Copyright in Photographs in Japan: What Makes a Photo Creative and How is Similarity to Other Photos or Derived Works Assessed?

Japanese Attorney at Law - Bengoshi L.L.

• 10 min read

Photographs, despite being captured with the aid of a mechanical device, are a well-established category of copyrighted works under Japanese law. The Copyright Act protects them as long as they meet the general requirement of being "productions in which thoughts or sentiments are expressed in a creative way." However, the specific nature of photography—capturing reality through a lens—gives rise to unique considerations when assessing creativity (sōsaku-sei) and determining similarity for the purpose of infringement. This includes how courts treat comparisons between two photographs, as well as between a photograph and a work derived from it, such as an illustration or painting.

Finding Creative Expression in Photography

While a camera records an image, the photographer makes numerous choices that can imbue the resulting photograph with creative expression. These choices manifest the photographer's personality and artistic vision. Key elements contributing to a photograph's creativity in Japan include:

  1. Choice of Subject: Selecting what to photograph, from an infinite array of possibilities.
  2. Composition and Framing: The arrangement of elements within the photographic frame, including the viewpoint, angle, and perspective chosen.
  3. Lighting and Shading: The skillful use of natural or artificial light to create mood, highlight textures, and define forms through shadows and highlights.
  4. Lens Choice: The selection of lenses (wide-angle, telephoto, macro, etc.) significantly affects the visual outcome, including perspective, depth of field, and potential distortions.
  5. Exposure Settings (Shutter Speed and Aperture): These technical choices control the amount of light, influencing brightness, motion blur (for moving subjects), and the depth of field (how much of the scene is in focus).
  6. Timing (The "Decisive Moment"): For dynamic subjects—people, animals, sports, or fleeting events—the photographer's ability to capture a specific, expressive, or significant instant is a critical creative element.
  7. Arrangement of Subject Matter (for non-natural scenes): In studio photography, still life, or portraiture, the photographer often directly arranges or poses the subject matter, which is a clear exercise of creative choice.
  8. Post-Processing Techniques: Traditional darkroom manipulations or modern digital editing can also contribute to the final creative expression of a photograph, although extensive alterations to another's photograph can also raise issues of derivative works or infringement of moral rights.

It's important to distinguish based on the nature of what is photographed:

  • Photographs of Flat, Two-Dimensional Works: A purely mechanical, frontal reproduction of a 2D artwork (like a painting) made solely for documentary purposes is generally considered to lack the necessary creativity to qualify for its own copyright in Japan (e.g., the Hanga Geijutsu (Print Art) case, Tokyo District Court, November 30, 1998). The creativity resides in the original 2D artwork, not in its slavish photographic copy.
  • Photographs of Three-Dimensional Objects or Scenes: Conversely, photographs of 3D subjects—be it landscapes, portraits, still lifes, or architectural structures—are almost invariably found to possess sufficient creativity to be copyrightable. The act of translating a three-dimensional reality into a two-dimensional image inherently involves numerous creative choices regarding perspective, composition, lighting, and timing. This generally holds true even for seemingly casual snapshots, although the level of creativity (and thus the breadth of protection) may be deemed low.

Assessing Similarity Involving Photographic Works

The standard Japanese test for copyright similarity—whether "a person who comes into contact with it" can "directly perceive the essential expressive features" of the original copyrighted work within the allegedly infringing work—applies to photographs as well. The crucial focus is on the commonality in the creative photographic expressions, not merely on the fact that both photographs depict the same underlying subject matter.

1. Similarity Between Two Photographs

Comparing one photograph to another presents distinct challenges:

