How Does Japanese Copyright Law Determine "Creativity" in Photographs?

Japanese Attorney at Law - Bengoshi L.L.

• 6 min read

In an age where billions of photographs are taken and shared daily, understanding when a photograph qualifies for copyright protection is more critical than ever. Under Japanese copyright law, a photograph, like any other potential work, must embody a "creative expression of thoughts or sentiments" to be protected. But what exactly constitutes "creativity" in the context of capturing an image? This article explores the nuanced approach Japanese law takes to determine the copyrightability of photographs.

The Foundation: Creative Expression Required

The Japanese Copyright Act (著作権法 - Chosakukenhō) defines a "work" (著作物 - chosakubutsu) in Article 2, Paragraph 1, Item 1 as "a work in which thoughts or sentiments are expressed in a creative way and which falls within the literary, academic, artistic or musical domain." For a photograph to be copyrighted, it must meet this standard, particularly the element of being "expressed in a creative way" (創作的に表現したもの - sōsaku-teki ni hyōgen shita mono).

This means that a purely mechanical reproduction, devoid of the photographer's individual input, will not qualify. For example, simply photocopying a painting or taking a flat, direct photograph of a 2D artwork for the sole purpose of exact reproduction is generally considered an act of reproduction (複製 - fukusei), not the creation of a new copyrighted photographic work. The Copyright Act itself lists "photography" as a method of reproduction (Article 2, Paragraph 1, Item 15).

Elements Considered in Assessing Photographic Creativity

Japanese courts and legal scholarship have identified several factors that can contribute to the "creativity" of a photograph, demonstrating the photographer's thoughts or sentiments in its expression.

1. Composition and Camera Angle

The way a photographer frames the subject, chooses the vantage point, and arranges elements within the shot are key indicators of creative input. The IP High Court, in the Tokyo Outsiders Case (May 31, 2007), recognized that even snapshots can possess creativity in their composition and the decisive moment of capture.

A notable illustration is the Hairstyle Photograph Case (Tokyo District Court, December 9, 2015). This case involved photographs in a beauty magazine featuring models with specific hairstyles, makeup, and poses. The court determined that the photographer, not the hairdresser or the model, was the author. The creativity was found in the photographer's choices regarding the combination and arrangement of subjects, composition, camera angle, lighting, shadows, and the selection or setting of the background. The photographer is only denied authorship if they act as a mere instrument, pressing the shutter under the complete direction of another.

2. Lighting, Shading (陰影 - in'ei), and Depth of Expression (奥行きの表現 - okuyuki no hyōgen)

The deliberate manipulation or selection of lighting to create specific moods, highlight textures, or produce desired shadows is a significant creative aspect. Similarly, the way a photographer conveys a sense of three-dimensionality and depth in a two-dimensional image involves creative choices. When photographing a three-dimensional object, such as a sculpture or a culinary dish, the process of translating it into a planar expression inherently involves decisions about representing shadows and depth, which can be vehicles for the photographer's thoughts and feelings.

3. The Decisive Moment: Shutter Chance (シャッターチャンス - shattā chansu)

Capturing a fleeting moment is often central to the art of photography. The choice of the precise instant to release the shutter—the "shutter chance"—is widely considered a vital expressive element, especially when the subject is in motion or the scene is dynamic. The Tokyo District Court in the Dolphin Photograph Case (March 26, 1999) acknowledged shutter chance as a factor contributing to a photograph's creativity. Some legal commentators argue that this is perhaps the most significant expressive element in photography, representing the photographer's decision on which singular instant, out of a continuum of unfolding events, to immortalize.

4. Subject Matter: Creation, Arrangement, and Pre-existing Scenes

The role of the subject matter in assessing photographic creativity is complex.

If the photographer creates, selects, combines, or arranges the subject matter itself, these actions can contribute to the photograph's overall creativity. The Tokyo High Court decision in the Watermelon Photograph Case (June 21, 2001) is an important precedent where the creative arrangement of the subject (watermelons) by the photographer was a key factor in recognizing the photograph's copyrightability. If an arrangement itself is creative (like an ikebana flower arrangement), it might constitute an independent (editorial) work, and the photograph of that arrangement would then be a separate work, deriving its own creativity from the photographic expression.

