Unraveling Copyright Ownership in Japanese Films: Who Holds the Rights?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

Cinematographic works, encompassing everything from blockbuster movies to television dramas, commercials, and even video games, represent a complex interplay of creative contributions. Given this collaborative nature, Japanese copyright law establishes a unique framework for determining who the "authors" are and who ultimately holds the economic rights (copyright) in these works. This article delves into these specific provisions to clarify the often intricate landscape of film copyright in Japan.

What is a "Cinematographic Work"?

Before discussing authorship, it's helpful to understand what falls under a "cinematographic work" (映画の著作物 - eiga no chosakubutsu) in Japan. Article 2, Paragraph 3 of the Copyright Act defines it broadly to include any work expressed by a method that produces visual or audiovisual effects analogous to those of cinematography and is fixed in a material form. This definition notably extends to works like video games, which are treated as cinematographic works for copyright purposes. A key characteristic is the requirement of "fixation" (固定 - kotei) in a material medium (Article 2, Paragraph 3), a condition not generally mandated for other types of copyrighted works in Japan.

Identifying the "Authors" of a Cinematographic Work (Article 16)

Article 16 of the Copyright Act specifies who is considered an author of a cinematographic work. It states that the authors are those who, "by taking charge of activities such as general oversight, direction, production, cinematography, and art direction, have creatively contributed to the overall formation of that cinematographic work as a whole."

Several important distinctions arise from this definition:

  • Focus on Overall Creative Contribution: Authorship is attributed to individuals whose creative input shapes the film as a unified artistic expression. This typically includes the principal director. It can also encompass others like the director of photography or the art director if their contributions are integral to the film's overall creative formation. If multiple individuals meet this criterion, they become co-authors, and their moral rights are jointly held (governed by Article 64), requiring unanimous agreement for exercise, which can be practically complex.
  • Exclusion of "Classical Authors": Crucially, authors of pre-existing works that are adapted or incorporated into the film—such as the author of the original novel, the screenwriter of the screenplay, or the composer of the musical score—are not considered authors of the cinematographic work itself under Article 16. These creators are often referred to as "classical authors." While they are not authors of the film per se, they retain copyright in their respective original works, and the film is often a secondary work derived from these originals. This means their rights (e.g., under Article 28 concerning the exploitation of secondary works) remain highly relevant.
  • The Role of the Producer: A film producer (制作担当者 - seisaku tantōsha), in the sense of one who handles financing, logistics, or staff selection, is generally not considered an author under Article 16 merely for performing these functions. Such activities are not typically seen as direct creative contributions to the film's overall artistic formation. The Tokyo High Court in the Super Dimension Fortress Macross Case (September 25, 2003) touched upon the limits of a producer's role in claiming authorship. However, if an individual titled as a "producer" also engages in activities that do creatively shape the overall film (e.g., making significant artistic decisions akin to a director), they could qualify as an author. The Tokyo District Court in the Space Battleship Yamato Case (March 25, 2002) explored such a scenario.
  • Exception for Works Made for Hire: The proviso to Article 16 states that if a cinematographic work is created as a "work made for hire" (shokumu chosaku 職務著作) under the conditions of Article 15 (e.g., a news report or corporate promotional film produced by employees of a company), then the employing juridical person (the company) is deemed the author of the cinematographic work. This usually requires the film to be published under the employer's name. The Tokyo District Court decision in the Kurosawa Akira Film DVD Case (September 14, 2007) examined whether certain classic films were published under the director's name (Akira Kurosawa) or the film studio's name, which has implications for determining work-made-for-hire status under the old copyright law, though the principles discussed are relevant.

Ownership of Copyright (Economic Rights) in Cinematographic Works (Article 29)

While Article 16 identifies the creative authors (who primarily retain moral rights), Article 29 dictates who owns the economic rights (copyright) in the cinematographic work. This is where the Japanese system for films significantly diverges from the general principle of creator-authorship for other works.

The "Participation Promise" Rule (Article 29, Paragraph 1)

The core of film copyright ownership lies in Article 29, Paragraph 1. It stipulates that if the authors of a cinematographic work (those identified under Article 16, e.g., the director) have promised a film producer to participate in the production of that work, then the copyright in the cinematographic work (excluding rights in pre-existing works like novels or music used therein) belongs to the film producer (映画製作者 - eiga seisakusha).

