The Reality of Copyright Litigation in Japan: Beyond Legal Theory, How Do Practical Factors Influence Similarity Judgments?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

While Japanese copyright law provides a sophisticated doctrinal framework for assessing similarity—centered on the "direct perception of essential expressive features" test, the idea-expression dichotomy, and principles of creativity—the actual application of these doctrines in the courtroom can be influenced by a range of practical, contextual, and sometimes non-doctrinal factors. Understanding these "real-world" elements is crucial for a comprehensive grasp of how copyright disputes often unfold in Japan, as they can subtly shape judicial decisions on the pivotal issue of similarity, sometimes leading to outcomes that might diverge from what a purely theoretical analysis would predict.

The Ideal vs. The Real in Judicial Decision-Making

In an ideal legal world, the determination of copyright infringement would be a straightforward application of established rules to a given set of facts. Copyright law offers principles like the idea-expression dichotomy, standards for assessing creativity (such as the "scope of selection" theory), and the overarching "direct perception" test for similarity. These provide the intellectual architecture for resolving disputes.

However, courtrooms are not sterile laboratories where legal formulas are mechanically applied. Judges preside over real disputes involving human parties (or corporate entities run by humans), with complex factual backgrounds, varying degrees of candor, and often, a strong sense of perceived grievance or entitlement. Legal commentators and experienced practitioners in Japan observe that judicial decisions, while always formally grounded in legal reasoning, can sometimes be influenced by a judicial desire to reach what is perceived as a fair, equitable, or pragmatic resolution in the specific, often messy, circumstances of the case. This doesn't necessarily mean that the law is disregarded, but rather that its application, particularly in areas involving evaluative judgment like assessing similarity, can be steered by these broader considerations.

Key Practical Factors Potentially Influencing Similarity Judgments

Several practical factors, often operating beneath the surface of formal legal doctrine, may influence how Japanese courts approach and decide on copyright similarity:

1. The Defendant's Conduct and Perceived "Fairness" (Freeriding, Bad Faith)

  • "Strong Reliance" (Tsuyoi Ikyo) and Intentional Freeriding: One of the most significant non-doctrinal factors appears to be the court's perception of the defendant's conduct. If evidence suggests that a defendant deliberately set out to copy a well-known or successful work, or to "freeride" on the plaintiff's established reputation and goodwill, this can create a distinctly unfavorable impression. While Japanese copyright law doesn't explicitly incorporate a "bad faith" element into its infringement criteria in the same way some other legal systems might, a clear intent to appropriate another's labor and success can make courts less inclined to give the defendant the benefit of the doubt in borderline cases of similarity. This doesn't formally change the "direct perception" test, but it might subtly lower the perceived threshold for what constitutes a "direct perception" of the original's features, or lead to a more critical view of the defendant's claims of independent creation or permissible inspiration.
    • For instance, in cases involving highly famous characters where the defendant's product seems clearly designed to evoke the original (as might be inferred in historical cases like the Sazae-san Bus case, Tokyo District Court, May 26, 1976, or the Riderman case, Tokyo District Court, November 14, 1977), the sheer recognizability coupled with the nature of the use can weigh heavily. Similarly, the context of creating forgeries, as in the Elmyr de Hory case (Osaka High Court, May 28, 1997), inherently frames the similarity analysis within an atmosphere of illicit intent.
    • Even in cases not involving globally famous works, if a defendant had direct access to the plaintiff's work and their own creation closely mirrors it without substantial independent contribution (e.g., the defendant in the Min-ka no Noren (Folk House Noren) case, Tokyo District Court, November 25, 1992, allegedly not visiting the actual site but relying on the plaintiff's artwork; or the defendant in the Gion Matsuri Shashin (Gion Festival Photograph) case, Tokyo District Court, March 13, 2008, initially using the plaintiff's photograph directly before commissioning a painting based on it after a complaint), the perceived "unfairness" of this reliance can be palpable.
  • Party Behavior During Litigation: The conduct of a party during the litigation process itself can also play a role. If a party is perceived as being uncooperative, evasive, or providing inconsistent or misleading testimony (as was suggested regarding the defendant's shifting stance on reliance in the Mizumizushii Suika (Juicy Watermelon) case, Tokyo High Court, June 21, 2001), this can negatively affect their credibility and, potentially, the judge's overall disposition towards their arguments on more subjective issues like the perception of similarity.

