Protecting Characters in Japan: Copyright, Unfair Competition, or Other Means?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

Characters—from beloved manga heroes and anime icons to brand mascots and literary figures—are often immensely valuable intellectual creations. They can form the basis of extensive merchandising, licensing, and derivative works. However, securing comprehensive legal protection for these characters in Japan is not always straightforward and typically requires a multi-layered approach, as copyright law alone has specific limitations regarding what aspect of a "character" it protects.

Before diving into the legal framework, it's helpful to clarify what "character" means in this context. Generally, characters can be categorized:

  1. Visually Depicted Characters (e.g., "Fanciful Characters"): These are characters primarily known through their visual appearance in media like manga (comics), anime (animation), video games, or as standalone designs. Examples include iconic figures from long-running series or original designs created for products.
  2. Literary Characters (e.g., "Fictional Characters"): These are characters primarily developed through textual descriptions in novels, plays, or other literary works. Their visual appearance is often left to the reader's imagination, though they possess distinct personalities and narrative roles.

While both types are important, Japanese legal discussions, particularly concerning copyright, have often centered on visually depicted characters due to the nature of the disputes that have reached the courts.

The cornerstone of understanding copyright protection for characters in Japan is the Supreme Court's decision in the Popeye Tie Case (July 17, 1997). This landmark ruling clarified several key points:

  • No Copyright in the Abstract "Character": The Supreme Court held that a "character," when defined as an abstract concept—such as the personality, traits, or underlying idea of a figure derived from various specific expressions—is not itself a copyrighted work. Copyright protects the concrete expression of thoughts or sentiments, not disembodied ideas or abstract concepts. An artistic style is similarly not protected by copyright.
  • Copyright Exists in Specific Expressions: While the abstract character is not copyrightable, each individual drawing, manga frame, illustration, or other specific visual depiction of that character can be an independent artistic work protected by copyright, provided it meets the general requirements of creative expression.

Therefore, under Japanese copyright law, one cannot claim copyright in "Popeye" as a general persona. Instead, copyright subsists in the individual drawings of Popeye that appear in specific comic strips or animations. Infringement occurs when one of these specific copyrighted expressions (or a substantially similar adaptation thereof) is reproduced or otherwise exploited without authorization.

Scope of Protection for Visual Characters

Even though the abstract character lacks copyright, the protection afforded to its specific visual expressions can effectively provide a degree of protection for the character's recognizable visual identity:

  • Successive Depictions and Established Identity: For characters that appear in a series (e.g., a long-running manga or anime), successive depictions, while potentially evolving, build up a consistent and recognizable set of visual features. An unauthorized new drawing that incorporates these core, established visual features can be deemed an infringing reproduction or adaptation of the earlier copyrighted depictions from which those features are derived. The scope of what might be considered a "substantially similar" adaptation can be broader for such well-developed characters because a clear visual identity has been established over time. For example, the visual appearance of a character like Sazae-san has changed from her early depictions to later ones, yet different versions remain recognizable as adaptations due to an evolving but consistent visual identity, often supported by an accompanying narrative.
  • Original Merchandising Characters: Characters created primarily as standalone designs for merchandising (e.g., Hello Kitty or Kero Kero Keroppi) are protected through the copyright in their original specific drawings. Subsequent variations would be treated as adaptations of these original designs. The IP High Court decision in the Kero Kero Keroppi Case (January 23, 2001) considered the scope of adaptation for a simply designed character, suggesting that while the expression as a whole was creative, the simplicity might influence the range of what is considered an infringing adaptation.
  • Identifying the "Original Work" in Infringement Cases: The Popeye Tie Supreme Court decision emphasized that a plaintiff claiming character copyright infringement must, in principle, identify the specific copyrighted depiction(s) that were allegedly copied or adapted. This can be challenging for characters with a vast history of appearances. However, legal commentary suggests that if a character has consistently maintained essential visual features throughout a series, and these defining features are replicated in an allegedly infringing work, it might be sufficient to demonstrate reliance on this established visual identity (assuming the copyrights in those foundational depictions are valid and owned by the plaintiff), rather than requiring the pinpointing of one single, specific frame from potentially thousands. The earlier Tokyo District Court decision in the Sazae-san Case (May 26, 1976) was seen by some as taking a broader view, not strictly requiring the identification of a single source frame for finding infringement, when the character's overall visual representation was at issue.

