable from its utilitarian functions. If the design was primarily dictated by function, copyright was less likely.

For example, in a notable case decided by the Osaka High Court on July 28, 2005, concerning small collectible figurines sold as bonus items with confectionery, the court differentiated between types of figurines. Highly realistic animal figurines, designed to be faithful reproductions of actual animals, were found to potentially lack the high degree of artistic individuality required for copyright protection as applied art, especially considering they were mass-produced and inexpensive. In contrast, more fanciful figurines from the same series, depicting "yokai" (traditional Japanese monsters), were deemed to possess sufficient originality and artistic expression to qualify for copyright. Other cases, such as the Supreme Court's judgment on March 28, 1991 (often referred to as the Nietzsche Chair case), denied copyright protection for an elegantly designed chair, emphasizing its primarily utilitarian nature and the inseparability of its aesthetic and functional aspects.

Under this traditional approach, many mass-produced toy figurines, especially those aiming for realism, might struggle to obtain copyright protection unless they exhibit a significant degree of artistic interpretation, stylization, or originality that elevates them beyond mere representation or functional design.

A Potential Shift: The TRIPP TRAPP Chair Case

More recently, a landmark decision by a Grand Panel of the Intellectual Property High Court on April 14, 2015, concerning the copyrightability of the iconic TRIPP TRAPP high chair, signaled a potential departure from the stricter, two-tiered approach. The IP High Court suggested that the standard for creativity for works of applied art should fundamentally be the same as for other types of copyrighted works: whether the work is an expression of the author's personality and individuality.

The court in TRIPP TRAPP questioned the necessity of imposing a higher aesthetic bar or a strict separability test for applied art. It reasoned that:

  • Copyright and design law can coexist, as they serve different purposes and protect different aspects of a creation.
  • The inherent utilitarian constraints often present in applied art naturally tend to limit the scope of any copyright protection granted, thereby reducing concerns about creating overly broad monopolies that could stifle further design innovation.
  • The term "artistic" in the definition of a work should not be interpreted so narrowly as to exclude most industrially produced items if they otherwise embody a creative expression.

If the TRIPP TRAPP approach becomes more widely adopted, it could lower the threshold for copyright protection for applied art, including toy figurines. The focus would shift from assessing "high art" qualities to determining whether the figurine's design reflects the unique creative choices and personality of its designer, even if it is realistic or mass-produced.

However, it's important to note that the legal landscape for applied art in Japan is still evolving. Some subsequent lower court decisions have continued to reference the older, more demanding standards. Therefore, assessing the copyrightability of any specific figurine as applied art requires careful consideration of its design characteristics against this developing jurisprudential background.

Once a figurine exists, photographs are often taken for various purposes – by the manufacturer for catalogs, by collectors to showcase their collections, or by fans. These photographs themselves can potentially be subject to copyright, separate from any copyright in the figurine itself.

Article 10(1)(viii) of the Japanese Copyright Act lists photographs as an example of a copyrightable work. However, not every photograph automatically qualifies. As with any work, a photograph must embody a "creative expression" to be protected.

  • Sources of Creativity in Photography: Creativity can be found in the photographer's choices regarding:
    • Composition and Framing: How the subject is arranged within the shot.
    • Angle and Perspective: The viewpoint from which the photo is taken.
    • Lighting: The use of natural or artificial light to create mood and highlight features.
    • Technical Settings: Choices related to shutter speed, aperture, lens type, depth of field, etc.
    • Timing: Capturing a particular moment.
    • Post-Processing (Digital or Darkroom): Creative enhancements made after the initial shot.
  • Photographs of 3D Objects vs. 2D Objects: Photographing a three-dimensional object like a figurine generally offers more scope for creative input (in terms of angle, lighting, background, etc.) compared to making a purely reproductive, "flat copy" photograph of a two-dimensional item like a document or another photograph. A photograph that is merely a slavish, mechanical copy of a pre-existing 2D work might lack sufficient originality to warrant its own copyright, or its copyright would be very "thin," protecting only against exact duplication of the photographic elements themselves.
  • Effort vs. Creativity: Mere technical skill or effort ("sweat of the brow") in producing a clear photograph is not sufficient for copyright if creative choices are absent. The photograph must reflect the photographer's personality or unique vision.

