Intellectual Property Law

Is a Screenshot Illegal? — How Japan’s Quotation Exception Applies to Social-Media Posts

Japanese Attorney at Law - Bengoshi L.L.

• 11 min read
Close-up of a hand taking a smartphone screenshot of a social-media post, with a © copyright symbol overlay

TL;DR
Even a 140-character tweet can be protected by Japanese copyright law. Reposting a screenshot counts as reproduction + public transmission and is infringing unless it qualifies as a “quotation” under Art. 32. Courts are split over whether screenshots satisfy the requirements (subordinate use, necessity, fair practice). Safest path: use official embed tools; if you must screenshot, keep it minimal, clearly attribute, and make sure your own commentary is the main content.

Table of Contents

  • Introduction: Screenshot culture & legal risk
    1. Are short social-media posts copyrightable?
    1. The quotation exception explained (Art. 32)
    1. Case-law split: infringement vs. lawful quotation
    1. Technical & legal gap: screenshot vs. embed
    1. Compliance checklist for businesses
  • Conclusion: Managing risk in an uncertain landscape

In today's hyper-connected world, sharing content from social media platforms like X (formerly Twitter), Instagram, or Facebook is second nature. A quick screenshot is often the easiest way to capture and share a specific post – perhaps to critique it, report on it, use it as an example, or simply archive it. While seemingly innocuous and widely practiced, taking and republishing screenshots of social media posts raises significant copyright questions under Japanese law.

Unlike simply retweeting or using a platform's built-in "share" or "embed" functions, creating a screenshot involves making a direct copy (reproduction) of potentially copyrighted material. Subsequently posting that screenshot online involves public transmission. Both reproduction and public transmission are exclusive rights granted to copyright holders under the Japanese Copyright Act (著作権法 - Chosakuken Hō). Therefore, without permission or a valid legal exception, screenshotting and republishing someone else's social media post can constitute copyright infringement in Japan.

Recent Japanese court decisions have grappled with this issue, particularly focusing on whether using screenshots falls under the copyright exception for "quotation" (引用 - in'yō) provided in Article 32 of the Act. The outcomes have been inconsistent, creating uncertainty for users, including businesses that might use social media content for market analysis, reporting, or competitive intelligence. This article explores the copyrightability of short social media posts, the requirements of the quotation exception in Japan, and how courts have applied these principles to the act of screenshotting, offering practical considerations for navigating this complex area.

Are Short Social Media Posts Copyrightable in Japan?

Before considering exceptions, the first question is whether a typical social media post, often characterized by brevity, even qualifies for copyright protection. Japanese copyright law protects "works" defined 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" (Article 2(1)(i)). Registration is not required; protection arises automatically upon creation.

The key requirement is "creative expression." This means that extremely short phrases, common greetings, simple statements of fact, or ideas themselves are generally not protected. Applying this to social media:

  • Simple Factual Statements: A tweet merely stating a factual event ("Meeting rescheduled to 3 PM") likely lacks the necessary creativity.
  • Common Phrases: Very short, commonplace expressions ("Thanks!", "Great weather today!") are unlikely to be considered copyrightable works.
  • Longer, Expressive Posts: Posts involving original analysis, commentary, poetry, narrative, or even uniquely structured short statements that reflect the author's personality and creative choices are more likely to meet the threshold for copyrightability. The length itself is not decisive, but rather the presence of creative expression.
  • Case Law Example: A Tokyo District Court decision on December 14, 2022 (Case No. Reiwa 4 (Wa) 8410) illustrated this distinction. In the context of a request for sender information disclosure based on alleged copyright infringement via screenshot, the court examined several pieces of text. It found that short captions inserted into a YouTube video, describing interactions with government officials or summarizing the video's purpose, were "extremely short and contained commonplace expressions," thus lacking the creativity required for copyright protection. However, the court did find that a 140-character tweet by the same plaintiff, which summarized information and expressed personal thoughts gathered through activities aimed at protecting drivers' safety, involved creative choices in expression within the character limit and was protectable as a literary work. Other cases have similarly recognized the copyrightability of specific tweets.