  • Film Producer Defined: A "film producer" is defined in Article 2, Paragraph 1, Item 10 as "a person who takes the initiative in, and responsibility for, the production of a cinematographic work." This definition is not limited to traditional film studios. For instance, the IP High Court in the K's Denki CM Case (October 25, 2012) held that an advertiser who commissioned and oversaw the production of a television commercial qualified as the film producer and thus owned the copyright in the commercial.
  • Nature of the "Participation Promise" (sanka yakusoku 参加約束): This "promise" is a key legal concept but is not necessarily a formal, written contract detailing copyright transfer. It can be an explicit or implicit understanding that the creative authors (director, etc.) will contribute their skills to the film's creation under the producer's overall initiative and responsibility. It's generally seen as a factual prerequisite for the operation of Article 29(1), rather than a formal legal act (like a contract) whose validity can be challenged on typical contractual grounds. The provision's aim is to centralize economic rights with the entity that typically bears the financial risks and coordinates the complex production process.
  • Vesting of Copyright: There has been some academic debate on whether the copyright under Article 29(1) vests primitively in the film producer (meaning the Article 16 authors never hold the economic rights in the film), or whether it first vests in the Article 16 authors and is then statutorily and automatically transferred to the producer upon the fulfillment of the "participation promise." While the latter view might align more consistently with the general "creator-author principle," the practical outcome is the same: the film producer obtains the economic rights.
  • Moral Rights Remain with Creative Authors: It is crucial to understand that even when the economic rights (copyright) vest in the film producer via Article 29(1), the author's moral rights (the right to be named as author, the right to preserve the integrity of the work, and the right of first publication) remain with the individuals identified as authors under Article 16 (e.g., the director). This separation can lead to practical complexities, as the producer, while owning the copyright, must still respect the director's moral rights concerning, for example, significant alterations to the film. However, if Article 29(1) applies, there is a presumption that the authors have consented to the film's publication (Article 18, Paragraph 2, Item 3).

Unfinished Films and Raw Footage

The application of these rules to unfinished films or raw footage can be complex. The Tokyo High Court in the Misawa City PR Film Case (September 9, 1993) suggested that for a film that was not yet completed and edited into its final form, the copyright in the individual filmed segments (raw footage) might initially belong to the director or cinematographer who shot them. Once these segments are edited and incorporated into a completed cinematographic work under a participation promise, the copyright in the final film would then belong to the film producer. This implies a distinction between rights in constituent materials and rights in the finished, unified cinematographic work. The specifics can depend heavily on the context of the production and any agreements in place.

Modern Film Production and Contractual Clarity

Traditional film production models have evolved. Today, financing and production often involve complex arrangements such as "production committees" (製作委員会 - seisaku iinkai), where multiple companies invest and share rights, or the use of trusts. These modern structures can make the identification of the "film producer" under Article 29 and the nature of "participation promises" more ambiguous. Consequently, clear and comprehensive contractual agreements among all parties involved (directors, writers, investors, production companies) are increasingly vital to delineate copyright ownership, usage rights, and revenue sharing for cinematographic works.

Special Provisions for Films Made Exclusively for Broadcasting (Article 29, Paragraphs 2 and 3)

Japanese copyright law provides special rules for cinematographic works (e.g., TV dramas, documentaries) that are made "exclusively for the purpose of being broadcast by a broadcasting organization" or "exclusively for the purpose of being diffused by cable by a wire broadcast [cablecasting] organization."

Under Article 29, Paragraph 2, if such a film is made under a participation promise to the broadcasting/cablecasting organization (as the film producer), a more limited set of economic rights vests in that organization. These rights primarily include:

  • The right to broadcast the work and to diffuse it by wire (cable).
  • The right to reproduce the work and to distribute those reproductions to other broadcasting or cablecasting organizations.

Significantly, rights not explicitly listed in Article 29(2)—such as the right to exhibit the work theatrically, the right to make and sell DVDs or other physical copies to the public, or the right to make it available for on-demand internet streaming (apart from its broadcast diffusion)—generally remain with the authors identified under Article 16 (e.g., the director). This is a notable difference from the broader grant of copyright to producers of theatrical films under Article 29(1). The rationale is often attributed to the typically different scale of investment and intended primary mode of exploitation for broadcast-exclusive productions.

It's important to reiterate that the copyright acquired by the film producer under Article 29 (whether Paragraph 1 or 2) pertains only to the cinematographic work as such. It does not include the copyright in any pre-existing works that were adapted or incorporated into the film, such as the original novel, the screenplay (if itself an original work), or pre-existing musical compositions. The film producer must typically secure separate licenses or assignments from the copyright holders of these underlying works to legally incorporate them into the film and exploit the film.

Conclusion

The Japanese copyright framework for cinematographic works is distinct, designed to address the collaborative and often heavily financed nature of film production. It separates the concept of creative authorship (primarily linked to moral rights and often residing with directors and key creative personnel) from the ownership of economic rights (copyright), which typically centralizes with the film producer under the "participation promise" rule of Article 29(1). Special, more limited rules apply to films made exclusively for broadcast. This dual structure, while aiming for clarity, necessitates careful attention to contractual agreements, especially in modern, multifaceted production environments, to ensure that the rights and expectations of all creative contributors and financial stakeholders are properly addressed.