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Photo Copyright - The distance between "similar" and "infringement" under Japanese Copyright Law

by Kodai Kimura, Esq.

· Copyright,Photograph,Artist

Today's Levitation

This is a series of self-portrait pictures, titled "Today's Levitation" by Natsumi Hayashi (Artsy: Natsumi Hayashi), which captures the moment when she jumps into the air. It was published in diary form on her website. She was jumping, but she did not alter or synthesize the photos in any way - sometimes she jumped three hundred times, taking pictures of the exact moment when it looks like she defied gravity and was suspended in mid-air. *1

Starting on January 1, 2011 in diary form, "Today's Levitation" was followed up in the New York Times and elsewhere around the world.

Natsumi Hayashi, Today's Levitation, December 16, 2010
Source: Yowayowa Camera Woman Diary

Ms. Hayashi said about the theme of levitation in an interview that “Well… then it should be negligence to the gravity (laugh).” *1

"Gravity" is something that everyone experiences and cannot escape from. Many people possibly felt a sense of freedom and liberation from their current concerns or problems they cannot escape, by relating them with Today's Levitation. An important feature of this work would be to maintain this sense of freedom on a daily basis in diary form.

Lipton’s Advertising Campaign in 2013

In 2013, Lipton's advertising campaign featured a levitation photograph, and there were tweets on twitter that made them think that it was "Today’s Levitation." However, note that there are no reports of any kinds of disputes on this photograph in particular.

Lipton Advertising Campaign in 2013

Source: Morinaga Milk Industry Website

I would like to introduce the concept of Japanese Copyright Law using this case as a material example.

“Reliance” and “Similarity”

Let me explain some legal terms briefly. To establish copyright infringement, requires "reliance" and "similarity."

"Reliance" means having access to another person's work and using it in his/her own work. In other words, making a work that is exactly the same by chance does not constitute copyright infringement.

For example, a woman, Sarah Scurr presented a photograph shooting the San Rafael Glacier in Chile for a photo contest. Six years later, another amateur photographer, Marisol Ortiz Elfeldt pointed out that it was actually her photograph! The competition organizer, however, found that they both participated in a San Rafael Glacier tour on the same day and took these pictures at almost the same time next to each other. *2

Photograph by Sarah Scurr (left) | Photograph by Marisol Ortiz Elfeldt (right)

Source: Oliver Smith, How an incredible coincidence sparked a Facebook plagiarism row, the Telegraph, February 2, 2015.

Like this case, there is no infringement of copyright because there is no reliance on either of the works, which means that there is a lack of reliance. It was merely a coincidence.

"Similarity" means that the original elements of a work are similar, but it is quite hard to draw a clear line. We will explore the boundaries by looking at examples below.

Originalities in Photography

Again, similarity takes into account similarities in the original elements in a photograph. So what is considered as an original element? Roughly speaking, there are two aspects.

The first aspect relates to technical considerations such as angle, exposure, lighting, lens selection, shutter speed setting, and timing. The other relates to the actual subject. These are similar to U.S. Copyright Law.

Distinction between "artificial subjects" and "natural subjects"

An important viewpoint for subjects is the distinction between "artificial subjects" and "natural subjects." The reason for this is that it affects the degree for a court to consider the similarity of a subject for finding an infringement.

Artificial subjects are cases where a photographer creates a subject itself. In advertising photographs, a photographer can arrange products and select the background or the photographer can instruct a model on certain poses/postures, fashion styles, and make-up, facial expressions etc.

"Today's Levitation" would be classified as an artificial subject because the artist has decided on the location and posing in her photograph.

On the other hand, a natural subject is a subject in which the photographer is not involved in the creation of the subject, such as a photograph of a landscape, a building or something else. The San Rafael Glacier photographs that I introduced are typical examples of a natural subject.

The differences are summarized in the figure below.

In the case of a natural subject, the similarity of the other elements is more important than the commonality of the subject. Let us look at the actual cases in which the case was brought to court.

Ruins Photography Case

A famous case in Japan involves ruins photography *3.