Therefore, one cannot assume that social media posts are automatically unprotected due to their length. If a post exhibits sufficient creative expression, it likely qualifies as a copyrighted work, and unauthorized reproduction (like screenshotting) requires justification under an exception.

The Quotation Exception (Article 32) in Japanese Copyright Law

The most relevant exception for using screenshots is Article 32(1), the provision for quotation. It states: "It shall be permissible to quote from and thereby exploit a work that has already been made public, provided that such quotation is compatible with fair practice and its extent does not exceed that justified by the purpose of the quotation, such as news reporting, criticism, or research."

Japanese courts and commentators generally break down the requirements for a valid quotation under Article 32(1) into several conditions:

  1. Published Work: The work being quoted must have already been made public (公表された著作物 - kōhyō sareta chosakubutsu). Social media posts accessible to the public generally satisfy this.
  2. "Quotation" (引用 - In'yō): This involves several sub-elements:
    • Incorporation: The quoted material must be incorporated into the user's own work.
    • Clear Distinction (明瞭区別性 - meiryō kubetsusei): The quoted portion must be clearly distinguishable from the user's own content (e.g., using quotation marks, indentation, different formatting, or clear visual separation like embedding a screenshot within surrounding text).
    • Main/Subordinate Relationship (主従関係 - shūjū kankei): The user's own work must be the principal element, and the quoted material must be subordinate or ancillary to it, both quantitatively and qualitatively. The quotation should serve to support, illustrate, or critique the user's primary expression.
  3. Compatibility with Fair Practice (公正な慣行に合致すること - kōsei na kankō ni gatchi suru koto): The manner of quotation must align with what is considered fair and customary in the relevant field or context. This is a flexible standard.
  4. Justified Scope (目的上正当な範囲内 - mokuteki jō seitō na han'i nai): The extent of the quotation (amount and significance) must be no more than necessary for the legitimate purpose of the quotation (e.g., criticism, research, news reporting, illustration). Necessity is key.
  5. Indication of Source (出所の明示 - shussho no meiji): The source of the quoted work must be clearly indicated, as far as practicable given the manner of use (Article 48). For social media, this typically means including the author's username/handle and the platform.

Failure to meet all these conditions means the use is not justified as a quotation and likely constitutes infringement if the underlying post is copyrightable.

Applying Article 32 to Screenshots: A Divided Judicial Landscape

The core difficulty lies in applying these general quotation requirements to the specific act of taking a screenshot of a social media post and republishing it, often accompanied by commentary. Recent court decisions reveal conflicting interpretations, primarily revolving around the "fair practice" and "justified scope/subordination" requirements.

Cases Finding Infringement (or Denying the Quotation Exception)

  • Tokyo District Court, December 14, 2022 (Reiwa 4 (Wa) 8410): As reviewed by Koizumi, this court found the tweet itself copyrightable but denied the quotation exception for the screenshot. Its reasoning focused on two points:
    • Lack of Subordination: The court found that the screenshot image visually dominated the user's accompanying commentary text, violating the main/subordinate relationship (shūjū kankei). The quoted part (the screenshot) was deemed the main element, not the user's commentary.
    • Lack of Necessity: The court questioned the necessity (mokuteki jō seitō na han'i nai) of using a full screenshot to critique the content of the original tweet. It suggested that quoting the relevant text directly might have been sufficient and less extensive, implying the screenshot method exceeded the scope justified by the purpose of criticism.
  • Tokyo District Court, December 10, 2021 (Reiwa 3 (Wa) 15819): This earlier decision also denied the quotation exception for a screenshot tweet, partly on similar grounds of necessity and subordination. Critically, however, it also invoked the platform's Terms of Service (ToS). The court noted that using a screenshot instead of the platform's provided functions (like retweeting) potentially violated the ToS, and concluded this meant the use was not compatible with "fair practice" (kōsei na kankō). This ruling suggested that violating platform ToS could automatically preclude a finding of fair practice under copyright law.