Term of Protection Considerations

Since copyright protection for a character is tied to its specific tangible expressions, the duration of that protection follows the standard copyright term for those artistic works (generally, life of the author plus 70 years, or 70 years from publication for corporate works or works of unknown/pseudonymous authorship). For characters that evolve over a long series, later depictions might be considered secondary works of earlier ones. The Popeye Tie case touched upon the idea that if later depictions are merely maintaining the essential identity of the original character without adding significant new independent creativity, their protection might effectively be linked to the copyright term of the earliest public expressions of those defining features. This can become a complex analysis for characters with very long publication histories.

Given the limitations of copyright in protecting the abstract "character," creators and businesses in Japan typically rely on a combination of legal tools:

1. Unfair Competition Prevention Act (不正競争防止法 - Fusei Kyōsō Bōshi Hō)

This Act offers several avenues for protecting characters, particularly well-known ones:

  • Protection of Well-Known Indications of Source (Article 2(1)(i)): If a character has become widely recognized by consumers as indicating a particular source of goods or services (e.g., a character exclusively associated with a specific company or product line), the unauthorized use of that character (or a similar one) by another party in a way that is likely to cause confusion as to the source or business affiliation can be an act of unfair competition.
  • Protection of Famous Indications (Article 2(1)(ii)): Even without a likelihood of confusion, the use of an indication identical or similar to a famous character mark by another party can be actionable if it dilutes the distinctive quality or damages the reputation of the famous mark.
  • Protection Against Dead Copying of Product Configuration (Article 2(1)(iii)): If a character is embodied in the three-dimensional form of a product, the direct and substantial imitation ("dead copy") of that product's configuration by a competitor may be an act of unfair competition. This protection is, however, limited in duration (typically three years from the date the product was first sold in Japan).

2. Trademark Act (商標法 - Shōhyōhō)

Registering a character as a trademark can provide strong and potentially perpetual protection (through renewals every 10 years).

  • What can be trademarked: The visual representation of a character, its name, or distinctive slogans associated with it can be registered as trademarks for specific classes of goods and services.
  • Function of Trademark Protection: Trademarks protect the character's function as a source identifier, preventing others from using it in a way that would confuse consumers about the origin or endorsement of products or services.
  • Durability: Trademark protection can endure long after the copyright in the original drawings of a character has expired, provided the trademark continues to be used and renewed. This makes trademark registration a vital long-term strategy for character protection.

3. Design Act (意匠法 - Ishōhō)

If a character's visual appearance is applied to an industrial article, resulting in a novel and creative aesthetic design for that article, it may be protectable through a design registration. This protects the ornamental or aesthetic aspects of the article incorporating the character, for a term of up to 25 years from the filing date (following recent amendments).

The Case of Literary Characters

The protection for purely literary characters (those primarily defined by textual description rather than visual depiction) under copyright law is generally considered even more limited. The abstract "image" or personality of a character described in a novel is typically seen as an unprotectable idea, as each reader may form a different mental picture.

Unauthorized use of the same character names and similar personality traits in a new story with a different plot would usually not constitute copyright infringement of the original literary work, unless specific, expressive textual descriptions of the character from the original work are copied or closely paraphrased. Using the basic traits or "stock" elements of a literary character to create a new character in a new story is generally permissible.

Practical Strategies for Protecting Characters in Japan

Given the legal landscape, a comprehensive strategy for protecting valuable characters in Japan typically involves:

  • Copyright: Securing copyright in all specific visual expressions and artistic renditions of the character.
  • Trademarks: Registering the character's name, visual likeness, and related logos as trademarks for relevant goods and services. This is often the most robust long-term protection for a character's commercial identity.
  • Unfair Competition Law: Being prepared to rely on unfair competition provisions, especially if the character achieves a high degree of recognition or fame, to combat uses that cause consumer confusion or dilute brand value.
  • Design Rights: Considering design registration if the character is applied to products in a way that creates a distinct aesthetic design.
  • Contractual Agreements: Clearly defining rights and permissions in all licensing agreements when authorizing third parties to use the character.
  • Consistent Branding and Enforcement: Building strong brand association with the character and actively monitoring and enforcing rights against unauthorized uses.

Conclusion

While Japanese copyright law does not grant protection to "characters" as abstract concepts, it does protect the specific creative expressions of those characters in drawings, illustrations, and other tangible forms. However, due to the inherent limitations of copyright in this context, particularly concerning the idea-expression dichotomy and the abstract nature of a character's persona, a robust strategy for protecting valuable characters in Japan invariably requires leveraging a broader suite of intellectual property rights, most notably trademark law and the Unfair Competition Prevention Act. This multi-layered approach is essential for safeguarding the commercial value and integrity of these important creative assets.