Both parties are professional photographers. The plaintiff who alleged infringement was Mr. Shozo Malta and the defendant was Mr. Shinichiro Kobayashi. The court's ruling was that there was no copyright infringement. At first glance you might think there appears to be a similar impression because the same ruins are the subjects.

Shozo Malta, Origin (1993) (left) | Shinichiro Kobayashi, Deathtopia (1998) (right)
Source :Shozo Malta's blog

Shozo Malta, 迷彩 (1992) (left) | Shinichiro Kobayashi, Haikyo wo Yuku (2003) (right)
Source :Shozo Malta's blog

Shozo Malta, 大仁金山 (1992) (left) | Shinichiro Kobayashi, Deathtopia (1998) (right)
Source :Shozo Malta's blog

Shozo Malta, 機械室 (1992) (left) | Shinichiro Kobayashi, Hikyo Hyoryu (2001) (right)

Source :Shozo Malta's blog

However, these subjects are ruins, and the ruins themselves were not created by the photographers. Therefore, we must take into account factors other than the similarities of the ruins themselves.

The court then considered that the angles; lighting, backgrounds, and shooting time were different, even if the defendant shot the same ruins and as a result found that there was no copyright infringement.

Sahuc v. Tucker

Another example is a U.S. case, Sahuc v. Tucker. *4

Sahuc v. Tucker concerns two photographs which captured the St. Louis Cathedral in Jackson Square, New Orleans, Louisiana. One is a work titled “Decatur Street Gate”, which was taken in 1999 by the professional photographer Louis Sahuc. Lee Tucker, the defendant, took the photograph “Breaking Mist” in 2001, and the similarity between the two pictures was at issue.

Louis Sahuc, Decatur Street Gate, 1999 (left) | Lee Tucker, Breaking Mist, 2001 (right)

Source: PACA, Copyright/Copywrong in Image Licensing, January 8, 2008

In this case, there is no dispute that Tucker had access to Sahuc's "Decatur Street Gate" prior to taking the photograph. What do you think?

In conclusion, the court denied that there was any copyright infringement. The main reason for this is the difference in the arrangement, angle of the subjects and lighting. The subject is St. Louis Cathedral, a natural subject because it is an existing one, not created by any photographer. Therefore, it is necessary to examine whether the photographs are similar to each other mainly on the basis of elements other than the similarity of the subject. Then the two pictures show different lighting angles, and different fog intensity.

We have seen examples of court judgments for natural subjects. In contrast, in artificial subjects, the similarity of the subject is also one of the important elements. However, the similarity of the subject by itself does not directly lead to constitute an infringement. We also need to review the similarities of other elements, such as angle and lighting etc. Let us look at some examples.

Watermelon Photography Case

A famous case among IP lawyers in Japan is the Watermelon Photography Case.

The plaintiff, a professional photographer Ken Huang alleged that the photograph he published had been infringed and sought an injunction and damages against the defendant who published a catalogue containing the photograph of the defendant.

In this case, the Tokyo District Court*5 denied any similarity between the two photographs and denied the plaintiff's claim, whereas the Tokyo High Court*6 at the appellate instance upset this decision and found that there was similarity of the photographs and copyright infringement.

Ken Huang, Fresh-Looking Watermelon (left) | Defendant Photograph (right)

Source: Schedule of the Tokyo High Court Decision

However, note that there were some special circumstances in the background of this Watermelon Photography Case. The defendant insisted that he had gone to Asahikawa City to take photographs of fruit, and had taken a unique image of watermelons in a nearby watermelon field. However, in the appellate instance, it was found that the watermelon of the elliptical sphere in the defendant’s photograph was a winter melon that should not have been in the watermelon field, which may have angered the court.

The court concluded that unless the defendant relied on the plaintiff’s photograph, the defendant could not have taken the defendant’s photograph at all. That is why in my opinion, we should be cautious with regard to using this famous case as a baseline in the sense that the level of similarities in this case would constitute copyright infringement.

How about Lipton’s Advertising Campaign?

Given the similarity between "Today's Levitation" and Lipton's Advertising Campaign, I think that although the photographs depicting levitation are similar in angle and levitated model position, they do not constitute copyright infringement. This is because there are many details that are not similar, such as shooting location, background, model fashion, and overall color etc.