2. The Thoroughness and Quality of Evidence Presented

The evidence adduced by both parties, particularly concerning the creativity of the plaintiff's work and the alleged commonality of expression, is critical:

  • Proving "Commonplaceness" (Arifureta Hyōgen): A key defense strategy is to argue that the elements allegedly copied by the defendant are, in fact, commonplace, standard, or unoriginal, and therefore lack the requisite creativity for copyright protection, or that the plaintiff's work itself has very low creativity, meriting only thin protection. The success of this argument often hinges on the defendant's ability to provide concrete evidence, such as examples of prior existing works or widespread use of similar expressions in the relevant field.
    • For example, in the Fuwafuwa Shiki no Tayori case (Tokyo District Court, October 30, 2014), concerning simple seal designs, the defendant's submission of numerous pre-existing similar designs ("comparison designs") was instrumental in the court finding many of the plaintiff's design features to be commonplace, leading to a denial of similarity for most items. The Urusee Tori case (Tokyo District Court, October 14, 2020) involving character illustrations also saw the defendant successfully use evidence of other similar characters to argue that the plaintiff's character features were not unique.
  • Plaintiff's Demonstration of Creativity: Conversely, a plaintiff who can clearly articulate and substantiate the unique creative choices and original contributions in their work—perhaps through detailed explanations, comparisons with prior art to highlight distinctiveness, or, in complex cases, expert testimony—is in a stronger position.
  • Impact of Resource Disparities: The ability to conduct thorough research for prior art or to commission expert analyses can be resource-intensive. This means that in practice, particularly in disputes involving parties with unequal resources, the quality and comprehensiveness of evidence relating to creativity and commonplaceness might vary, potentially influencing outcomes. A lack of robust evidence from a defendant to support a claim of "commonplaceness" might lead a court to give more credence to the plaintiff's assertions of originality and similarity.

3. Judicial Pragmatism and Case Management (Judicial Economy - 訴訟経済 soshō keizai)

Courts operate under practical constraints, including managing heavy caseloads. This can sometimes lead to pragmatic approaches in decision-making:

  • Focusing on Dispositive Issues: If a case presents multiple complex legal or factual issues (e.g., questions of copyright ownership, contractual interpretations, alongside similarity), a court might choose to resolve the dispute based on what it perceives as the clearest or most straightforward issue that can dispose of the entire case. For instance, if a finding of no similarity is relatively easy to make, the court might focus its judgment there to avoid delving into more convoluted questions about the work's initial copyrightability or the chain of title, even if those other issues were also extensively argued. This was speculated as a potential factor in some cases where copyrightability itself was denied for works like photographs, perhaps as a simpler route than untangling complex licensing or ownership histories (e.g., the Kubota Itchiku Art Museum case, Tokyo District Court, June 19, 2018).
  • Managing Comparisons in Cases with Numerous Items: When a lawsuit involves alleged infringement of a large number of individual items (e.g., multiple illustrations in a series, numerous calligraphic characters), courts may sometimes make broader findings on similarity for groups of items, or focus on representative examples, rather than conducting an exhaustive, equally detailed analysis of every single item. This can be seen in some older cases like the Dōsho "Watashi no Sanpomichi" (Dynamic Calligraphy "My Walking Path") case (Tokyo District Court, October 30, 1985), where the analysis of similarity for some characters (the "Nagoya edition") was notably brief after clear infringement was found for others (the "Tokyo edition").