These cases highlight a stricter interpretation, emphasizing the quantitative/qualitative dominance of the screenshot and questioning the necessity of the visual copy when textual critique is the goal. The 2021 case also introduced the ToS compliance as a potential element of "fair practice."

Cases Permitting Screenshots (or Finding Quotation Plausible)

Conversely, other recent decisions, including some from the IP High Court (which handles appeals from the Tokyo District Court in IP-related matters), have taken a more permissive view:

  • Tokyo District Court, September 15, 2022 (Reiwa 4 (Wa) 14375): This decision reportedly found that using a screenshot could fall under the quotation exception. It reasoned that screenshotting was a common method used by many internet users to accurately represent the content being discussed or criticized, suggesting it could align with "fair practice" and be within a scope justified by necessity for accurate critique.
  • IP High Court, November 2, 2022 (Reiwa 4 (Ne) 10044): On appeal in a different case, the IP High Court suggested that using a screenshot could indeed be considered a quotation. It noted that presenting the criticized tweet unaltered via a screenshot ensures objectivity and aids readers in assessing the validity of the critique, thus potentially falling within the scope justified by the purpose. It also acknowledged image capture and sharing as a common method for information sharing online, potentially meeting the "fair practice" requirement.
  • IP High Court, December 26, 2022 (Reiwa 4 (Ne) 10083): In another appeal (potentially related to the Dec 10, 2021 District Court case, though this needs confirmation), the IP High Court again indicated that screenshotting could constitute fair practice under Article 32(1). While ultimately denying the sender information disclosure request on other grounds in that specific case, the court explicitly stated that the method of quoting via screenshot could potentially satisfy the fair practice requirement, seemingly pushing back against the idea that violating ToS automatically makes the practice unfair under copyright law. The court suggested that even if platform ToS are relevant, the prevalence of screenshotting as a means of sharing and critique on the internet means it can potentially be considered a "fair practice" in the copyright context. It also found that including the user's icon/profile picture within the screenshot, while perhaps not strictly necessary for identifying the source textually, could be acceptable as part of this common practice.

These cases suggest a counter-trend where courts, especially at the appellate level, are more willing to recognize screenshotting as a potentially legitimate method of quotation, emphasizing its utility for accuracy, context, and its prevalence as a common internet practice. They appear less inclined to let platform ToS dictate the outcome of the copyright "fair practice" analysis.

Key Factors in the Assessment

The divergence in these cases highlights the key factors courts are wrestling with when applying Article 32 to screenshots:

  1. Main/Subordinate Relationship (主従関係): How dominant is the screenshot visually and substantively compared to the user's own commentary or analysis? If the screenshot overwhelms the user's original contribution, the exception is less likely to apply. Presentation matters – integrating the screenshot clearly within a larger body of original text is likely better than simply posting a screenshot with a minimal caption.
  2. Necessity and Justified Scope (目的上正当な範囲内): Is using a full visual screenshot truly necessary for the stated purpose (e.g., criticism, reporting)? Could the purpose be achieved less intrusively, perhaps by quoting only the relevant text? Courts seem divided on whether preserving the visual context and ensuring accuracy inherently justifies the screenshot method, especially for critique.
  3. Fair Practice (公正な慣行): Is screenshotting considered a fair and customary practice in the online environment? Here, the relevance of platform ToS is debated. While some district courts have linked ToS violations to unfair practice, higher court dicta suggests that widespread actual practice on the internet might still qualify as "fair" under copyright law, even if technically violating platform rules designed primarily to encourage use of native platform features.

It's crucial to distinguish screenshotting from embedding. Most social media platforms offer official "embed" codes or functions that allow users to display a post directly on another webpage.