However, when photographing pre-existing scenes or objects (e.g., landscapes, existing buildings), the mere choice of subject or the shooting location is generally not considered a creative element attributable to the photograph's copyright. The IP High Court, in the Ruins Photograph Case (May 10, 2011), denied infringement claims for photographs of an existing ruined structure taken from a similar location as the plaintiff's photograph, noting that the plaintiff had not arranged or added to the subject.

This distinction is important. While an artist painting a landscape makes numerous creative choices in translating that scene onto canvas, a photographer capturing the same pre-existing scene must demonstrate creativity through photographic means (composition, light, timing, etc.). The underlying copyright in a photograph should stem from its photographic expression, not merely from the inherent interest or pre-existing creative arrangement of its subject if that subject was not arranged by the photographer for the purpose of the photograph. Copying the arrangement of a scene depicted in a photograph to create a new photograph of a similar, re-staged scene would generally not infringe the copyright in the original photograph, because the original photograph's copyright protects its specific visual depiction, not the abstract arrangement of elements in the scene itself (unless that arrangement was the photographer's original creation for the photo).

Technological Influence and Authorship

The evolution of camera technology does not negate the potential for creativity.

  • Autofocus Cameras: Even with advanced automation, the photographer still makes creative choices regarding composition, lighting, perspective, and timing.
  • Self-Timers: A photograph taken using a self-timer can be a creative work if the photographer has made conscious decisions about the setup, composition, and the moment of capture. Conversely, an image captured due to an accidental or unconscious activation of the shutter would lack the necessary creative input.
  • "Purikura" (Print Club) Photos: In the context of photo booths where users pose themselves and control the timing, the users (the subjects) are generally considered the authors of the resulting photographs, analogous to using a self-timer.

Not all photographs will exhibit a high degree of creativity. Given the mechanical aspects involved in photography, some photographs might only possess a minimal level of creativity. Such works are sometimes described as having "thin copyright."

The IP High Court case known as the SmellGet Case (March 29, 2006) dealt with this issue. The court recognized copyright in a photograph that had a low level of creativity but found infringement because the defendant had made a "dead copy" (an exact reproduction). While copyright protection was affirmed, the damages awarded were nominal (10,000 yen). This suggests that even a slight degree of originality stemming from the photographer's personal choices can be sufficient for a photograph to be considered a copyrighted work, but the scope of protection afforded to such thinly copyrighted photographs will likely be narrow, primarily guarding against direct and identical copying.

Practical Challenges: Snapshots

While snapshots can certainly be creative, as seen in the Tokyo Outsiders Case, they can present practical difficulties. It's often challenging to identify the photographer of a snapshot, and therefore the copyright holder, which complicates obtaining permission for uses such as publication or commercial exploitation.

Photographing Other Works

  • Photographing 2D Works: As mentioned, photographing a 2D work like a painting or another photograph is typically an act of reproduction. To create a new, independently copyrightable photograph of a 2D work, the photographer would need to introduce significant new creative elements in the photographic process itself (e.g., unique lighting, angle, or interpretation that transforms the depiction beyond a faithful copy).
  • Using Photographs as Source Material: If a photograph (e.g., of a landscape) is used as source material for creating a work in a different medium, like a painting, the new work can be independently copyrightable or a derivative work. The act of painting involves numerous creative choices (brushwork, color selection, interpretation of light and shadow) that can imbue the painting with its own originality, distinct from the photographic expression of the source. This differs from merely photographing a painting because the painting process inherently involves a greater degree of creative transformation than the more mechanical aspects of photographing a flat object.

Conclusion

Japanese copyright law provides protection for photographs that are the result of a photographer's creative choices in expression. This creativity can manifest in various ways, including composition, camera angle, lighting, the rendering of depth, and the critical timing of the shutter release. While the mere selection of a pre-existing subject or location is generally not, in itself, a basis for photographic copyright, the photographer's active arrangement of a subject or their unique way of capturing any subject through photographic techniques can lead to a protectable work. Even photographs with a minimal degree of creativity may receive "thin copyright," offering protection primarily against exact duplication. As photographic technology continues to evolve, the focus remains on the human intellectual and aesthetic input that transforms a mere recording of reality into a creative expression.