Implications for Figurine Photography:

  • Manufacturer's Catalog Photos: If a manufacturer takes very straightforward, neutral-background product shots of their figurines solely for identification and cataloging, these photos might have minimal or "thin" copyright protection. Their primary purpose is depiction, not necessarily artistic photographic expression.
  • Collector's Artistic Photos: Conversely, if a collector takes photos of their figurines, perhaps arranging them into imaginative scenes, using dramatic lighting, unique angles, or creative compositions, these photographs are much more likely to be considered original copyrighted works in their own right.
  • Infringement:
    • If a collector (Person A) takes a creative photograph of a figurine, another person (Person B) who copies Person A's photograph (e.g., by scanning it or downloading it from A's website) would be infringing Person A's copyright in the photograph.
    • However, if Person B, inspired by Person A's photo, takes their own entirely new photograph of the same figurine (even if mimicking the pose or style), this would not infringe Person A's copyright in their photograph, as Person B has not reproduced A's specific photographic expression.
    • It is crucial to remember, though, that if the figurine itself is protected by copyright (as discussed under applied art), then any unauthorized photograph of that figurine (whether creative or not) could potentially be an infringement (a reproduction) of the copyright in the underlying figurine, regardless of who took the photo.

Manufacturers and collectors often organize photos and information about figurines into catalogs, websites, or databases. Such compilations or databases can also qualify for their own copyright protection in Japan.

Under Article 12 of the Copyright Act (for general compilations) and Article 12-2 (for databases, which are defined as a collection of information systematically constructed so as to be searchable by computer), protection is granted if there is creativity in the:

  • Selection of the materials/information included.
  • Arrangement of those materials (for general compilations).
  • Systematic construction of the information (for databases, focusing on the structure that enables searchability, such as classification schemes, indexing, and ensuring consistency).

Key Points for Compilation/Database Copyright:

  • Protection for Structure, Not Necessarily Content: The copyright protects the creative effort in choosing and organizing the content, not necessarily the individual items of content themselves (which may or may not be independently copyrighted). For instance, a database of purely factual, uncopyrightable information can still be a copyrighted database if its selection or systematic construction is creative.
  • Defining Creativity: Creativity here is not about novelty or non-obviousness in a patent sense. It requires more than just an exhaustive collection or a purely mechanical, standard arrangement (e.g., alphabetical or chronological order if that's the only logical way). For example, a Tokyo District Court judgment on May 25, 2001 (referred to as the Automobile Database Case) found that a database containing comprehensive vehicle registration data arranged simply by date lacked the requisite creativity in selection or arrangement to qualify for copyright protection as a compilation.
  • Application to Figurine Databases:
    • A manufacturer's online catalog of its figurines, if it simply lists all products chronologically or by product code without any unique thematic selection or innovative arrangement, might lack database copyright.
    • However, if a collector creates a website showcasing their figurine collection, and they employ a unique and original system of classification (e.g., categorizing figurines by artistic style, historical influence, or a self-devised thematic grouping, rather than just by manufacturer series) and presents this information in a creatively structured way, this database could well be protected by copyright.

Infringement of Compilation/Database Copyright:
Infringement of a compilation or database copyright occurs when another party reproduces the creative selection or arrangement (or systematic construction) of the original work.

  • Taking a substantial part of the structure or the creative selection would be infringement.
  • Simply extracting individual data elements or a few uncreatively arranged photos from a copyrighted database and then re-arranging them into a completely new and different structure would generally not infringe the database copyright of the original (though it might infringe copyright in any individual creative photos extracted, as discussed earlier).

It's important to note that Japanese copyright law does not have a sui generis database right similar to that found in the European Union, which can protect the substantial investment in creating a database even if the database itself lacks creative selection or arrangement. While substantial unauthorized extraction and use of data from a non-copyrighted database might, in very specific and egregious circumstances, be actionable under unfair competition law or general tort principles (as seen in the Automobile Database Case, where tort liability was found despite no copyright), this is not a standard copyright protection for the database contents per se.

Protecting and respecting intellectual property in the realm of pop culture merchandise in Japan requires a multi-layered analysis:

  1. The Figurine/Item Itself: Its potential copyrightability as a work of applied art depends on its design originality and the evolving legal standards, particularly in light of decisions like TRIPP TRAPP. Design registration offers a separate, more traditional route for protecting the item's appearance.
  2. Photographs of the Item: Photographs can acquire their own copyright if they exhibit sufficient photographic creativity in their composition, lighting, and other expressive choices.
  3. Compilations and Databases: Collections of photos or information about these items can be copyrighted if their selection or arrangement (or systematic construction for databases) is creative.

Each layer must be assessed independently. A photograph of an uncopyrightable figurine can still be a copyrighted photograph. A database containing uncopyrightable photographs can still be a copyrighted database if its structure is creative.

Conclusion

The world of collectible figurines and related merchandise in Japan is vibrant, but it operates within a complex copyright framework. For creators, manufacturers, collectors, and platform operators, understanding the nuanced rules for applied art, photographs, and compilations/databases is essential. While Japanese law provides avenues for protection at each level, the requirements for creativity and the evolving judicial interpretations mean that careful consideration and often legal advice are necessary to navigate this landscape effectively. The distinction between copyright in an object, copyright in a depiction of that object, and copyright in a collection of those depictions is a critical one to grasp.