  • Technical Difference: Embedding typically works by linking to the content hosted on the original platform's servers. The embedded content is displayed on the third-party site, but it's not usually copied onto that site's servers. A screenshot, conversely, creates a new digital copy of the post stored on the user's device and potentially uploaded to a different server when shared.
  • Legal Implications: This technical difference likely has significant legal implications under Japanese copyright law.
    • Reproduction: Screenshotting clearly involves making a reproduction (複製 - fukusei), triggering the copyright holder's exclusive right under Article 21.
    • Public Transmission: Posting the screenshot online involves public transmission (公衆送信 - kōshū sōshin), triggering rights under Article 23.
    • Embedding: The legal status of embedding is less settled globally, but a strong argument exists that simply embedding content using the platform's provided tools might not constitute a new act of reproduction or public transmission by the embedder, as the content is served from the original source. Furthermore, users posting content on platforms like X generally grant the platform broad licenses, arguably including the right to sublicense embedding functionalities. Thus, using the official embed feature is generally considered much lower risk than screenshotting. (However, platform positions can evolve; Instagram reportedly cautioned that even embedding could infringe if the original post was unlicensed, highlighting the need to consider the legitimacy of the source content).

Given the clear act of reproduction involved in screenshotting, relying on the Article 32 quotation exception becomes necessary, leading to the uncertainties discussed above. Embedding, when available and technically suitable, generally presents a safer legal alternative for incorporating social media content.

Practical Guidance for Businesses

Given the current legal uncertainty in Japan surrounding screenshots and Article 32, businesses wishing to reference or use third-party social media content should adopt a cautious and risk-aware approach:

  1. Assess Copyrightability: Is the post likely creative enough to be a copyrighted work? If it's purely factual or a very common phrase, the risk is minimal. If it contains original expression, proceed with caution.
  2. Prefer Embedding: Whenever technically possible and appropriate for the purpose, use the platform's official embedding features rather than taking screenshots. This significantly reduces the copyright risk related to reproduction and public transmission by the user.
  3. Evaluate Purpose and Necessity (if Screenshotting): If screenshotting is deemed necessary (e.g., embedding isn't possible, or the visual context of the original platform interface is essential for critique or reporting):
    • Ensure the screenshot is clearly subordinate to original commentary, analysis, or reporting. Avoid making the screenshot the dominant feature.
    • Use only the portion of the screenshot necessary for the purpose. Cropping irrelevant parts might strengthen the argument for justified scope.
    • Clearly attribute the source (username/handle, platform).
  4. Consider "Fair Practice": While the legal weight of ToS is debated, being aware of platform rules is prudent. Also, consider the context – is screenshotting common and accepted for this type of commentary in the relevant online community?
  5. Text Quotation as Alternative: If the primary goal is to comment on the text of a post, consider directly quoting the text (with clear attribution) instead of using a screenshot. This often fits more easily within the traditional understanding of quotation.
  6. Seek Permission for Commercial Reuse: If the purpose extends beyond critique, reporting, or research into more direct commercial reuse (e.g., using a positive customer tweet in marketing materials), relying on the quotation exception is highly risky. Seeking explicit permission from the original poster is the safest course.
  7. Risk Assessment: Ultimately, using screenshots without permission involves a degree of legal risk in Japan due to the conflicting court interpretations. Businesses should weigh the necessity and benefit of using the screenshot against the potential risk of an infringement claim.

Conclusion: Navigating Uncertainty with Caution

The practice of screenshotting and sharing social media posts sits in a legally ambiguous zone under Japanese copyright law. While tweets and other posts can certainly be copyrightable if they contain creative expression, the applicability of the Article 32 quotation exception to screenshots remains unsettled. Recent court decisions have diverged, particularly on whether screenshotting constitutes a "fair practice" and falls within a "justified scope," with some courts emphasizing strict adherence to the traditional requirements of subordination and necessity, while others show more willingness to accept screenshotting as a common and potentially legitimate method for accurate critique and reporting in the digital realm.

Until clearer guidance emerges from higher courts or legislative clarification, businesses operating in Japan should exercise caution. Favoring platform-provided embedding tools over screenshots is generally the lower-risk approach. If screenshots are used, careful consideration must be given to ensuring they are genuinely subordinate to original commentary, limited to the necessary extent, properly attributed, and arguably fit within "fair practice." For significant commercial uses, seeking permission remains the most reliable way to avoid potential copyright disputes. Navigating this requires ongoing attention to legal developments and a careful assessment of risk based on the specific context and purpose of the use.