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User:Tomos/Publicity and Privacy Rights under Japanese Law

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This page is about some legal rights related to taking photo of a person and distributing it.

I am not a lawyer. It is highly likely that some of the word choices are wrong and/or unconventional, and some statements are wrong and/or imcomplete.

This is a very preliminary note. It is subject to further revisions.


Main points

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  1. (Property right and personality right)
    There are two types of rights in this regard - one is a property right, usually called a publicity right, the other personality right, a right to privacy. They are related, but one can infringe one of these rights without infringing the other. [1] [2]
  2. (Photographing and distribution)
    There are at least two separate personality rights recognized by the courts. One has to do with taking a photo, the other with distributing. [3]
  3. (Drawing and other means of depicting a person)
    Drawing an illustration, as opposed to taking a picture, could still be an infringement of one's personality right. [4]
  4. (Statute and cases)
    There is no statutory provision directly recognizing rights of publicity and privacy. [5]
  5. (Public figure versus private person) It is generally agreed that the private persons do not have the property right associated with their likeness. They have privacy rights. In case of public figures and celebrities, they have the property right, and privacy is protected to a lesser degree than private persons. Cite error: Invalid <ref> tag; refs with no name must have content
  6. (Publicity rights over objects and entities)
  7. (Scope) Use of a person's name and likeness is covered by these right, many agree. [6]
  8. (Death and right of privacy) (鈴木, 2006, p.60)
  9. (Limitations to the right)
  10. (Transferability) The personality right-based right to likeness is not transferable while the propert right-based publicity right is, some suggest. Others suggest that the publicity right, too, is ultimately based on personality rights, so nothing is transferable. (鈴木, 2006, p.60)
  11. (Alienability)
  12. (Right or not)
    Some court avoided clarifying if publicity right and privacy right related to the photographing someone and distributing someone's photo.

Some background

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Tort is a violation of a right or an interest. Some court avoided recognizing publicity "right" or privacy "right" in relation to taking photographs and distributing them.

Footnotes

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  1. ↑ See, for example, the High court decison on w:Onyanko_Club calendar in which the Onyanko Club members' publicity right is found to be infringed, while privacy right is not. The case is discussed in 日本印刷産業連合会 (2006). 日本写真家協会　著作権委員会 (date of publication unspecified) also discusses this duality.
  2. ↑ Some has a different view, however. 五十嵐(2003, p.167), sees the duality, but still maintains that both types of rights are pronouncement of two aspect of the same right.
  3. ↑ See the Supreme Court decision on Nov. 10, 2005 on the drawing, photographing of a prosecuted during his criminal trial, and subsequent publication of the images. The Court recognized the two differnt rights in this case. It decided that drawing was acceptable, while photographing constituted a tort given the specific facts of the case, and publication of some of the drawing was acceptable, while other drawings and the photo constituted a tort. See also 五十嵐 (2003, pp.170-172).
  4. ↑ See the Supreme Court decision on Nov. 10, 2005 cited above. Sculpture is another potential means of expression that could infringe one's right of likenss. An injunction of was granted against public display of a statue of a prominent politician - the politician sued an alma mater on the ground of personality right (without specifically claiming the use of his likeness, however.). See 五十嵐 (2003, pp.166-167).
  5. ↑ Privacy in general is not defined in the statute in any explicit way, but is grounded on the article 13 of the Constitution, which defines the right to pursue happiness, as well as article 709 of the Civil Code, which defines tort and financial liabilities of tortfeasers.
  6. ↑ 関堂 (2002a, pp.66- 68) suggests that these rights also cover use of information closely related to a person and is a distinctive characteristic to the person. He referrs to King Crimson case, in which a use of an album jacket was under dispute, and suggests that this kind of right extends to unique book covers among other things.

Further Reading

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The materials are mostly limited to those fully available online.

Court Cases

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  • 京都府学連事件　最高裁 昭和４４年１２月２４日判決[1]
    Supreme Court (1969) on the matters of police taking a photograph of a person without legitimate reason. The first case that recognized the right of a person not to be taken a photo without a proper reason, though the Court did not decide if that was the same as so-called right to likeness (肖像権). It also stated that the right is grounded on the article 13 of the Constitution.
  • マーク・レスター判決　東京地裁判決　昭和５１年６月２９日　一部抜粋
    Tokyo District Court (1976) on a use of British actor Mark Lester's image in a TV commercial. Often referred to as the first case recognizing publicity right, the property-right side of the rights related to use of one's image (箭川 ,1981, pp.156-157; 関堂, 2002a, p.60). The court's use of the term publicity right occurred later, in 1989, according to 関堂 (2002a, pp.60-61).
  • 法廷内の隠し撮り事件　最高裁　平成１７年１１月１０日[2], [3]
    Supreme Court (2005) on the matters of secretly photographing and drawing the prosecuted in a criminal trial, and publishing them.
  • ダービースタリオン事件 高裁判決　平成１４年９月１２日 [4]
    High Court (2002) regarding the publicity right of a famous race horse
  • ギャロップレーサー事件 最高裁判決 [5]

[6]

  • Supreme Court () regarding the publicity right of a famous race horse

Relevant Statutes

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  • 民法709条[7]
    Civil Code article 709 (Tort)
  • 憲法13条 [8], in English
    Constitution article 13 (Right to pursue happiness)

Commentaries and other materials

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Scholarly publications


Trade publications in related industries

Others

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