  • Same Subject, Different Photographers: If two photographers independently capture the same public scene or object (e.g., a famous landmark from a common viewpoint), their resulting images may bear a resemblance. However, copyright infringement is unlikely unless the second photographer has copied the specific, unique creative photographic choices of the first. Merely re-photographing the same subject, even from a similar vantage point using standard techniques, does not typically constitute infringement. The creativity lies in the specific rendering, not the subject itself.
  • The Haikyo Shashin (Ruins Photograph) case (Intellectual Property High Court, May 10, 2011) involved competing books of photographs depicting abandoned buildings ("ruins"). The court acknowledged that the subject matter (existing ruins) could not be the basis of the essential expressive features. Instead, such features would lie in "shooting season, shooting angle, color tone, angle of view, etc." While some photographs by the plaintiff and defendant shared similar compositions when depicting the same ruin, the court denied similarity due to significant differences in aspects like the season (affecting vegetation and light), the resultant color palette, and the overall aesthetic impression conveyed. This suggests that for photographs of existing static subjects, substantial differences in these photographic elements can negate a finding of similarity even if the basic composition is alike.
  • Product Photography and Low Creativity: Several cases involving product photography for catalogs or advertisements have resulted in findings of no similarity, often because the courts deemed the creative scope for such photographs to be very narrow, or because the specific products depicted were different:
    • In the Curtain Shohin Katarogu (Curtain Product Catalog) case (Tokyo District Court, March 28, 1995), photographs depicted different brands of curtain hooks, albeit arranged in a similar conceptual way (like musical notes). The court found no infringement, emphasizing that the subjects themselves (the specific hooks) were different.
    • Similarly, in the New Dinner Pan case (Osaka High Court, February 13, 1998), advertisements for competing frying pans featured photographs of similar types of food being cooked. Again, infringement was denied because the specific pans and food items in the photographs were different, meaning they were distinct photographic subjects, even if the idea for the advertisement shots was similar. The court stated that copyright in a photograph protects the specific image captured, not an abstract method of photographing similar subjects.
    • More recently, in the Harima Kisui Pakkēji Dezain (Harima Kisui Package Design) case (Osaka High Court, January 21, 2021), concerning photographs of arranged food products for packaging, similarity was denied for one set of photos. While acknowledging some commonalities in camera angle and lighting, the court found differences in shading and color balance sufficient to negate similarity. Controversially, the court also made a broad statement that "the choice and arrangement of the subject are not essential characteristic parts that form the basis of the creativity of a photograph," a proposition that is subject to debate, especially in light of cases like Mizumizushii Suika (discussed below).
      These cases indicate that for functional product photography where faithful representation is key, the copyright protection afforded to the photograph is often "thin," and if a defendant photographs their own (albeit similar) products, even in a stylistically similar way, it may not infringe the copyright in the original photograph.

2. Similarity Between a Photograph and a Derived Work (e.g., Illustration, Painting)

A common scenario involves a photograph being used as a basis or reference for creating a work in a different medium, such as an illustration or a painting. Here, the question is whether the creative expressive features of the original photograph remain directly perceivable in the derived work:

  • The Kōhī o Nomu Dansei (Coffee-Drinking Man) case (Tokyo District Court, March 29, 2018) involved a stock photograph of a man drinking coffee that was used as a reference for an illustration in a self-published comic (dōjinshi). The court denied similarity. It found that although the general pose of the figure was similar, the transformation into a stylized illustration—with significant simplification of details, omission of the original background, and fundamental changes to color, lighting, and shadow rendering—meant that the photograph's overall "comprehensive expression" (including the interplay of light, color, and contrast) was no longer present in the illustration.
  • Conversely, the Gion Matsuri Shashin (Gion Festival Photograph) case (Tokyo District Court, March 13, 2008) saw a finding of infringement. An amateur photographer's picture of a dynamic Gion Festival scene (featuring Shinto priests, sacred palanquins (mikoshi), and a crowd) was used as the basis for a watercolor painting subsequently used in advertisements and posters. The court held that the painting, despite being in a different medium, retained the essential expressive features of the photograph. These included the specific composition, the arrangement and depiction of key figures and elements (the central priest, the surrounding palanquins and their bearers), and the "solemn atmosphere" that the photograph had successfully captured. The fact that the defendant had initially used the photograph directly and only commissioned the painting after the plaintiff objected (indicating "strong reliance") likely played a role in the court's finding.
  • Similarly, in the Maiko Shashin (Maiko Photograph) case (Osaka District Court, July 19, 2016), a photograph of a maiko (apprentice geisha) taken by the plaintiff (a Japanese-style painter) was used by the defendant (another painter in the same field) as a reference to create several Nihonga (Japanese-style paintings). The court affirmed infringement, finding that the paintings replicated the photograph's distinct composition, the maiko's specific pose, facial angle, and the detailed rendering of her attire to such an extent that the photograph's essential expressive features were directly perceivable in the paintings. The specific interpersonal context between the parties (who knew each other from maiko sketching/photo sessions) also formed part of the background.

These cases demonstrate that merely changing the medium from a photograph to an illustration or painting does not automatically shield against copyright infringement if the core creative expression of the photograph—its composition, specific depiction of the subject, the captured moment, or unique lighting—is substantially reproduced in the derived work.

3. The Creativity of Arranged Subject Matter: The Mizumizushii Suika Case

A particularly debated and influential area concerns photographs where the photographer has actively constructed or arranged the subject matter before taking the picture. The question is whether the creativity involved in this pre-photographic arrangement can be considered part of the copyrighted photograph itself.

The Mizumizushii Suika (Juicy Watermelon) case (Tokyo High Court, June 21, 2001, reversing a Tokyo District Court decision) is pivotal here. The plaintiff had meticulously created an elaborate still-life arrangement featuring watermelons (whole and sliced in a particular way, with leaves and vines, displayed on crushed ice, against a blue graduated background suggesting a summer sky) and then photographed this setup. The defendant produced a strikingly similar photograph by creating a very similar still-life arrangement and photographing it.

