Protecting Illustrations and Characters in Japan: Key Points in Copyright Similarity and the Influence of Fame

Illustrations and characters are vibrant and commercially significant forms of creative expression, particularly in Japan, a country renowned for its rich history of manga, anime, and mascot culture. While a specific visual depiction of a character—an illustration—is generally protectable as an "artistic work" under Japanese copyright law, determining the scope of this protection and assessing whether another illustration or character design infringes upon it involves navigating a complex interplay of legal principles. Key among these are the idea-expression dichotomy, the assessment of creativity in visual features, and, subtly, the influence of a character's existing fame.

It's important to note at the outset that Japanese copyright law, as clarified in landmark cases like the Popeye Necktie case (Supreme Court, July 17, 1997), protects the concrete visual expression of a character, not the "character" as an abstract concept defined by its name, traits, or personality divorced from a specific depiction. This article focuses on the similarity analysis concerning these tangible visual expressions.

Applying the "Direct Perception" Test to Visual Characters

The fundamental standard for copyright similarity in Japan is 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. When applied to illustrations and characters, this involves dissecting the visual elements to distinguish protectable creative expression from unprotectable components:

1. Idea vs. Expression: The general idea or concept underlying a character is not protected. For example, the idea of "a personified book" (Town Page Character case, Tokyo High Court, May 30, 2000), "an anthropomorphic frog" (Kero Kero Keroppi case, Tokyo High Court, January 23, 2001), or "a cat character" are all unprotectable ideas. Copyright protection only attaches to the specific, concrete way these ideas are visually expressed—the particular lines, shapes, proportions, colors, and unique design features.
2. Creativity in Visual Features: Not all visual elements of a character design are considered "creative expression."
   • Commonplace Features (arifureta hyōgen): Features that are standard, generic, or common to a particular type of character or subject matter are deemed "commonplace expressions" and lack the requisite creativity for protection. For instance, depicting a rabbit with long ears, a cat with whiskers, or a stereotypical professor with a mortarboard and gown (Hakase (Professor) Illustration case, Tokyo District Court, July 4, 2008) involves features that are largely generic to the archetype. Similarity based solely on such commonplace elements does not constitute infringement.
   • Author's Personality: Creativity is found in the unique selection, combination, and execution of visual elements that manifest the author's personality and individual style, going beyond mere common tropes.

The "level of creativity" inherent in a character's design also plays a crucial role: simpler designs with few distinctive features or those heavily reliant on common elements will receive "thinner" protection, meaning only very close imitations will infringe. More unique and complex designs will receive "thicker," broader protection.

Cases Where Similarity Was Denied: Commonplace Elements and Differing Executions

Numerous Japanese court decisions have denied copyright infringement for character illustrations where similarities were confined to unprotectable ideas or commonplace features, or where the concrete expressions, despite a shared theme, exhibited significant differences:

• In the Town Page Character case (Tokyo High Court, May 30, 2000), though both works featured personified books, the court found no infringement because the shared concept was an idea, and the actual visual renderings of the book-characters (their shapes, the way eyes and limbs were attached) were different.
• The Kero Kero Keroppi case (Tokyo High Court, January 23, 2001) involved stylized frog characters. The court deemed basic frog-like attributes (oval head, large protruding eyes, short body and limbs) to be common for such characters. As the specific details of execution—line thickness, eye placement and style, body proportions, and color schemes—differed, similarity was denied.
• Similarly, in the Urusee Tori case (Tokyo District Court, October 14, 2020), concerning a stylized bird character, the defendant successfully argued that many of the plaintiff's character's individual features (e.g., a simple semi-oval head without hair, small black dots for eyes, a generally thick beak, a stout body with simple stick-like limbs) were common in numerous pre-existing character designs. The court found that the combination of these simple elements resulted in a character with relatively low overall creativity, especially when depicted in common poses where the "scope of selection" for expression was limited. Consequently, a very high degree of similarity would be required for infringement, which was not found given the existing differences.
• The Mansion Dokuhon case (Osaka District Court, March 26, 2009) involved a stylized female illustration used in an informational booklet. The court controversially focused its comparison primarily on the "head and face" as the essential expressive features. While acknowledging some similarities in hairstyle and the use of cheek blush, it emphasized differences in specific facial details (eyebrows, mouth, eye rendering) and the overall impression conveyed (plaintiff's character seen as "cool and intellectual," defendant's as "gentle and friendly"). Critics have questioned whether this approach unduly disregarded similarities in posture, clothing style, and body depiction.
• In the Hakase (Professor) Illustration case (Tokyo District Court, July 4, 2008), the plaintiff's cartoon professor character (used on educational DVD packaging) shared several features with the defendant's professor character: a mortarboard, academic gown, beard, a two-head-high body proportion, oversized shoes, a specificカイゼル髭 (Kaiser mustache), and particular facial construction elements. However, the court dissected these features and concluded that the overall concept of a "professor character" with such attributes was largely an unprotectable idea or comprised extremely commonplace elements for that archetype. Combined with differences in artistic style (the defendant's character having a more three-dimensional feel compared to the plaintiff's flatter rendering), the court found no actionable similarity. This case illustrates how even a collection of seemingly specific traits might be deemed commonplace when associated with a strong character archetype.

These cases underscore that for character illustrations, particularly simpler ones or those fitting common archetypes, plaintiffs face a significant challenge. They must demonstrate that the defendant has copied the unique, creative execution of the character, not just the underlying concept or generic features.