4. The "Overall Narrative" and Judicial "Sense of Justice" (Otoshi-dokoro)

Experienced legal practitioners in Japan sometimes refer to an intangible element in judicial decision-making: the judge's formation of an overall "sense of the case" or an intuition about the "just outcome" or "appropriate landing point" (落とし所 - otoshi-dokoro). This sense is often derived from the totality of the circumstances presented, including the history of the parties' interactions, their conduct during the dispute, and the perceived equities of the situation.

While the final judgment will always be articulated through formal legal reasoning and application of relevant doctrines, this underlying sense of what constitutes a fair resolution in that specific dispute can guide how the judge interprets ambiguous facts or applies evaluative legal standards like copyright similarity. The "direct perception of essential expressive features" test, being inherently evaluative rather than purely mechanical, provides a degree of flexibility where such considerations can subtly influence the outcome. This is not to say that judges disregard the law, but rather that in areas admitting of interpretation, their reasoning may be shaped towards an end that aligns with their holistic understanding of the case's merits.

5. The Fame of the Work (Revisited)

As discussed in a previous article, while the formal rule (exemplified by the MUSASHI case, IP High Court, June 14, 2005) is that a work's fame should not alter the objective standard for similarity, the high recognizability of a famous work can practically make it easier for any observer—including a judge—to "perceive" its features in a defendant's work, even if the copying is partial or altered. The powerful "aura" of a widely known creative work can be a difficult factor to completely set aside in the overall perception of relatedness.

The potential influence of these practical, sometimes non-doctrinal, factors on copyright similarity judgments presents challenges for legal theory and predictability. If outcomes can be swayed by elements beyond the objective comparison of works against established legal standards, it can make it harder for creators, users, and their legal advisors to anticipate how a dispute might be resolved based solely on a strict doctrinal analysis. It also raises questions about the full transparency of judicial reasoning if some of the underlying drivers of a decision are not explicitly articulated in the formal judgment.

However, some might argue that this inherent flexibility is a necessary feature of a justice system dealing with human affairs, allowing courts to avoid unjust outcomes that might result from an overly rigid or formalistic application of legal rules in unique or compelling circumstances.

It has been suggested that as Japanese copyright law continues to develop more specific and flexible statutory limitations and exceptions to copyright—such as those for incidental inclusion of works (Article 30-2) or for uses not aimed at enjoying the work's expressive content (Article 30-4)—the pressure on the similarity doctrine to serve as an all-purpose tool for achieving equitable adjustments might lessen. If a particular use of a work can be clearly deemed permissible under a specific statutory exception, the often-thorny question of whether the works are "similar" enough to constitute prima facie infringement might become less critical in those contexts.

In the landscape of Japanese copyright litigation, while established legal doctrines concerning creativity, the idea-expression dichotomy, and the "direct perception of essential expressive features" provide the essential framework for assessing similarity, it is crucial to recognize that the courtroom is not a vacuum. The reality of adjudication often involves an interplay between these formal doctrines and a range of practical, contextual, and sometimes "human" factors.

The perceived fairness of a defendant's actions, particularly in relation to clear attempts at freeriding or bad faith; the quality and thoroughness of the evidence presented by both sides, especially concerning the originality or commonplaceness of expressive elements; elements of judicial pragmatism and case management; and perhaps an overarching judicial sense of a just resolution for the specific dispute at hand, can all subtly or overtly influence how the evaluative standard of similarity is applied.

This does not mean that legal principles are arbitrarily set aside, but rather that within the spaces for interpretation and evaluation inherent in copyright law, these real-world considerations can shape the path to a final judgment. For litigants and their counsel, this underscores the importance not only of mastering the relevant legal doctrines but also of being acutely aware of the broader factual narrative and the equitable dimensions of their dispute when presenting their case to a Japanese court. The tension between doctrinal consistency and the pursuit of justice in individual, often unique, cases is an enduring feature of the legal process, and copyright litigation is no exception.