  • The District Court had initially denied infringement, reasoning that copyright in a photograph protects the photographic elements (lighting, angle, exposure, etc.), not the choice and arrangement of the subject matter itself. The subject arrangement, it argued, was either an unprotectable idea or, if creative, would constitute a separate (and in this case, un-copyrighted by the photographer as a distinct sculptural work) artistic work.
  • The Tokyo High Court, however, reversed this decision, finding copyright infringement. It held that when a photographer personally creates and arranges the subject matter for the express purpose of photographing it, the creative choices made in constructing that scene—the selection, combination, and specific placement of objects—are integral to the creative expression of the resulting photographic work. Since the defendant's photograph not only used similar photographic techniques but also replicated this unique, artificially constructed subject matter, the High Court concluded that it infringed the plaintiff's copyright in their photograph.

The Mizumizushii Suika ruling suggests that for photographs of deliberately and artistically constructed scenes, the "creativity of the subject" as designed by the photographer can indeed form a significant part of the photograph's protectable expression. This blurs, to some extent, the traditional distinction between the copyright in a "photograph" (as a recording of a scene) and the copyright in an "artistic arrangement" or "still-life sculpture" that happens to be the subject of the photograph. This High Court precedent has been influential but continues to be a topic of academic discussion regarding the precise conceptual boundaries of a "photographic work."

While photographs of three-dimensional subjects are generally considered copyrightable, some more recent lower court decisions have controversially denied copyrightability altogether for certain types of photographs, even those depicting 3D objects or scenes. These denials often occur when the court perceives the photographer's creative choices to have been severely constrained by the practical purpose of the photograph or by external instructions, leading to a conclusion that the photographer's individual personality was not sufficiently expressed.

  • In the Kubota Itchiku Bijutsukan (Kubota Itchiku Art Museum) case (Tokyo District Court, June 19, 2018), photographs documenting the intricate creation process of "Itchiku Tsujigahana" kimono dyeing (which included images of artisans at work) and photographs depicting the museum building itself were denied copyrightability. The court reasoned that the primary purpose of these photographs was faithful and objective documentation. As such, it concluded that aspects like choice of subject, composition, and lighting were so constrained by this documentary purpose that "anyone would photograph them similarly," leaving little room for the photographer's individual creative expression. This ruling has been criticized by some commentators as applying an overly strict standard, especially for photographs involving human subjects in dynamic action.
  • Similarly, in the Megane Saron Tominaga (Glasses Salon Tominaga) case (Intellectual Property High Court, June 23, 2016, affirming a district court decision), photographs of eyeglasses taken for a sales flyer were denied copyright protection. The court found that the photographer's choices regarding subject (specific glasses), angles (mostly standard product shots), lighting, and background were heavily dictated by the client's instructions and the overriding need to faithfully and clearly represent the product's shape and color for advertising purposes. It concluded that the photographer had not exercised "unique ingenuity" and that the photographs were essentially created to fulfill a functional brief, thus lacking the requisite creative expression. The fact that the photographer was a professional commissioned for a specific practical and commercial purpose appeared to be a significant factor.

These recent decisions suggest a potential judicial trend towards a more stringent scrutiny of creativity for photographs perceived as primarily "functional" or purely "documentary," even when they depict three-dimensional subjects. This may indicate an ongoing effort by courts to carefully delineate the boundaries of photographic copyright, ensuring that protection is not extended to images where the scope for genuine authorial expression is deemed minimal due to the purpose or constraints of the photographic task.

Copyright protection for photographs in Japan is a dynamic area, reflecting the medium's dual nature as both an artistic form of expression and a tool for documentation and communication. Creativity in photography is recognized in the myriad choices a photographer makes, from selecting and composing the subject to manipulating light and capturing a decisive moment.

While basic principles hold—such as the general lack of copyright for purely reproductive photos of 2D works and the general copyrightability of photos of 3D subjects—the assessment of similarity and even initial copyrightability can be highly fact-specific. For photographs of existing scenes or standard product shots where the photographer's creative input is minimal, copyright protection is "thin," and only very close reproductions will infringe. However, when a photograph embodies significant creative choices in composition, lighting, timing, or, as highlighted by the Mizumizushii Suika case, in the artistic construction of the subject matter itself, its protection can be robust, even against works created in different mediums if they substantially reproduce that core creative expression. Recent cases denying copyright to certain "functional" photographs suggest that courts are continuing to refine the boundaries, sometimes leading to outcomes that spark further legal debate.