Cases Where Similarity Was Affirmed: Unique Expressions and the Shadow of Fame

Conversely, Japanese courts have affirmed copyright infringement in numerous character illustration cases, often where the original character possessed highly distinctive features that were clearly reproduced, or where the fame of the original character was a significant contextual factor:

• Early landmark cases involving highly famous characters often found infringement readily. In the Sazae-san Bus case (Tokyo District Court, May 26, 1976), the unauthorized use of Japan's iconic Sazae-san family characters on a tour bus was deemed infringing, with the court emphasizing that anyone would recognize the characters. The Taiyaki-kun case (Tokyo District Court, March 30, 1977) similarly protected a famous fish character from a popular children's song against unauthorized plush toys, noting the near identity in form and expression. The Riderman case (Tokyo District Court, November 14, 1977) found infringement for a mask replicating the distinctive helmet of a character from a popular tokusatsu television series. In these cases, the immense public recognition of the characters likely contributed to the perception of similarity.
• The Non-tan case (Tokyo High Court, November 17, 1999), concerning another beloved children's book cat character, affirmed infringement for merchandise. The court identified specific visual characteristics of Non-tan (such as its distinctive wavy, "yarn-like" outline, color scheme, large triangular ears, and the particular arrangement of its eyes and nose) as being reproduced. The prominent display of the "nontan" name on the merchandise, coupled with the character's fame, almost certainly reinforced the finding of similarity from the perspective of the consumer.
• More recently, the Hikonyan case (Osaka High Court, March 31, 2011) involved "Hikonyan," a very popular regional mascot (a cat wearing a distinctive samurai helmet). Infringement was found against similar-looking merchandise because it reproduced Hikonyan's unique combination of features: the specific helmet design with large golden horns, the particular rendering of the cat's face, its body shape, and the bell on its collar.
• In the Hula Neko (Hula Cat) case (Osaka District Court, September 10, 2015), the defendant copied the head of the plaintiff's cat illustration from a website and combined it with a new, digitally drawn hula dancer's body and costume. The court found infringement (specifically, an infringing adaptation and infringement of the right of integrity) because the original head's essential expressive features were clearly and directly perceptible in the defendant's composite illustration. This highlights that even partial but significant copying of a character's distinctive component can lead to infringement.
• The Nemuri Neko (Sleeping Cat) case (Osaka District Court, April 18, 2019) dealt with a stylized circular design of a sleeping cat, where the cat's form was integrated with decorative patterns (like clouds or waves). The court found similarity for several of the defendant's T-shirt designs that reproduced the plaintiff's core concept of a curled-up cat within a circular frame, the specific positioning of its paws, tail, and ears, and the overall integrated aesthetic of the cat and its surrounding pattern, even if the exact patterns (e.g., waves vs. clouds vs. arabesques) differed in some of the defendant's versions. The court reasoned that the essential expressive feature lay in this overall unique composition. However, other cat designs by the same defendant that departed more significantly from this core compositional idea were found not to be similar.

These cases demonstrate that when a character possesses a unique and recognizable combination of visual features, or when it has achieved substantial fame, courts are more inclined to find that its essential expressive features are directly perceivable in derivative products, even if some modifications have been made.

The Persistent Question: The Influence of Fame and Freeriding

A recurring theme in the analysis of these cases is the potential, often unspoken, influence of a character's fame or an infringer's perceived intent to freeride on its established goodwill. While the formal legal position, articulated in cases like MUSASHI (Intellectual Property High Court, June 14, 2005, concerning a film title logo, not a character), is that fame does not alter the objective standard for copyright similarity, the practical outcomes in some character cases suggest otherwise.

For extremely well-known characters, even partial or slightly modified depictions might be deemed infringing if they readily evoke the original in the public's mind. The high recognizability factor due to fame can make the "direct perception of essential expressive features" easier to satisfy from the viewpoint of the average consumer. Furthermore, if there's evidence that a defendant intentionally tried to create an association with a famous character to capitalize on its popularity ("strong reliance"), courts may be less forgiving of resemblances that might be excused for lesser-known works or in situations of clear independent creation. This pragmatic approach, while not always explicitly stated as a deviation from the objective similarity test, seems to reflect a judicial inclination towards fairness and preventing unjust enrichment in conspicuous cases of freeriding.

Conclusion: A Balancing Act for Character IP

Protecting character illustrations under Japanese copyright law involves a careful balancing act. While copyright readily protects original visual depictions, the scope of that protection is intrinsically linked to the distinctiveness and creativity of the character's design.

• Unique and Detailed Designs: Characters with a rich combination of unique visual features and a high degree of creative expression generally receive robust and broad protection.
• Simple or Archetypal Designs: Characters composed of simple geometric forms, common animal traits, or stereotypical features tend to have a much narrower scope of protection. Infringement in such cases typically requires very close, often near-verbatim, copying of the specific creative elements that distinguish the plaintiff's design from the general archetype or commonplace representations. Defendants can often successfully rebut claims by demonstrating that the shared features are common in the public domain or in numerous pre-existing works.
• The Fame Factor: While not a formal element of the copyright similarity test, the fame of a character can, in practice, influence how courts perceive recognizability and apply the "direct perception" standard, particularly where there are indications of intentional freeriding by the defendant.

Ultimately, the protection of illustrations and characters in Japan hinges on a meticulous, case-by-case analysis of what constitutes the core creative expression of the original design, distinguishing it from unprotectable ideas and commonplace elements, and then assessing whether that protected core is substantially present in the allegedly infringing work.