A Recent Court Decision on the Copyrightability of Applied Art
Updated: 4 hours ago
Article information
Categories: Copyright
Topics: Copyrightability / Applied art
Published on this website: 2015-04-22
Regarding the copyrightability of applied art, the prevailing view had traditionally been that the threshold for creativity was set higher than for works of fine art.
Recently, it had been reported that, in foreign countries such as Germany, the majority view does not distinguish between applied art and fine art, and this judgment can be evaluated as having moved closer to the practice in those countries.
(Heisei 26 (Ne) No. 10063)
<Quotation from the Judgment>
(b) Accordingly, the question is whether the appellant's products, which are utilitarian articles, may be protected under the Copyright Act as “works of fine art.”
In this regard, the question is whether forms of expression that are put to practical use or intended for industrial use, referred to as so-called applied art (hereinafter, these forms of expression are referred to as “applied art”), may fall within “works of fine art”; however, there is no express provision concerning applied art in the Copyright Act.
Nevertheless, in view of the fact that the Copyright Act “aims to protect the rights of authors, etc., while giving due consideration to the fair exploitation of these cultural products, and thereby to contribute to the development of culture” (Article 1 of the Act), it is not appropriate to immediately and uniformly deny copyrightability to a form of expression on the ground that it is put to practical use or intended for industrial use. Article 2(2) of the Act is merely an illustrative provision concerning “works of fine art,” and even applied art that does not fall within the illustrated “works of artistic craftsmanship” should be interpreted as protected under the Act as “works of fine art” if it satisfies the requirements for copyrightability prescribed in Article 2(1)(i) of the Act.
Accordingly, it can be said that the appellant's products are protected under the Act as “works of fine art” if they satisfy the above requirements for copyrightability.
b. As to the requirements for copyrightability, in order for a form of expression to receive protection under the Copyright Act as a “work,” it must be something “in which thoughts or sentiments are expressed in a creative way” (Article 2(1)(i) of the Act). In order to be considered “expressed in a creative way,” although the expression need not possess originality in the strict sense, it must exhibit some individuality of the creator. Where an expression is commonplace and ordinary, it cannot be said to exhibit the creator's individuality and cannot be considered a “creative” expression.
Applied art takes various forms, including utilitarian articles themselves, such as personal ornaments; things combined with utilitarian articles, such as sculptures applied to furniture; and things intended to be used as patterns on utilitarian articles, such as dyeing designs (Exhibits Ko 90, Ko 91, Ko 93, and Ko 94), and its modes of expression are also diverse. Therefore, it cannot be said to be appropriate to establish criteria for determining the presence or absence of a high degree of creativity to be applied uniformly to applied art; whether the creator's individuality is exhibited should be examined specifically in each individual case.
English translation of the Japanese article.
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