It is often said that copyright law protects expressions and does not protect ideas. From a broad perspective, Copyright Law aims to contribute to the development of culture through the protection of creators, and the just and fair exploitation of copyrighted works. Ideas are not protected because the grand design of copyright law is that an idea creates a variety of expressions, and such variety of expressions contributes to the development of culture.

Ultimately, it is a policy decision as to whether monopolizing levitation photography by someone who first took such photographs will lead to cultural development, or whether the creation of a variety of levitation photographs from the idea of levitation photography will lead to cultural development.

Of course, the photo in Lipton’s Campaign is more like "Today's Levitation" than just a levitation photo, but I feel that the scope of monopoly is too broad to find any copyright infringement.

Sony World Photography Award 2017

Finally, let us consider a recent case involving the Sony World Photography Award 2017. *7

 

This work was taken by Alex Andriesi, a Romanian artist who was shortlisted in the open section in one of the world's largest photo contests, the Sony World Photography Award 2017. This is also a kind of photography based on levitation.

Alex Andriesi, Far from gravity (2017)

Source: PHENIX ART

It was Anka Zhuravleva, a Portuguese-based photographer who appealed that the work of Andriesi stole her work. The photograph of Zhuravleva is “Distorted Gravity” below.

Anka Zhuravleva, Distorted Gravity (2011)

Source: Anka Zhuravleva Website

Let us compare the two works from the viewpoints I described above.

 

The subjects are scenes in which a woman and a girl with closed eyes are floating together amongst multiple spheres including one sphere which is being held by the respective subjects. The background appears to be made of concrete.

 

Since the subjects have been created by the photographers, the similarity of the subjects would be considered as artificial subjects.

When we examine the details, we find that the number of spheres in the Andriesi work is 9, compared to 13 in the Zhuravleva work. The colors of the spheres are yellow for Andriesi and slightly orange for Zhuravleva. The subject of the Andriesi work seems to be a girl, and the subject of the Zhuravleva work seems to be an adult woman. The girl in Andriesi’s work has blonde hair, while the woman in Zhuravleva’s work has black hair. The feet of the girl in the Andriesi work wears shoes of the same color as her dress, whereas in the Zhuravleva work the woman is barefooted. In Andriesi’s work, the hand positioning of the girl holding the sphere is at its center, whereas in Zhuravleva’s work, the hand position extends to the back of the sphere. Both works have different backgrounds.

It is a perfectly personal point of view, but assuming that even if the Andriesi work relies on the Zhuravleva work, these differences might be enough to make them not similar and therefore, to not constitute copyright infringement.

In this case, the World Photography Organization investigated, but the document submitted by Andriesi confirmed that the work was not stolen from the Zhuravleva work and consequently the Andriesi work was maintained on the shortlist. It was not disclosed what documents were submitted by Andriesi.

Finally, I would like to emphasize that whether or not it constitutes a copyright infringement is totally different from an evaluation of a work. It may not be a copyright infringement, but it may be evaluated that there is a problem with a work that imitates the distinctive ideas of another person's work.

Just as there is a distance between "similar" and "infringement," there is also a distance between "no infringement" and "no problem as a work."

*1 Natsumi Hayashi, Today's Levitation, Seigensha Art Publishing, Inc., 2012.
*2 Oliver Smith, How an incredible coincidence sparked a Facebook plagiarism row, the Telegraph, February 2, 2015.
*3 Intellectual Property High Court Judgment, May 10, 2011, 1372 HANTA 222 (Appeal Instance in the Ruins Photography Case).
*4 Sahuc v.Tucker, 300 F. Supp.2d 461 (E.D. La.2004).
*5 Tokyo District Court Judgment, December 15, 1999, 1699 HANJI 145 (First Instance in the Watermelon Photography Case).
*6 Tokyo High Court Judgment, June 21, 2000, 1765 HANJI 96 (Appeal Instance in the Watermelon Photography Case).
*7 Brian Boucher, This Dreamy Image Is Sparking a Perplexing Fight Over Artistic Plagiarism, artnet news, April 5, 2017.

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